Citation 43 Cal. 4th 541, 182 P.3d 513, 76 Cal. Rptr. 3d 172
In re Miranda
Filed 5/5/08
IN THE SUPREME COURT OF CALIFORNIA
In re ADAM MIRANDA
S058528 & S060781
)
on Habeas Corpus.
Los Angeles County Superior Ct.
Nos. 362694 & 372157
Petitioner Adam Miranda is confined at San Quentin State Prison pursuant
to a September 17, 1982, judgment of death rendered in the Los Angeles County
Superior Court. In that proceeding, petitioner was convicted, inter alia, of the first
degree murder of Gary Black (Pen. Code, §§ 187, 189),1 with a finding that the
murder was committed while petitioner was engaged in the attempted commission
of a robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)). We
affirmed petitioner’s conviction (People v. Miranda (1987) 44 Cal.3d 57) and
denied three prior habeas corpus petitions challenging his conviction and sentence
(In re Miranda, Nov. 12, 1987, Cr. 25350; In re Miranda, June 21, 1989,
S007965; In re Miranda, Oct. 13, 1993, S028518).
The only evidence introduced in aggravation during the penalty phase of
petitioner’s trial concerned the killing of Robert Hosey some two weeks before the
capital crime. (After the conclusion of the capital trial, petitioner pleaded guilty to
the second degree murder of Hosey, and a judgment of guilt was entered on
February 1, 1983.) Joe Saucedo testified that petitioner stabbed Hosey after an
1
Except where otherwise noted, unlabeled statutory references are to the
Penal Code.
1
argument over “bunk” (cigarettes falsely claimed to be laced with phencyclidine
(PCP)) that Hosey had sold to Saucedo and another individual. Saucedo had been
charged with the murder of Hosey, but in exchange for his agreement to testify
against petitioner, the charge was reduced to assault with a deadly weapon, and on
his plea of guilty, he was granted probation.
At the time of petitioner’s capital trial, the prosecution possessed a letter
written by Los Angeles County jail inmate Larry Montez (the Montez letter)
recounting Saucedo’s admission to Montez that he had personally killed Hosey.
The Montez letter contradicted Saucedo’s testimony at petitioner’s capital trial that
petitioner had stabbed Hosey while he (Saucedo) had tried to stop the killing.2 In
2
The handwritten letter, which was first disclosed to petitioner in 1996
through discovery in federal habeas corpus proceedings, reads as follows:
“I ask him about his Crim.
“Oct-23 80
“Joe Antonio Saucedo his Eighteen YeAr Old. his In My dorm—3300, his
Cellblock Is Number 16. I Was Asking him About his Case he told Me to Sware
that I Won’t Snich On him So I told him thAt Won’t Snich!
“this is What he told Me And Asacly the SAme Way Im Going to Write It.
At first he told Me that he StAped him. So I told him If he WAs Shore that he
StApe him, he told Me thAt One Of his homboy StAped him. So I Ask him WhAt
WAs his NAme he told Me TomAs. AnywAy I wAnt him to tell Me the Story
how It ReAlly hAppen Ok this WhAt he told Me.
“He WAs At his Girlfriend And One Of his homeboy Came Over his Girl
friend House! And Ask him If he Know Ware to Get Some Angel dust! So he told
him thAt he Know Ware to Get Some. So his homeboy Ask him to tAke him. So
Joe Antonio Saucedo told him to Wait that his Going to Ask his Girlfriend If he
Could Go So he Ask her And She told him to Go. but to Come back fast So!—
they Went, he told Me thAt he Want to A blackdud house but thAt he WAsnt
around! he didn’t told Me thAt they Knocked At the door, but that they Want by
his house. So then they So him down the block So they Went to him And Joe
Antonio Saucedo Asked him to Get him A dime Of Cools As Known As Angel
dust. So TomAs Gave him the Money And he Went to Get the Cool When he
CAme back he told Me thAt the Cool didn’t Smell Like dust So then thay told him
(footnote continued on next page)
2
his habeas corpus petition challenging his death sentence in the Black case,
petitioner alleged the Montez letter could have been used to effectively impeach
Saucedo’s testimony and thus was material favorable evidence, and the
(footnote continued from previous page)
thAt the Cool WAsn’t No Go. So then the blAck Guy told him thAt he Going to
Go bAck And Get the Money bAck. So toMAs told him to Get On the CAr thAt
he And Joe Antonio WAs Going With him. So the blAcKguy Get On the CAr
And he told Me that they Went Around the Corner but thAt they didn’t found the
Guy thAt Sold the Cool to the blackGuy. So toMAs diseded to tAKe him to the
barrio. So Joe Antonio Saucedo told Me thAt befor Geting to the bArrio thAt he
told the blACK Guy to Jump Off the CAr. but thAt he didn’t! So WhAn they Got
to the bARRio he told Me that thay Got Off the CAr And then TomA told his
homeboy Toro thAt the MAjAte, Sold him Some fuckup Cools And thAt they
WAsn’t No Good So toro hite him Ones! So then the blAckdud Got ScAre And
Run So then he told Me thAt he So his home boys Runing After him And thAt
Nobody Couldn’t Cash him. So Joe Antonio Saucedo Ran After him And Cout
him by his Short from the back Of his Neck. he told Me thAt When he Cout him
he told him that him And tomAs Wore Going to tAKe him bACK, but thAt he
WAnted to Run. And tomAs Came And [illegible] him And Joe Antonio Saucedo
toKe A Knife Out And StAped him. he didn’t told Me how Many time, but he
told Me thAt he knows WAre the Knife Is. At the End he told Me thAt his
Girlfriend Is Going to testefid. In Court thAt his WAs With her At the Movie, but
he told Me thAt Shes lie for him Cause She Loves him. he SAy thAt he WAsn’t
With her I Ask him how does it fill StApping A Preson he SAy like StApping A
WAter Melon. then it wAs court time Saucedo told that he throw the Knife And
the White hat in the River Cause that Was [illegible] to hide the Evidence.
“Joe Antonio Saucedo
“Dorm 3300 Bk. 5846-009
“11/13/80.
Lyle Mayer #12772
“Obtained
this
from
“Me.
“Pending
other
information
“Larry
Montez
“Louis
Berman
“#15099”
3
prosecution’s nondisclosure of the letter violated its obligations under Brady v.
Maryland (1963) 373 U.S. 83 (Brady). Petitioner also alleged that three other
individuals (“Jimmie Barnes,” Marvin Sanchez, and Steven McDonald), to whom
Saucedo had admitted his participation in the Hosey stabbing, had advised the Los
Angeles County District Attorney’s Office of their knowledge and willingness to
testify against Saucedo in the Hosey case. Petitioner further alleged that Barnes
and Sanchez, as well as Montez, were provided benefits (money or favorable
dispositions in unrelated criminal matters) in return for their willingness to testify
against Saucedo, and that the prosecution in petitioner’s capital case had used
these undisclosed facts to pressure Saucedo into testifying against petitioner.
Petitioner alleged these facts could have been used at his capital trial to impeach
Saucedo’s testimony by showing Saucedo had a motive to testify favorably to the
prosecution. In a separate petition, petitioner alleged the same facts as a basis for
challenging his second degree murder conviction in the Hosey case. We ordered
the two petitions consolidated.
We issued an order to show cause why petitioner should not be granted
relief from his death sentence and his second degree murder conviction on the
ground the prosecution had failed to disclose material exculpatory evidence as
alleged. Respondent denied petitioner’s allegation that the prosecution had failed
to disclose the evidence. We subsequently ordered an evidentiary hearing and
appointed as referee the Honorable Roger W. Krauel, Judge of the San Diego
County Superior Court, to determine whether petitioner’s trial counsel had
actually received the Montez letter before entry of judgment in the Black and
Hosey cases. The referee’s report supported petitioner’s allegation that his trial
counsel had never received the Montez letter.
Upon consideration of the referee’s first report, we ordered that a second
reference hearing be conducted and directed Judge Krauel to take additional
4
evidence and make findings of fact on several specific questions. Judge Krauel
subsequently conducted a second hearing, taking both documentary and
testimonial evidence. On August 20, 2004, he filed his second report. The second
report, like the first, supports petitioner’s allegation that his trial counsel did not
receive the Montez letter.
The referee’s second report also finds that the prosecution had in its
possession before the penalty phase of petitioner’s capital trial numerous
additional items of evidence pointing to Saucedo’s having killed Hosey that were
not disclosed to the defense. Had these items been timely disclosed, the second
report finds, the defense would have used them to effectively cross-examine
Saucedo, impeaching him on a matter that was of major significance concerning
whether the penalty jury would recommend life in prison or the death penalty for
petitioner.
The referee’s second report further finds that Larry Montez wrote the
Montez letter while he occupied a jail cell next to Saucedo’s and signed the letter
either during or after an interview with detectives. The report details Judge
Krauel’s findings that the information contained in the Montez letter is credible,
that Saucedo’s confession to Montez is corroborated by evidence from several
other persons (to each of whom Saucedo gave similar confessions), that the
prosecution had sufficient belief in the credibility of the information contained in
the Montez letter that it entered into an arrangement with Montez (for early release
on a jail sentence) to secure his future testimony against Saucedo, and that
petitioner’s trial counsel would have effectively cross-examined Saucedo
regarding the information contained in the Montez letter had it been timely
disclosed. The second report finds that Montez would have been available as a
witness to the defense and would have testified credibly in the penalty phase of
petitioner’s capital trial, in conformity with what he had stated in his letter.
5
The referee’s second report further finds that Saucedo made statements to
Jimmie Barnes, Marvin Sanchez, and Steven McDonald about his role in the
Hosey killing that differed from his testimony at petitioner’s capital trial and that
paralleled, in each case, the account of his confession contained in the Montez
letter. Additionally, the second report finds that disclosure to petitioner’s trial
counsel of information about the prosecution’s arrangements with Barnes and
Sanchez would have led to useful defense evidence and that, had the evidence
been disclosed to petitioner, his trial counsel in the Hosey case would have
advised him not to plead guilty, and he would not have so pleaded.
In sum, the referee’s second report, like the first, generally supports
petitioner’s allegations. Accordingly, and for the reasons more fully explained
below, we conclude petitioner has demonstrated entitlement to relief.
BACKGROUND
Evidence presented at trial
The facts of record concerning both the Black murder and the Hosey
murder are recited in our opinion in petitioner’s direct appeal. (People v.
Miranda, supra, 44 Cal.3d at pp. 71-75.) Evidence in the Black case showed, in
brief, that shortly after 2:00 a.m. on September 27, 1980, petitioner and his
codefendant, Arnold Gonzalez, entered an AM-PM minimarket in Los Angeles
and asked to buy beer. Gary Black and Kelly Chandler were working behind the
counter. Chandler said it was too late to buy beer. Gonzalez then asked to buy a
pack of cigarettes and handed Chandler a dollar. As Chandler was giving
Gonzalez his change, he noticed petitioner pointing a gun at him. Petitioner said,
“This is a holdup . . . put all the money in a brown paper bag.” Black replied,
“Okay.” Gonzalez looked in the direction of a television on which the store’s
security system displayed a picture of activities at the scene. Immediately
6
thereafter, there was a gunshot and Chandler began to yell and scream; Black had
been wounded. Gonzalez grabbed petitioner’s shirt and tried to get him to leave
the store, urging him to shoot Chandler. Petitioner fired two shots at Chandler and
fled. Chandler crawled to the telephone and was able to call an operator to report
the shooting. Donna Navarro, a customer who was then filling her car’s gas tank
outside the store, testified she heard a shot, some screaming, and a few more shots.
She then saw Gonzalez, followed by petitioner, leaving the store. She was certain
of her identification of petitioner because she had attended junior high school with
him. Black died as a result of the shooting; Chandler suffered injuries requiring
two hospitalizations and emotional trauma for which he spent 10 days in a mental
hospital. At trial, petitioner admitted shooting Black and Chandler, but denied
having intended to rob the store.
Evidence about the killing of Robert Hosey, which occurred approximately
two weeks before the robbery and murder of Gary Black, was the only aggravating
evidence the prosecution presented at the penalty phase. As set forth in our
opinion, Saucedo testified as follows: “On September 12, 1980, he and Tomas
Martinez bought two PCP cigarettes from Hosey. After the purchase, Saucedo and
Martinez discovered the cigarettes did not contain PCP. The two men then took
Hosey in Martinez’s vehicle and drove around looking for the person from whom
Hosey had obtained the cigarettes. They were unable to find this individual and
drove to Saucedo’s residence.
“When they arrived at Saucedo’s house, a number of individuals, including
[petitioner], began arguing with Hosey concerning the ‘bunk’ he had sold to
Martinez and Saucedo. Saucedo observed a knife in Hosey’s back pocket and
removed it. [Petitioner] asked for the knife and Saucedo gave it to him. During
the argument, someone pushed Hosey down to the ground. Hosey got up and
began running down the street. [Petitioner] ran after him. Martinez and Saucedo
7
reentered Martinez’s car and began chasing Hosey. Shortly thereafter Saucedo got
out of the car, ran towards Hosey, and tripped him. At this point [petitioner]
‘jumped on top of [Hosey] and started stabbing him.’ Hosey tried to stand up and
begged [petitioner] not to kill him. [Petitioner] grabbed Hosey by the hair and
continued stabbing him. Saucedo tried to separate the two men, and in the
process, Saucedo ‘got stabbed in the hand.’ Saucedo returned to his car and found
a shirt which he put around his hand to stop the bleeding. Hosey later died as a
result of multiple stab wounds to the face and neck.
“Saucedo also testified that when they first arrived at his house, several
girls, including Patricia Torres, were standing outside. At trial, Patricia Torres did
not recall the events of that evening. She had made a prior statement, under oath,
at the district attorney’s office, and portions were read into the record at trial. In
the prior statement, Torres had corroborated Saucedo’s version of the events. She
stated that when Saucedo and Martinez brought the man (later identified as Hosey)
to the apartment, she thought Hosey had ‘ripped [Martinez] off.’ She noticed that
[petitioner] had a knife and was telling Hosey to give back the money. [Petitioner]
was holding the knife about two inches away from Hosey’s neck. Torres saw
someone push Hosey onto the ground. Hosey then ran down the street. Torres
noticed [petitioner] and ‘two other guys’ following after Hosey. Martinez and
Saucedo then got in the car and went down the street. Later in the evening
Saucedo returned with his hand wrapped in a blood-soaked shirt.
“Saucedo was charged with murder with respect to the death of Hosey. In
exchange for his agreement to testify, the charge was reduced to assault with a
deadly weapon, and, upon a plea of guilty, he was given probation.
“[Petitioner] did not testify nor did he present any mitigating evidence at
the penalty phase. At the time, he had been charged but not tried for the Hosey
murder.” (People v. Miranda, supra, 44 Cal.3d at pp. 92-93, fn. omitted.)
8
Evidence presented at the first reference hearing
At the first reference hearing, the declarations of Joe Ingber and H. Clay
Jacke, Sr., petitioner’s appointed trial counsel in the Black case, were received into
evidence by stipulation, and both attorneys testified in person. Each stated he was
never told about, was never aware of, and had never received the Montez letter
prior to entry of judgment.
Ingber, petitioner’s lead trial counsel, testified he first saw the Montez letter
in 1996, when petitioner’s current counsel showed it to him. Had he been aware
of the letter while he was representing petitioner, Ingber stated, he would have
conducted petitioner’s defense differently and could have used the letter to
“decimate” Saucedo’s testimony on cross-examination. Had he received the letter,
he would have maintained it in his case file, which he maintained in storage until
1991, when he turned it over to a representative of current counsel’s firm. Ingber
wrote letters seeking discovery to then Deputy District Attorneys Lance Ito and
Frederick Horn, the assigned prosecutors during pretrial proceedings, and filed one
motion for discovery. Ito never informed Ingber of the existence of an “open file
policy,” and Ingber was unaware of any procedure in Los Angeles County
permitting defense counsel to examine a prosecutor’s witness files.
H. Clay Jacke, Sr., was appointed as cocounsel for petitioner on March 24,
1982, about two and one-half months before petitioner’s capital trial began. He
received from Ingber and examined a copy of the “murder book,” containing
materials investigating and arresting officers had compiled in the case. Murder
books typically contain Brady material. (See Brady, supra, 373 U.S. 83.) The
murder book did not contain the Montez letter. Jacke did not have an
understanding with the district attorney permitting him to go to the latter’s office
to review his files and had never heard of the term, “open file policy.” Nor, when
Jacke later tried a case being prosecuted by Ito, did Ito indicate he would provide
9
discovery through any such policy. Jacke was certain he had never seen the
Montez letter because it was unique, being a confession to the crime by a witness
in the case and memorably contained the word “majate,” a derogatory reference to
Blacks. Had he received the letter, he would have taken steps at trial that he did
not take, such as interviewing and subpoenaing Montez as a witness, cross-
examining Saucedo about his statements as recounted in the Montez letter,
interviewing Detective Lyle Mayer regarding the circumstances of his receipt of
the letter, and obviating or rebutting the prosecution’s closing argument that no
evidence existed that Saucedo killed Hosey because the defense had presented no
such evidence.
The March 17, 1997, declaration of Attorney Albert Garber was received
into evidence by stipulation. Garber was petitioner’s appointed trial counsel in the
Hosey murder case, which trailed the Black case. In the penalty phase of the
Black case, the People introduced in aggravation evidence about the Hosey killing.
After petitioner received the death penalty for killing Black, the prosecution
pursued a first degree murder charge against him in the Hosey matter and an
allegation of multiple murder (based on the Black conviction). Petitioner, on
Garber’s advice, pleaded guilty to the second degree murder of Hosey, with the
agreement that if the Black conviction were to be reversed on appeal the People
would not amend the information in that case to charge multiple murders. As the
factual basis for the plea in the Hosey case, the court relied on the testimony from
the penalty phase of the Black case.
Garber declared he was never told about, was unaware of, and did not
receive the Montez letter prior to the entry of judgment in the Hosey case. Garber
maintained his case file intact until 1992, when he allowed petitioner’s current
counsel to review and copy it.
10
Charlotte Strother, a paralegal for petitioner’s habeas corpus counsel with
the law firm known then as Caldwell, Leslie, Newcombe, & Pettit, had been
responsible for maintaining petitioner’s case files since 1990. In the course of her
duties, Strother went to the police department to obtain a copy of the murder
books relating to the Black and Hosey cases. She did not find the Montez letter in
either the Black or Hosey murder books. She had obtained and personally copied
Ingber’s case file on petitioner and had kept it intact since. The Montez letter is
not and was not in Ingber’s file. Letters from Ingber to the prosecutor requesting
discovery and from the prosecutor to Ingber providing discovery, however, were
in the file. Strother also obtained and copied Garber’s file on petitioner; the
Montez letter was not there.
The referee also received evidence from the three prosecutors who handled
petitioner’s capital case during its progress through the municipal and superior
courts: then Deputy District Attorneys Lance Ito (now a judge of the Los Angeles
County Superior Court), Frederick Horn (now a judge of the Orange County
Superior Court), and Curt Hazell (now a special operations assistant district
attorney). By stipulation, the declarations of the three prosecutors were admitted
into evidence; Judge Ito also testified at the hearing.
Judge Ito was the deputy district attorney assigned to petitioner’s case
through the preliminary hearing. He recalled seeing the Montez letter during the
time he was prosecuting petitioner’s case. The letter was in a manila clasp-type
envelope in the rear of a file folder. Judge Ito testified that he did not recall
disclosing or delivering the Montez letter to petitioner’s trial counsel. He kept an
inventory of the materials he received and filed in petitioner’s cases, and the
Montez letter is not listed thereon. When sending discovery material through the
mail to defense counsel, his custom and practice, although not invariable, was to
create a cover letter identifying the enclosed documents. It was also his custom
11
and practice to use a standard district attorney’s office form on which defense
counsel were to acknowledge their review of discoverable materials at the district
attorney’s office; the form normally would be kept in the district attorney’s files.
No form reflecting that trial counsel in petitioner’s cases had reviewed the district
attorney’s files existed.
When he was a prosecutor, Judge Ito maintained an “open file policy”; his
practice was to invite defense counsel to review his file, and although he could not
specifically recall doing so in petitioner’s case, he followed the same policy in this
as in other cases. Judge Ito’s practice was to advise defense counsel of his open
file policy. He testified that “[d]uring the course of the case, prior to the
preliminary hearing, I would ask them if they had everything that they needed.”
He also customarily sat down with defense counsel and the murder book, going
through it page by page to ensure that defense counsel had a copy of everything.
Additional information not previously included in the murder book would also be
turned over to defense counsel.
As a prosecutor in 1980, Judge Ito was mindful of his Brady obligations.
He “absolutely” considered the Montez letter to be Brady material and could think
of no reason why he would not have disclosed it, although without further
investigation he did not believe the letter necessarily was a statement by Saucedo.
Judge Ito acknowledged that a document like the Montez letter might be
temporarily withheld from the defense to allow the prosecution sufficient time to
conduct an investigation and to afford protection to the witness.
Following the preliminary hearing, then Prosecutor Horn assumed
responsibility for petitioner’s cases. Judge Horn has no memory of the Montez
letter and did not recall providing any discovery to the defense; he assumed when
he took over the cases that all previous discovery obligations had been met.
12
Immediately after jury selection began, Horn turned responsibility for the
Black case over to then Deputy District Attorney Hazell. Hazell also assumed
responsibility for the Hosey case. Hazell has no memory of the Montez letter or of
providing the defense any discovery. When taking over the cases, he assumed all
previous discovery obligations had been met.
Referee’s analysis and findings: first report
The referee filed his first report on June 4, 2002. In it, he stated:
“Petitioner’s trial counsel assert that they did not receive, or know about,
the Montez letter before the entry of judgment in either case. The trial record in
the Black and Hosey cases corroborates this assertion. No portion of the trial
record has been identified as indicating that defense counsel were aware of, or
were using, the subject matter of the Montez letter in representing petitioner
through the entry of judgment in the Black and Hosey cases.
“Respondent offered evidence that the general discovery practices of the
prosecutors assigned to the Black and Hosey cases were to provide the defense
with all discoverable materials, either by turning over the documents or providing
access to the prosecution files. However, respondent offered no evidence that
anyone involved in the prosecution of the Black and Hosey cases recalls that, prior
to entry of judgment in either case, the Montez letter was provided to anyone
involved in petitioner’s defense. A prosecution discovery transmittal letter and
file log were admitted into evidence. These documents did not contain any
reference to the Montez letter.
“It would be unreasonable to find that experienced defense counsel, in
defending against a charge of murder, were so inadequate in defending petitioner
that they:
13
“a. Failed to review thoroughly the contents of each item of discovery
received from the prosecutors and thereby overlooked the Montez letter; or
“b. Were aware of the contents of the Montez letter prior to the entry of
judgment and chose not to make some use of it.
“4. Conclusion
“In a habeas proceeding, the petitioner bears the burden of proving the
allegations by a preponderance of the evidence. In re Riddle [(1962)] 57 Cal.2d
848, 852.
“In support of the petitioner, the evidence showed that:
“a. The prosecutors lacked any specific recollection of providing the
Montez letter to the defense;
“b. There was no document which indicated that the prosecution provided
the Montez letter to the defense;
“c. There was no document which indicated that the Montez letter had
been logged into the prosecution’s file, or had been reviewed by the defense; and
“d. Defense counsel specifically represented that they did not receive the
Montez letter prior to the entry of judgment in either case.
“In support of the respondent, the evidence showed that:
“a. The prosecutors had general discovery practices; and
“b. The prosecutors stated that their general practices would provide to the
defense a discoverable item, such as the Montez letter.
“Petitioner’s evidence preponderates over the respondent’s evidence. In re
Pratt (1999) 69 Cal.App.4th 1294, 1318-1319. This court finds by a
preponderance of the evidence that defense counsel in the Black and Hosey cases
did not receive the Montez letter prior to the entry of judgment in either case.”
Although a referee’s findings on factual questions are not binding on us,
they are entitled to great weight when, as here, they are supported by substantial
14
evidence. (In re Johnson (1998) 18 Cal.4th 447, 461.) Respondent presented
testimony concerning the prosecution’s general discovery practices, but adduced
no evidence — such as a transmittal form, acknowledgment of receipt by
petitioner’s trial counsel, or a specific recollection on the part of Judge Ito —
tending directly to refute petitioner’s substantial showing that the Montez letter
was never received by the defense. Nor does respondent challenge the referee’s
finding that trial counsel in the Black and Hosey cases did not receive the Montez
letter prior to the entry of judgment in either case. Accordingly, we adopt that
finding.
Exceptions: first report
Before the hearing, respondent moved for access to trial counsel’s file; the
referee denied the motion. Respondent takes exception to the referee’s denial
order. We review the referee’s discovery rulings for abuse of discretion. (In re
Scott (2003) 29 Cal.4th 783, 814.)
The referee found respondent’s motion overbroad, in that it extended to
irrelevant documents. He ruled instead that respondent could issue a subpoena
duces tecum or a request for production from the files of petitioner’s trial counsel
for documents “relevant to the limited question of whether any of petitioner’s trial
counsel were in receipt of the Montez letter prior to the entry of judgment in the
respective criminal cases, for example: (1) the Montez letter itself or a copy
thereof; (2) each writing that contains any reference to the Montez letter; and
(3) each writing that indicates that [p]etitioner’s trial counsel were in receipt or
aware of the Montez letter.” The referee directed petitioner to respond to any such
request within 20 days of service with “[a]ll requested writings that are not
privileged” and “[a] privilege log for requested writings for which a protective
15
privilege is claimed.” Respondent issued the subpoena; petitioner replied that the
file contained no such information.
Respondent argues that petitioner put in issue the entire contents of his trial
counsel’s files by alleging counsel never received the Montez letter. Respondent
relies in particular on the allegations that “[t]he Montez letter is not in Joe Ingber’s
or Alan [sic: Albert] Garber’s trial files.” Respondent also asserts that by alleging
ineffective assistance of trial counsel (for failing to investigate whether Saucedo
killed Hosey) in an earlier habeas corpus petition we summarily denied in 1993,
petitioner forever waived any attorney-client privilege regarding counsel’s
competence. (See Evid. Code, § 958 [no privilege “as to a communication
relevant to an issue of breach, by the lawyer or by the client, of a duty arising out
of the lawyer-client relationship”].) Accordingly, respondent argues, the referee’s
ruling denying him access to trial counsel’s files precluded his testing counsel’s
testimony about the files’ contents against the best evidence in the case, i.e., the
files themselves.
The referee did not abuse his discretion in denying respondent’s motion for
access to trial counsel’s files. As the referee noted, the motion was overbroad in
seeking access to materials having nothing to do with the issues presented in this
case. The referee properly permitted respondent to tailor a subpoena duces tecum
or request for production of documents seeking only the items potentially relevant
to the question presented by our reference order. Moreover, as we have explained,
in filing his previous habeas corpus petition alleging ineffective assistance of
counsel, petitioner did not waive the privilege, he merely triggered an exception to
it that is not applicable in future proceedings. (See People v. Ledesma (2006) 39
Cal.4th 641, 695 [under Evid. Code, § 958, “the attorney-client privilege continues
to apply for purposes of retrial after otherwise privileged matters have been
disclosed in connection with habeas corpus proceedings”].)
16
In sum, having been permitted to request production of all conceivably
relevant materials in trial counsel’s files, respondent has shown no abuse of
discretion in the referee’s ruling. (In re Scott, supra, 29 Cal.4th at p. 814.)
Evidence presented at the second reference hearing
Our June 25, 2003, order for a second reference hearing directed Judge
Krauel to take evidence and make findings of fact on these additional questions:
“1. (a) Did Larry Montez write and/or sign the document dated October 23,
1980? [¶] (b) If the answer to question (1)(a) is yes, under what circumstances
was it written and signed? Would Montez have been available as a witness to the
defense? What would he have said? Is the information contained in the document
or about which Montez would have testified credible? Could and would the
defense have effectively cross-examined Saucedo regarding the information the
document contains? [¶] (c) If the answer to question (1)(a) is no, the referee need
make no further findings concerning the document unless petitioner contends it is
material even if not written or signed by Montez. . . .
“2. What did Saucedo tell Jimmie Barnes, Marvin Sanchez and Steven
McDonald about his role in the Hosey killing? Did Saucedo’s statements to
Barnes, Sanchez and McDonald differ from his testimony in petitioner’s trial and,
if so, how did they differ? Would disclosure to the defense of information
provided to the prosecution by Barnes, Sanchez and McDonald, and the
prosecution’s arrangements with those individuals, have led to useful defense
evidence and, if so, what? Could and would the defense have effectively cross-
examined Saucedo regarding the information provided by Barnes, Sanchez and
McDonald?
“3. If the undisclosed evidence (the letter and the prosecution’s
arrangements with Barnes, Sanchez and McDonald) had been disclosed to
17
petitioner, would petitioner’s trial counsel in the Hosey murder case have advised
him to plead guilty? Would petitioner have entered a guilty plea in that case?”
The evidence considered by the referee in response to our second reference
order consisted of factual stipulations by the parties, written declarations and other
documentary evidence (jointly submitted or admitted without objection), and live
testimony. The live hearing on the second reference order took place on June 24
and July 22, 2004. More specifically, the evidence included the following.
Joe
Saucedo
Joe Saucedo’s declaration was jointly submitted to the referee. Saucedo
(also known as Jose Saucedo, Joseph Saucedo, and “Turtle”) declared that he had
testified truthfully at petitioner’s preliminary hearing and capital trial. Saucedo
further declared, as he had testified then, that petitioner chased Robert Hosey and
stabbed him, while he (Saucedo) tried to stop the stabbing. Saucedo also declared
that a person named “Sam Nobel,” whom he knew from jail, had witnessed these
things.3
Saucedo’s declaration acknowledges that in 1980 or 1981 he was housed in
jail with Marvin Sanchez, Jimmy Barnes, Steven McDonald, and Abigail Molina,
but states he never told them anything about the murder of Robert Hosey. The
parties stipulated that if Saucedo had been called as a witness at the second
reference hearing, he would have testified consistently with this account and
would have testified, further, that he neither told Larry Montez the information
3
The declaration of Sam Clayton Noble, an inmate at North Kern State
Prison, was jointly submitted to the referee. Noble declared that he knew Saucedo
and had learned from counsel for petitioner that Saucedo had claimed Noble
witnessed the Hosey murder. Noble declared, “he is lying. . . . I did not witness
the murder of Mr. Hosey.” Noble also declared that he had neither seen nor
spoken with Saucedo since junior high school.
18
contained in the Montez letter nor asked Steven McDonald to tell authorities that
petitioner killed Hosey.
A chronology of the prosecution of Saucedo in relation to the Hosey killing
was introduced at the second reference hearing, together with supporting
documents from the prosecution’s files. As the chronology details, Hosey was
murdered on September 12, 1980, approximately two weeks before the murder of
Gary Black on September 27. Saucedo was arrested for the Hosey murder on
September 19, 1980; on October 3, petitioner was arrested and charged with both
the Black and Hosey murders. Saucedo was charged by information with the
Hosey murder in January 1981. After petitioner’s preliminary hearing in February
1981, petitioner was held to answer on the Black charges, but the Hosey charges
were dismissed.
In August 1981, then Deputy District Attorney Ito interviewed Saucedo
under oath and on the record before a court reporter. On September 2, Deputy
District Attorney Hazell recommended that Saucedo be permitted to plead to the
reduced charge of assault with a deadly weapon in the Hosey case, in exchange for
which Saucedo would agree to testify against petitioner. In a memo seeking
authority to offer Saucedo such a deal, Hazell wrote: “There is insufficient
evidence to hold Mr. Miranda in the [Hosey] stabbing without Mr. Saucedo’s
testimony.” A new complaint was filed charging petitioner again with the murder
of Hosey, and in November 1981 a preliminary hearing was held at which
Saucedo testified as expected. Petitioner thereafter was held to answer for the
murder of Hosey, and the information against Saucedo in the Hosey case was
amended to include a count of assault with a deadly weapon. Saucedo
subsequently was released on his own recognizance.
Respondent acknowledges that the district attorney requested witness
expenses for Saucedo, which were approved. Thereafter, as detailed above,
19
Saucedo testified as a state’s witness at the penalty phase of petitioner’s capital
trial. The following day, Saucedo pleaded guilty to assault with a deadly weapon
in the Hosey case, in return for which he was sentenced to time served in state
prison and placed on probation for two years.
Larry
Montez
Larry Montez’s August 30, 2002, declaration was jointly submitted to the
referee. In 1980, Montez was in custody and housed in the cell next to Saucedo.
Saucedo described to Montez how he had stabbed a Black drug dealer. Montez
wrote what Saucedo had told him in a letter (the Montez letter) and notified police
about what Saucedo had told him and about the letter. When police detectives
talked to him, Montez signed the letter, which “accurately describes what Saucedo
told me.” After he was released from custody, Montez met with one of the
detectives at a restaurant in the City of Wilmington, where he talked further “about
Saucedo and his killing of the Black guy.” In 1994, Montez found himself again
in jail with Saucedo, and he “got to talking with Saucedo because I was cutting his
hair. Saucedo told me again that he killed the Black guy and said, ‘at least I know
I got away with something.’ As far as Adam Miranda goes, Saucedo said, ‘fuck
that guy, he can go eat fish.’ ”
During the time petitioner and Saucedo were jointly charged with the
Hosey murder, Montez was offered a deal by then Deputy District Attorney Ito in
exchange for his testimony against Saucedo. On November 20, 1980, Ito wrote a
letter to Deputy Los Angeles City Attorney Timothy Hogan confirming a
telephone conversation in which Ito had informed Hogan that “Mr. Montez has
agreed to testify as a witness for the People at both preliminary hearing and trial
for an early release from the County Jail sentence he is serving” on an unrelated
matter. Ito’s letter also confirmed Hogan’s agreement that “given the severity of
20
the murder cases and the materiality of Mr. Montez’s information and testimony,
[Hogan] would not oppose a request by the District Attorney’s Office to modify
Mr. Montez’s sentence as outlined” in the letter.
Notwithstanding these arrangements, Montez ultimately was not asked to
testify at any trial. “If Adam Miranda’s lawyers had asked me to testify at his
trial,” he declared, “I would have been willing to testify about what Joe Saucedo
told me. I would have testified that Joe Saucedo admitted to me that he killed the
Black guy and that what Joe Saucedo told me I wrote down in the [Montez
letter].”
Marvin
Sanchez
Marvin Sanchez’s declaration, dated December 15, 2003, was jointly
submitted to the referee. Sanchez declared that in 1980 or 1981, he was confined
in a Los Angeles County jail unit where Saucedo and petitioner also were
confined. Saucedo told Sanchez he had stabbed a Black drug dealer over a bad
drug transaction. Saucedo said he had stabbed the dealer multiple times with the
dealer’s own knife, including in the face and upper torso, and then had thrown the
knife onto a riverbank. Saucedo “took full credit for the stabbing” and never told
Sanchez that petitioner had participated. Saucedo also told Sanchez that he
(Saucedo) planned to turn “state’s evidence” against petitioner, who was going to
prison anyway, and thereafter flee to Mexico.
In Sanchez’s conversations with petitioner, petitioner denied stabbing the
drug dealer. Petitioner told Sanchez he “had a feeling” that Saucedo was going to
turn on him and blame him for the stabbing. After speaking with Saucedo and
petitioner, Sanchez contacted then Deputy District Attorney Ito. Although
Sanchez did not speak directly with Ito, he met approximately three times with
21
Detectives Kotler and Avila, telling them “everything that [Saucedo] had told me
about the killing of the [B]lack drug dealer.”
After he met with the detectives, Sanchez’s case was dismissed and he was
placed in the witness protection program. On May 5, 1981, Sanchez was given
$150 through the program, and in the following month, then Deputy District
Attorney Ito applied to the court to obtain additional funds for him, submitting the
declaration of Deputy Sheriff Gary Kotler in support. In that declaration, Kotler
stated: “I have been advised by Deputy District Attorney Lance A. Ito of the
Hardcore Gang Division that Marvin Sanchez is a necessary and material witness
. . . because defendant Joe Saucedo related to Marvin Sanchez the manner in
which Penal Code Section 187 victim Hosey was stabbed to death with such
unusual particularity as to indicate that the source of the information was
intimately involved in the commission of the crime.” Sanchez was told by
prosecutors that he was going to be held in reserve “in case they needed [him] to
testify” against Saucedo. But he was never asked to testify.
If an investigator working for petitioner had spoken to him about Saucedo’s
confession, Sanchez “definitely would have answered his questions and told the
investigator what I knew. But, no one ever came to talk to me about the drug
dealer killing after the few times that I spoke to Detectives Kotler and Avila.”
“Jimmie
Barnes”
The declaration dated January 28, 2004, of “Jimmie Barnes” (whose true
name is Thomas Porter) was jointly submitted to the referee. Barnes explained
that in the early 1980’s, he had been housed at Men’s Central Jail in Los Angeles
along with Saucedo, known to him then as “Turtle.” Barnes remembers Saucedo
“bragging to me and others that he had killed someone and that it involved the
stabbing of a drug dealer. The way Turtle talked about it, I got the impression that
22
Turtle got his stabs in on the drug dealer.” Barnes told police detectives about
Saucedo’s statements and was moved to a medical unit in the jail. He was told
that if he agreed to testify against Saucedo, he would be released on his own
recognizance and kidnapping charges pending against him would be dismissed.
Barnes agreed and was released. Subsequently, he discussed with Deputy District
Attorneys Ito and Hazell the deal he had made with the detectives.
Barnes never met or spoke with petitioner. If he had been interviewed by
defense counsel at the time, he would have given them the same information he
gave to police detectives and Deputy District Attorneys Ito and Hazell.
Steven
McDonald
The declaration of Steven Wayne McDonald, dated December 15, 2003,
was jointly submitted to the referee. In 1980 or 1981, McDonald was incarcerated
in the Men’s Central Jail in Los Angeles. While housed in the “snitch” unit there,
McDonald encountered Saucedo (known to him as “Turtle”), who was housed
there also. At some point, Saucedo confessed to McDonald that he had stabbed
and killed a drug dealer over a deal that “went bad.” Saucedo said he stabbed the
man many times in the upper body and demonstrated how the man’s upper body
and arms shook as he was stabbed. Saucedo said he continued to stab the man
even after the man’s whole body was shaking violently.
Subsequently, Saucedo told McDonald that the latter should “lie for him”
and say that another inmate (whose name McDonald could not recall) had actually
killed the drug dealer. Saucedo threatened to kill McDonald or have other
Mexican inmates kill him if McDonald did not help him. Saucedo also said that if
McDonald did not cooperate, the “Mexican Mafia” would kill McDonald’s family.
McDonald felt he had no choice but to cooperate.
23
For a week, Saucedo coached McDonald on how to answer the detectives’
questions about “how the stabbing went down.” Saucedo said the story would be
more credible “coming from a [W]hite person” with a clean criminal history
instead of someone who was a Mexican. Pursuant to Saucedo’s instructions,
McDonald then contacted a Deputy Sweeny, a guard in the snitch unit who set up
a meeting with three detectives whose names McDonald could not remember.
During that first meeting, McDonald told the detectives the lies Saucedo
had instructed him to tell (viz., about another unnamed inmate confessing to the
murder of the drug dealer). At a second meeting, where Saucedo was present,
Saucedo told the detectives that the same inmate had confessed to him about the
murder of the drug dealer. At a third and final meeting, at which only two of the
detectives were present, McDonald was told “if I cooperated they would let me
go.” Thereafter, McDonald was moved, “for my protection,” to the Lynwood
substation, and two months later he was released. Before being released,
McDonald gave detectives his contact information, including the address at which
he lived for a year after his release, but no one contacted him.
If in 1980 or 1981 a defense investigator had contacted him and given him
assurances of protection, McDonald would have told the investigator what
Saucedo had said to him.
Abigail
Molina
Although our second reference order did not specifically request it, the
declaration of Abigail Bobby Molina, dated August 27, 2003, was jointly
submitted to the referee. In the early 1980’s, Molina was housed in the Los
Angeles County jail’s “snitch unit,” along with Saucedo and Montez. Saucedo
told Molina and Montez that he (Saucedo) had killed and stabbed a drug dealer
and was facing murder charges. Saucedo told Molina how the murder took place
24
and that it felt like “cutting through butter” when he stabbed the drug dealer.
Saucedo asked Molina to write a letter to Molina’s sister “telling her that Saucedo
was with her on the night of the murder.” Molina wrote and sent the letter as
requested.
Petitioner’s
counsel
H. Clay Jacke, Sr.
The declaration of H. Clay Jacke, Sr., trial cocounsel for petitioner in the
Black case, dated September 5, 2001, and a supplemental declaration dated June
11, 2004, were jointly submitted to the referee. Jacke also gave live testimony.
If when Jacke was involved with petitioner’s trial he had received the
Montez letter or learned of the information contained in the Montez declaration,
he would have interviewed Montez and then used the letter and any information
obtained to rebut Saucedo’s testimony in the penalty phase. Had Jacke possessed
the Montez letter, the prosecution would not have been able to close its penalty
phase presentation with the argument that the defense would have presented
evidence that Saucedo committed the Hosey murder if it existed; as it actually
occurred, however, the presentation of Saucedo’s testimony at the penalty phase
had been “devastating” to the defense.
According to Jacke, if the defense team had had Montez’s information at
trial, their strategy would have been “a full blown attack on Saucedo,” contending
that Saucedo was Hosey’s killer. The defense would have cross-examined
Saucedo and, if he denied killing Hosey, called Montez to the stand to show that
Saucedo was lying. Moreover, if the defense had learned of the information
contained in the declarations of Sanchez, Barnes, and McDonald, it would have
interviewed those witnesses, cross-examined Saucedo based on those interviews,
and called those witnesses to the stand to impeach Saucedo if he denied killing
25
Hosey. Had Sanchez’s, Barnes’s, and Montez’s credibility been attacked, the
defense would have shown that the prosecution itself had made special
arrangements with these persons in consequence of their having stated that
Saucedo confessed to killing Hosey. In Jacke’s view, these arrangements
demonstrated that the prosecution believed these witnesses’ statements and that
they would have made good witnesses against Saucedo. With full information,
Jacke thought, the defense would have been able “to destroy Mr. Saucedo as a
penalty phase witness” in the Black trial.
Joe
Ingber
The November 4, 1996, declaration of Joe Ingber, petitioner’s lead trial
counsel in the Black case, was jointly submitted to the referee. Ingber also gave
direct testimony at the second reference hearing.
According to Ingber, in the course of representing petitioner he never
received the Montez letter or any information concerning Montez, Sanchez,
Barnes, or McDonald. Had Ingber possessed the Montez letter and the
information in Montez’s declaration at the time of petitioner’s trial, he would have
cross-examined Saucedo in detailed fashion about the letter and its contents, which
he believed would have caused the jurors to question Saucedo’s credibility as the
primary aggravation witness at the penalty phase of petitioner’s trial. Had he
known that Saucedo had received funds from the prosecution, he also would have
cross-examined Saucedo regarding his motivation to make a deal and testify
against petitioner and would have used Saucedo’s arrangements with the
prosecution to argue against petitioner’s receiving the death penalty.
Had Ingber been provided with information about persons to whom
Saucedo had said things similar to things he had said to Montez, he would have
interviewed those persons and would have attempted to call them to the stand to
26
the extent he determined their testimony to be of value. In particular, had he been
aware of the information known to Jimmie Barnes he would have called Barnes to
the stand to impeach Saucedo and would have brought before the jury the fact
Barnes had been released from custody owing to information he provided about
the Hosey murder. Barnes and Montez would have corroborated one another, in
Ingber’s view, and cross-examination of Saucedo based on Barnes’s information
would have been effective.
Had Saucedo denied on the stand that he told Sanchez he had stabbed
Hosey, the defense, according to Ingber, could have used Sanchez’s testimony to
impeach Saucedo. The defense also could have pointed out that in return for the
information Sanchez gave law enforcement, certain criminal charges against him
had been dropped and he was relocated at taxpayer expense. In Ingber’s opinion,
the jurors would have viewed Saucedo’s testimony with “extreme caution” after
hearing Sanchez’s testimony.
Ingber further opined that if he had been aware of McDonald’s declaration
at the time he would have attempted to locate and corroborate McDonald’s
testimony and use it to impeach Saucedo. As McDonald’s statements
corroborated those of other witnesses, Ingber believed the resulting cross-
examination of Saucedo would have been effective.
Albert
Garber
The March 27, 1997, declaration of Albert Garber, petitioner’s appointed
trial counsel in the Hosey case, was jointly submitted to the referee. Garber also
testified in person. At the hearing, Garber stated that his memory of representing
petitioner in connection with the Hosey murder was “not too good, but I certainly
remember the document [i.e., his declaration] that I signed in 1997.”
27
Prior to petitioner’s pleading in the Hosey matter, Garber reviewed the
discovery provided by the prosecution, as well as the testimony and evidence that
had been presented in the Black trial. He was aware that Joe Saucedo was the
only witness to identify petitioner as Hosey’s killer, and he knew Saucedo was the
central prosecution witness concerning the Hosey murder.
During his representation of petitioner, Garber never saw the Montez letter
or any documents or information concerning Montez, Sanchez, Barnes, or
McDonald and the various arrangements with and payments to these individuals
made by law enforcement. The first time Garber saw such documents was in
March 1997, when petitioner’s federal habeas corpus counsel brought them to his
attention. As counsel for petitioner, Garber was familiar with the discovery
provided in the Hosey case, and if any of the documents in question had been
disclosed to him, he would either have kept a copy or recalled having seen it.
None of the documents, however, appear in petitioner’s file, which Garber has
kept under his custody and control since representing petitioner.
Nor are the documents of the type Garber would forget. In Garber’s view,
they are “critical” and of “such importance that they would have drastically
changed the strategy and tactics of this case.” Having reviewed the Montez letter
and the other documents attached to his declaration, Garber could say “without a
doubt that had I been given the attached documents I would not have advised
[petitioner] to plead guilty and I would not have concurred in the plea. However,
because this evidence was not provided and I was unaware of it, I advised
[petitioner] to plead guilty and I concurred in the plea.”
In Garber’s view, “Saucedo could never have withstood cross-examination”
based upon the Montez letter, the documents concerning payments made to
Saucedo, the evidence concerning deals made with other individuals to pressure
Saucedo to testify against petitioner, and other impeaching evidence. Given the
28
“explosive impact” of the evidence attached to his declaration, Garber “never
would have advised [petitioner] to plead guilty” to the Hosey killing.
Francis Bardsley
Francis Bardsley, a criminal defense practitioner who formerly had been
employed by the Los Angeles County Public Defender’s Office in positions
involving the supervision of trial attorneys, and who served as the first Public
Defender of San Diego County, testified as an expert on behalf of petitioner.
Bardsley’s May 18, 2004, declaration was jointly submitted to the referee, and he
testified in person.
After reviewing numerous documents related to this case, Bardsley opined
that the testimony of Joe Saucedo played “the central role” in the penalty phase of
petitioner’s capital trial. He further opined that the information contained in the
Montez letter relates to the most important issues in petitioner’s case and that the
information in the letter impeaching Saucedo is extremely credible. Disclosure to
petitioner’s defense team of the information provided to the prosecution by
Jimmie Barnes and the prosecution’s arrangements with him, Bardsley opined,
would have led the defense to useful evidence, and the defense could and would
have effectively cross-examined Saucedo regarding Barnes’s information.
Bardsley opined similarly concerning disclosure to the defense of the information
provided to the prosecution by Marvin Sanchez and the prosecution’s
arrangements with him. Disclosure of the information provided by Steven
McDonald would also have led the defense to useful evidence.
In sum, Bardsley opined: “The combination of Saucedo’s central role, the
importance of the information contained in the Montez letter, and the credibility of
the information contained in the Montez letter demonstrates that the defense
would have effectively cross-examined Saucedo with such information. The
29
impact from the information contained in the Montez letter would have
dramatically undermined the jury’s confidence in Saucedo’s credibility. The
cross-examination would have effectively eliminated the jury’s ability to rely upon
anything Saucedo said. The contradiction between Saucedo’s penalty phase
testimony and the admission of evidence contained in the Montez letter is stark,
palpable and undeniable.” “The defense would have been able to cross-examine
Saucedo regarding his knowledge of the[] deals and arrangements made by the
prosecution with [Montez, Barnes, and Sanchez]. Independently of such deals,
however, Saucedo obviously was aware of his statements and confessions to at
least five separate individuals. Moreover, in order for the prosecution to have
discharged its obligations under the rules of discovery and its constitutional
obligations . . . the prosecution would have had to have informed Saucedo of these
witnesses’ statements against him and the deals the prosecution had made with
them. Pursuant to these three deals, the prosecution had gathered more than
enough witnesses to seal Saucedo’s fate at trial. The defense could have
effectively argued that Saucedo had only one way out — to lie, cut a deal with the
prosecution and pin the crime on [p]etitioner.”
On cross-examination, Bardsley acknowledged he had tried cases in which
the prosecution presented testimony from jailhouse informants who received
benefits in return for testifying. He also acknowledged the prosecution at
petitioner’s penalty phase trial had urged petitioner’s lack of remorse and argued
factors in aggravation based on guilt phase evidence, in addition to the Hosey
murder evidence. But according to Bardsley, in 1982 capital juries in the Central
District of the Los Angeles County Superior Court were almost always returning
life verdicts on single robbery homicides and death verdicts only in multiple
homicide cases.
30
Petitioner’s
declaration
Petitioner’s testimony at the second reference hearing was presented by his
declaration and was limited to his answer to the question whether he would have
pleaded guilty to the Hosey murder if he had been privy to the undisclosed
information at issue. Petitioner declared that if the Montez letter and the
prosecution’s arrangements with Barnes, Sanchez, and McDonald had been
disclosed to him, he would not have entered a guilty plea in the Hosey murder
case.
Referee’s analysis and findings: second report
Judge Krauel issued “Referee’s Partial Rulings” dated July 9, 2004, stating
findings in response to parts 1 and 2 of our second reference order (see pp. 17-18,
ante) and filed his complete report, entitled “Referee’s Report of Proceedings,” on
August 20, 2004. At its outset, the referee’s second report summarizes the
referee’s findings as follows.
“The Murder of Black – Death Penalty Case.
“In People v. Miranda, Los Angeles County Superior Court Case No.
362964, Central Division, Adam Miranda (“Miranda” hereinafter) was found
guilty of murdering Gary Black during a store robbery. Miranda’s Habeas Corpus
Petition concerns, in part, the evidence to rebut the testimony of a prosecution
witness, Joseph Saucedo (“Saucedo” hereinafter), given during the penalty phase
of that trial.
“Among the various contentions made as to why the jury should
recommend the death penalty, the prosecution submitted evidence and argument
that Miranda had committed another murder. The prosecution called Saucedo to
testify that he had witnessed Miranda murder Robert Hosey (“Hosey” hereinafter)
by stabbing him numerous times.
31
“In arguing for the death penalty, the prosecution told the jury that had
there been any evidence that it was really Saucedo who killed Hosey, the defense
would have presented it. ‘It wasn’t [presented] because it doesn’t exist.’ . . .
“The Referee finds that the rebuttal evidence did exist; it was in the
possession of the prosecution before the commencement of the penalty phase of
the trial, and it was not disclosed to the defense. The rebuttal evidence that
pointed to Saucedo killing Hosey included:
“Larry Montez’s (“Montez” hereinafter) statement to police that Saucedo
had confessed to killing Hosey.
“Montez’s letter, written to the District Attorney, in which Montez recounts
the contents of Saucedo’s confession to the Hosey murder.
“The prosecution’s arrangement with Montez to secure his future testimony
to convict Saucedo of murdering Hosey.
“Jimmie Barnes’s (whose true name is Porter) statement to police that
Saucedo had confessed to killing Hosey.
“The prosecution’s arrangement with Jimmie Barnes to secure his future
testimony to convict Saucedo of murdering Hosey.
“Marvin Sanchez’s statement to police that Saucedo had confessed to
killing Hosey.
“The prosecution’s arrangement with Marvin Sanchez to secure his future
testimony to convict Saucedo of murdering Hosey.
“Miranda’s expert, Francis Bardsley, testified before this Referee that, at
the time that the penalty phase of the trial was conducted for the Black murder,
juries in the central division of the Los Angeles Superior Court were generally not
recommending the death penalty in a case involving a single incident of murder
committed during a store robbery. However, juries were recommending the death
32
penalty when it was shown that the defendant had committed another murder at
some other time. Bardsley’s opinion was not refuted.
“Thus, this Referee finds that the defense would have used the undisclosed
rebuttal evidence to effectively cross-examine Saucedo, impeaching him on a
matter that was of major significance concerning whether the jury would
recommend life in prison or the death penalty.
“The Murder of Hosey – Second Degree Murder Plea.
“In People v. Miranda, Los Angeles County Superior Court Case No.
[372157], Central Division, Miranda pled guilty to the second degree murder of
Robert Hosey.
“The Referee finds that if the undisclosed evidence had been disclosed to
petitioner, petitioner’s trial counsel in the Hosey murder case would have advised
petitioner not to plead guilty and petitioner would not have entered a guilty plea.”
Following this summary, the referee’s second report describes in more
detail the referee’s findings and the testimony and documentary evidence on
which they are based. Among other things, the referee’s second report states and
supports the referee’s findings that: “Larry Montez did write and sign the
document dated October 23, 1980, (hereinafter the ‘Montez Letter’)”; that
“Montez was incarcerated in Los Angeles when he wrote the Montez Letter” and
“[a]t that time, Saucedo was housed in a cell adjacent to Montez”; that “Montez
signed the letter either in the interview cell while being interviewed by detectives
or at a restaurant after his interview with the detectives”; and that “the information
contained in the Montez Letter is credible . . . .”
The referee’s second report also states that: “In describing Saucedo’s
statements, each person’s current description is consistent with the description that
that person gave the District Attorney twenty years ago. At this point, there is no
apparent reason for any of those persons to lie. . . . [¶] Further, the prosecution
33
had sufficient belief in the credibility of the ‘valuable and essential information’
contained in the Montez Letter about Saucedo’s confession to and description of
the Hosey killing that the prosecution entered into an arrangement with Montez.
To secure Montez’s future testimony to convict Saucedo of murdering Hosey, the
prosecution arranged for Montez to be released early on a jail sentence he was
then serving. . . . [¶] Finally, the credibility of Saucedo’s denial of making the
confessions to the Hosey killing is suspect. . . .”
Additionally, the referee’s second report details what Saucedo told Barnes,
Sanchez, and McDonald about his role in the Hosey killing and finds that
disclosure to the defense of information provided to the prosecution by Barnes and
Sanchez4 would have led to useful defense evidence. The second report finds
disclosure of McDonald’s information would not have been useful to the defense
since the “untruthful information” the prosecution possessed at that time “does not
implicate Saucedo.”
Exceptions: second report
Nothing in the referee’s second report undermines the findings the referee
made in his first report. Moreover, but for the finding that disclosure of
McDonald’s information would not have led the defense to useful evidence, the
referee found in petitioner’s favor on all of the additional questions we posed for
the second reference hearing.
As noted, the referee’s second report finds that in addition to the Montez
letter, the prosecution possessed but did not disclose evidence concerning
Montez’s statement to police that Saucedo had confessed to killing Hosey, the
4
In apparent typographical errors, the referee’s second report twice refers to
“Barnes” in the section labeled as, and devoted to, its discussion of information
provided by Sanchez.
34
prosecution’s arrangements with Montez to secure his future testimony against
Saucedo, Barnes’s statement to police that Saucedo had confessed to killing
Hosey, the prosecution’s arrangements with Barnes to secure his future testimony
to convict Saucedo of murdering Hosey, Sanchez’s statement to police that
Saucedo had confessed to killing Hosey, and the prosecution’s arrangements with
Sanchez to secure his future testimony to convict Saucedo. Respondent does not
dispute that these items existed or that the prosecution withheld them from the
defense notwithstanding they were “mainly favorable” to petitioner.
Respondent takes exception, however, to some portions of the referee’s
second report. Generally, respondent disagrees with the referee’s findings
concerning the impact the undisclosed evidence would have had if timely
disclosed to the defense.
First, respondent takes exception to the referee’s statement that “the
prosecution told the jury that had there been any evidence that it was really
Saucedo who killed Hosey, the defense would have presented it.” In respondent’s
view, the referee’s “interpretation of the prosecutor’s closing is incorrect” because
it “takes the prosecutor’s argument out of context.”
In closing, the prosecutor argued to the penalty phase jury: “Finally, I think
you can decide that if there were other people out there who were friends of
[petitioner] who really knew that Joe [Saucedo] did it, because Joe was there, and
since he has eliminated himself from the neighborhood and disappeared and
become a rat, those people could have certainly been brought forward by the
defense just as anyone could have been called from out of court to tell you some
factors in mitigation about this man. The subpoena power of the county marshal
and sheriff works for the defense as well as it does for us. They can say ‘please go
do this,’ and that subpoena would be served. They can say ‘appoint us an
investigator’ and that would be done, as it has been. It wasn’t because it doesn’t
35
exist.” Respondent argues that the prosecutor’s assertion “it doesn’t exist” was
“specifically directed to the lack of evidence of people from the neighborhood”
who knew petitioner and Saucedo and presumably could have, but did not, come
forward, and “did not apply” so as to suggest there was any lack of evidence from
other quarters that Saucedo committed the crime. That is, according to
respondent, the prosecutor’s assertion “it doesn’t exist” was not meant to
encompass the evidence that did exist — evidence the prosecution possessed from
its informants Montez, Sanchez, Barnes, and McDonald — none of whom,
respondent states, were “acquainted with petitioner or from petitioner’s
neighborhood.”
We conclude the referee did not significantly mischaracterize the
prosecutor’s closing argument. It seems unlikely the jury would have understood
the word “it” in the prosecutor’s comment “it doesn’t exist” to refer only to
evidence coming from people who lived in petitioner’s neighborhood, rather than
evidence concerning Saucedo generally. While the prosecutor mentioned that
Saucedo was “from the neighborhood,” he also remarked, broadly, that “anyone
could have been called from out of court to tell you some factors in mitigation”
and the “subpoena power of the county marshal and sheriff works for the defense
as well as it does for us.”
Second, respondent takes exception to the referee’s findings that the
information contained in the Montez letter was credible, “to the extent the Referee
relies on jailhouse informant McDonald.” As respondent points out, McDonald
admits he lied to detectives 20 years ago when he told them that an inmate “whose
name I cannot recall” (someone other than Saucedo) had confessed to the Hosey
killing.
McDonald’s declaration was only one of many evidentiary sources for the
referee’s findings. As the referee observed, Saucedo’s confession to Montez is
36
corroborated by evidence from several other persons who each related that
Saucedo confessed to them. “In describing Saucedo’s statements, each person’s
current description is consistent with the description that that person gave the
District Attorney twenty years ago. At this point, there is no apparent reason for
any of those persons to lie.” Moreover, the record contains substantial evidence to
support crediting McDonald’s current declaration over his former statements.
McDonald’s declaration explains that, in fact, it was Saucedo who confessed in
detail to the Hosey killing and that Saucedo told McDonald that if McDonald did
not help him by lying to the detectives, “he would kill me or that other Mexican
inmates would kill me. [Saucedo] also said that if I did not cooperate, the
Mexican Mafia would kill my family. I felt I had no choice but to cooperate with
[Saucedo].” McDonald having thus provided an explanation for his contrary
statements 20 years ago, and numerous other persons having provided similar
corroborating testimony, the referee had substantial grounds for crediting
McDonald’s current testimony along with other evidence in finding Montez’s
evidence credible.
Third, respondent takes exception to the referee’s findings that the defense
could have effectively cross-examined Saucedo regarding the information
contained in the Montez letter and provided by Barnes and Sanchez, pointing out
that Saucedo presumably would have denied confessing to anyone. But as
petitioner argues, the weight of the evidence would have been against such denial.
Nor does the fact Saucedo actually was impeached at petitioner’s trial
suggest that cross-examination of him based on the undisclosed witnesses’
testimony would have had no independent or additional effect.5 As petitioner
5
At the penalty trial, Saucedo admitted he had initially lied to police about
his presence at and involvement in the Hosey killing, and that he ultimately had
(footnote continued on next page)
37
points out, nothing that was actually presented at trial came close to presenting an
equivalent picture of Saucedo’s involvement in the Hosey killing.
The prosecution, as the referee stated, “presented Saucedo to the jury for a
single purpose, i.e., to testify that [petitioner] stabbed and killed Hosey.” Contrary
to respondent’s suggestion that “the jury was presented with a fair picture of
[Saucedo’s] credibility,” the prosecution painted Saucedo merely as “a person who
aided and abetted in this killing,” while petitioner was touted as “the man who was
willing to do it.” Saucedo denied having stabbed Hosey and painted himself as the
Good Samaritan trying to stop the killing. As petitioner’s trial counsel testified,
disclosure of the persons to whom Saucedo had confessed “would have allowed
[the defense] to destroy Mr. Saucedo as a penalty phase witness. This evidence
would have shown that Mr. Saucedo told at least five other people, all independent
witnesses unknown to each other, that he, not [petitioner], had killed Hosey.”
Fourth, respondent takes exception to the referee’s findings about what
Saucedo told Barnes, Sanchez, and MacDonald about his role in the Hosey killing,
“to the extent the referee fails to take into account that Saucedo denied making a
confession” at all. The record, however, reflects that the referee considered
Saucedo’s testimony and rejected it.
Fifth, respondent takes exception to the referee’s findings that Saucedo’s
statements to Barnes, Sanchez, and McDonald differed from his testimony at
petitioner’s trial but, again, only “to the extent that Saucedo denied ever making a
confession” and “asserts he told the truth when he testified at trial.” The exception
(footnote continued from previous page)
pleaded guilty to a charge of assault with a deadly weapon in connection with
those events.
38
is not well taken. As has been discussed, the referee considered Saucedo’s
testimony, found it not credible, and rejected it in favor of other record evidence.
Sixth, respondent takes exception to the referee’s findings that the
disclosure to the defense of information provided by Barnes and Sanchez would
have led to useful defense evidence. Respondent’s argument is difficult to fathom,
as respondent concedes disclosure would have led the defense to Barnes and
Sanchez, both of whom, of course, have declared they would have testified that
Saucedo confessed to them that he (Saucedo), not petitioner, had killed Hosey.
That Barnes and Sanchez, like the prosecution’s star witness Saucedo, were
jailhouse informants, while perhaps diminishing the value of their evidence to the
defense, hardly would have rendered it useless, as respondent asserts.
Seventh, respondent takes exception to the referee’s finding that disclosure
to the defense of information concerning the prosecution’s bargains with Barnes,
Sanchez, and others for their agreement to testify that Saucedo had admitted
killing Hosey would have led to useful defense evidence. The referee found the
defense would have used such information to argue that the prosecution lacked a
good faith belief that Saucedo was truthfully describing petitioner’s involvement
in that killing. Respondent asserts the referee failed to consider that Saucedo,
himself, had received a deal from the prosecution after Barnes and Sanchez were
given their deals, indicating, according to respondent, that “it was Saucedo the
prosecution ultimately believed was truthful.”
The record demonstrates that the referee was well aware of the dates and
details of the prosecution’s various contacts and arrangements with Saucedo. “We
have no reason to assume the referee failed to consider any significant fact.” (In
re Ross (1995) 10 Cal.4th 184, 202.) Respondent’s speculation concerning why
the prosecution ultimately chose to deal with Saucedo is beside the point, as even
if accurate it does not demonstrate the defense would have found evidence
39
concerning the various deals useless. The referee, moreover, made no finding
concerning the prosecution’s beliefs; his findings on the point related only to how
the defense would have used the undisclosed information at trial.
Eighth, respondent takes exception to the referee’s findings that had
petitioner’s trial counsel in the Hosey case possessed the undisclosed evidence, he
would have advised petitioner not to plead guilty to the Hosey murder and that
petitioner would not have so pleaded. While respondent does not attack the
accuracy of these findings per se, he contends the referee inappropriately limited
the scope of respondent’s cross-examination of petitioner and counsel on this
point.
Before Attorney Garber and petitioner gave their evidence, the parties
presented arguments to the referee concerning the scope of the third part of our
second reference order. That part read: “If the undisclosed evidence (the letter
and the prosecution’s arrangements with Barnes, Sanchez and McDonald) had
been disclosed to petitioner, would petitioner’s trial counsel in the Hosey murder
case have advised him to plead guilty? Would petitioner have entered a guilty
plea in that case?” Petitioner argued that in the context of the second reference
order as a whole, and in light of concerns about the attorney-client privilege and
the work product doctrine, petitioner and Garber should be asked the precise
questions posed in our order and further examination limited. Respondent
disagreed, noting a desire to “delve into what went into [Garber’s] decision-
making process before advising petitioner to plead guilty” in order that the referee
might better “judge the credibility of Mr. Garber and Mr. Miranda.” In ruling on
the scope of examination, the referee began by observing that in the first two parts
of our second reference order, we posed “particularized follow up, background,
circumstantial sorts of questions” while the questions in part 3 call “for a yes or no
answer.” Accordingly, the referee ruled, “I believe and find that the questions
40
posed in part 3 are dependent upon the answers that we have reached in parts 1
and 2 and the [July 9, 2004, partial] findings that I have made, and I believe it’s a
yes or no response [to the questions in part 3] and will limit the hearing to that.”
Later, the referee modified this ruling by allowing for “appropriate” followup
questions. Such questions, the referee indicated, would relate to trial counsel’s
“ability to remember and perceive” — having “the scope of does he remember the
case, does he remember the parties, does he remember talking to so and so” but
would not “get into the credibility of the informants and the credibility of the plea
arrangements or deals” covered by parts 1 and 2 of our second reference order.
Detailed examination concerning counsel’s and petitioner’s thought processes and
discussion, the referee opined, “goes beyond the scope of question 3.”
Ultimately, respondent was permitted to cross-examine Garber concerning
his memory of representing petitioner in the Hosey murder case. But when
respondent attempted to delve further into the basis for Garber’s assertion he
would have advised petitioner not to plead guilty, the referee sustained petitioner’s
objection.
After Garber testified, the referee obtained the parties’ agreement that
petitioner’s response to the question whether, in light of the referee’s July 9, 2004,
partial findings, he would have pleaded guilty to the Hosey murder, would be
obtained by way of declaration. Respondent acceded to this procedure only after
renewing an objection to the court’s earlier ruling limiting the scope of cross-
examination.
The referee was correct that the specific question our reference order posed
— whether petitioner’s counsel would have advised petitioner to plead guilty if he
had been apprised of the undisclosed evidence — called for a yes-or-no answer.
Nevertheless, respondent should have been allowed to test the credibility of
counsel’s assertion by asking him why he would have advised against a guilty
41
plea. If counsel had been unable to supply a good explanation, his inability might
have cast doubt on the credibility of his response.
Any error in this regard, however, was harmless. (People v. Watson (1956)
46 Cal.2d 818, 836.) The evidence withheld in this case was sufficiently strong
that its nondisclosure significantly altered the dynamics of petitioner’s
prosecution. Under the circumstances, we find it credible that a competent
attorney in possession of the undisclosed evidence would have advised against a
guilty plea to murder.
Finally, respondent takes exception to the referee’s not having admitted
into evidence the transcript of Charles Bates’s statement to the Los Angeles
County District Attorney. Bates was an inmate in custody near petitioner at Parker
Center in Los Angeles County who stated to prosecutors in 1980 that he had heard
petitioner state that he had “stabbed a Black guy” while Saucedo held the guy
down. Notwithstanding that our second reference order did not ask anything about
Bates, respondent moved in limine before the second hearing to admit Bates’s
statement, arguing it was relevant to our questions concerning whether disclosure
to the defense of information provided by Montez, Barnes, Sanchez, and
McDonald would have led to useful defense evidence. The referee denied
respondent’s motion and made no finding concerning Bates.
At the hearing, respondent argued Bates’s statement was relevant because,
“if petitioner’s counsel had presented Montez, Sanchez, Barnes, McDonald, and
Molina on rebuttal, the prosecution would have presented the testimony of Mr.
Bates. If Mr. Bates took the stand and denied the statements, he would have been
impeached with a prior inconsistent statement.” As respondent puts the point
now: “In determining what constitutes ‘useful’ evidence, it is submitted that one
must review not only what the defense evidence was, but also what evidence, if
any, could be introduced to rebut that defense evidence. In other words, defense
42
evidence is not ‘useful’ if it could be impeached or rebutted so as to provide no
advantage if presented.”
The major premise of respondent’s exception — that “if petitioner’s
counsel had presented Montez, Sanchez, Barnes, McDonald, and Molina on
rebuttal, the prosecution would have presented the testimony of Mr. Bates” —
appears implausible in light of the record, which includes most obviously the fact
the prosecution did not call Bates to testify at petitioner’s capital trial, as well as a
note to the file written by then Deputy District Attorney Ito indicating that Bates
had lied to prosecutors. Respondent’s other premise — that defense evidence is
not useful if it could be impeached — seems beside the point, as even if
respondent’s speculation that the prosecution might have called Bates to rebut
Montez, Sanchez, Barnes, McDonald, and Molina is accurate, respondent fails to
demonstrate that the undisclosed evidence concerning those persons would have
afforded the defense “no advantage” in the face of Bates’s statement. Evidence
obviously may be useful to a party even if it could be impeached or rebutted.
In any event, Bates’s statement was inadmissible hearsay. “ ‘A reference
hearing following issuance of an order to show cause is subject to the rules of
evidence as codified in the Evidence Code. (See Evid. Code, § 300.) Under those
rules, an out-of-court declaration is hearsay, and unless subject to some exception
permitting it to be admitted, should be excluded upon timely and proper
objection.’ ” (In re Scott, supra, 29 Cal.4th at pp. 822-823.) Unlike the
declarations included in the exhibits to the parties’ joint submission and the others
admitted into evidence by stipulation of the parties, the parties did not agree to the
admission of Bates’s statement. To the contrary, petitioner objected to admission
of Bates’s statement on hearsay grounds.
Respondent did not respond to the hearsay objection at the hearing nor does
respondent presently dispute the objection’s validity. Respondent asserts that if
43
the referee had determined Bates’s evidence was relevant but hearsay, respondent
“would have attempted to present Bates in person,” but even if credited that
assertion does not demonstrate the referee abused his discretion in excluding
Bates’s statement. As petitioner pointed out at the hearing, Bates was a “surprise
witness,” in that respondent had not sought to include his statement when the
parties were compiling their joint submission to our second reference order.
In sum, respondent’s exceptions to the factual findings contained in the
referee’s second report are not persuasive. Respondent neither disputes the
existence and nondisclosure of the various items of evidence we asked the referee
to inquire about, nor demonstrates that the referee lacked substantial evidence for
his conclusions respecting their potential usefulness to the defense. As previously
noted, in such circumstances the referee’s findings are entitled to great weight. (In
re Johnson, supra, 18 Cal.4th at p. 461.)
DISCUSSION
The procedural law applicable in this case may be summarized as follows.
When a prisoner collaterally attacks a judgment by petition for writ of habeas
corpus, he or she bears the burden of alleging and proving, by a preponderance of
the evidence, the facts supporting his or her claim for relief. (In re Sassounian
(1995) 9 Cal.4th 535, 546; People v. Duvall (1995) 9 Cal.4th 464, 474.) In issuing
an order to show cause in a habeas corpus proceeding, a court makes “ ‘an implicit
preliminary determination’ ” as to claims within the order that the petitioner “ ‘has
made a sufficient prima facie statement of specific facts which, if established,
entitle him to . . . relief . . . .’ ” (Sassounian, at p. 547, quoting In re Hochberg
(1970) 2 Cal.3d 870, 875, fn. 4.)
The substantive law governing this case may be summarized as follows.
The prosecution has a duty under the Fourteenth Amendment’s due process clause
to disclose evidence to a criminal defendant when the evidence is both favorable
44
to the defendant and material on either guilt or punishment. (In re Sassounian,
supra, 9 Cal.4th at p. 543, citing United States v. Bagley (1985) 473 U.S. 667,
674-678; see also Brady, supra, 373 U.S. at p. 87.) “Evidence is ‘favorable’ if it
. . . helps the defense or hurts the prosecution, as by impeaching one of the
prosecution’s witnesses.” (Sassounian, at p. 544.) “Evidence is ‘material’ ‘only if
there is a reasonable probability that, had [it] been disclosed to the defense, the
result . . . would have been different.’ ” (Ibid.; accord, Kyles v. Whitley (1995)
514 U.S. 419, 433-434.) Such a probability exists when the undisclosed evidence
reasonably could be taken to put the whole case in such a different light as to
undermine confidence in the verdict. (Kyles, at p. 434; In re Brown (1998) 17
Cal.4th 873, 886-887.)
After two reference hearings, the referee, as has been detailed, concluded
the prosecution possessed but did not timely disclose to the defense several items
of evidence that tended to rebut the testimony of the prosecution’s star penalty
phase witness, Joe Saucedo, and that contradicted the prosecutor’s suggestion in
his penalty phase closing argument that evidence indicating it was really Saucedo
who killed Hosey “didn’t exist.”
The Montez letter
The referee found that Larry Montez wrote and signed the Montez letter
and that the information contained in the letter is credible in two respects — “it is
credible that Saucedo told Montez that he had killed Hosey, as Montez reported in
the Montez letter [and] Saucedo’s confession to the Hosey murder is credible.”
The Montez letter satisfies all the Brady requirements. (See Brady, supra,
373 U.S. 83.) Clearly it is favorable to petitioner, involving as it does the primary
penalty phase witness’s detailed admissions, inconsistent with his trial testimony
inculpating petitioner, of the witness’s own actions in killing Robert Hosey,
45
destroying evidence, and developing a false alibi to deflect suspicion. It also is
material. As the referee found, counsel could have used the letter to effectively
impeach Saucedo’s testimony on cross-examination, to investigate and present
evidence of Saucedo’s guilt, and to obviate or refute the trial prosecutor’s closing
argument urging the jury to believe that if evidence existed that Saucedo had
killed Hosey, the defense would have presented it. Had it been provided, Montez
would have been available as a witness to the defense and would have testified in
the penalty phase of petitioner’s capital trial, credibly and in conformity with what
he asserted in the Montez letter.
Respondent does not deny that had they been properly placed before the
jury, Saucedo’s admissions would have met the Brady materiality standard.
Respondent argues, rather, that the Montez letter was not material within the ambit
of Brady because it was inadmissible hearsay. (Evid. Code, § 1200.) In this
connection, respondent misquotes Wood v. Bartholomew (1995) 516 U.S. 1, 5-6 as
stating that “evidence that is inadmissible at trial is not ‘evidence’ at all, for Brady
purposes.” As we previously have observed, in Wood “the United States Supreme
Court ultimately found inadmissible polygraph evidence not material under Brady.
However, Wood was not based on a per se rejection of inadmissible evidence as a
basis for a Brady claim. Wood found the evidence not material because, even
based on the assumption that this inadmissible evidence might have led
respondent’s counsel to conduct additional discovery leading to admissible
evidence, the evidence’s influence on the outcome of the case was speculative.”
(People v. Hoyos (2007) 41 Cal.4th 872, 919, fn. 28.) Accordingly, as Wood did
not establish that inadmissible evidence can never be material for purpose of a
Brady claim, it does not support respondent’s position here.
We need not decide in this case when, if ever, the prosecution’s duty to
disclose evidence favorable to a criminal defendant may extend to inadmissible
46
evidence, because it is clear that the undisclosed evidence here, including the
Montez letter, would have been admissible at petitioner’s capital trial. As long as
a witness is given an opportunity to explain or deny his or her prior inconsistent
statements (see Evid. Code, § 770), such statements are admissible for the truth of
the matter asserted as an exception to the hearsay rule (id., § 1235). At
petitioner’s trial, Saucedo would have had that opportunity and the Montez letter
therefore would have been admissible. Similarly, once Saucedo testified, the other
undisclosed evidence, including the testimony of the undisclosed declarants,
would have been admissible as well.
In accordance with the foregoing, we conclude that a reasonable probability
— that is, a probability sufficient to undermine confidence in the outcome of the
proceeding (United States v. Bagley, supra, 473 U.S. at p. 678) — exists that if the
Montez letter had been disclosed prior to petitioner’s trial, the outcome of the
penalty phase would have been different.
In the end, the trial judge, not the prosecutor, is the arbiter of admissibility,
and the prosecutor’s Brady disclosure obligations cannot turn on the prosecutor’s
view of whether or how defense counsel might employ particular items of
evidence at trial. “It is not the role of the prosecutor to decide that facially
exculpatory evidence need not be turned over because the prosecutor thinks the
information is false. It is ‘the criminal trial, as distinct from the prosecutor’s
private deliberations’ that is the ‘chosen forum for ascertaining the truth about
criminal accusations.’ ” (U.S. v. Alvarez (9th Cir. 1996) 86 F.3d 901, 905, quoting
Kyles v. Whitley, supra, 514 U.S. at p. 440; see also People v. Hoyos, supra, 41
Cal.4th at pp. 919-920 [“In deciding whether asserted Brady evidence is material
to defendant’s case, it is therefore appropriate to examine the effect of the
evidence on the actual joint proceeding in which defendant was tried”].) “To the
extent the prosecutor is uncertain about the materiality of a piece of evidence, ‘the
47
prudent prosecutor will resolve doubtful questions in favor of disclosure.’ ”
(Alvarez, at p. 905, quoting United States v. Agurs (1976) 427 U.S. 97, 108.)
The Prosecution’s Informants and Arrangements
We turn next to the claim the prosecution’s failure to disclose information it
received from Barnes, Sanchez, and McDonald, and about arrangements it made
with those informants as well as with Montez, violated its Brady obligations. (See
Brady, supra, 373 U.S. 83.)
Barnes’s information and arrangement
While incarcerated in the Los Angeles County jail, Saucedo related to
Jimmie Barnes numerous details about the Hosey killing. Barnes subsequently
was interviewed by an officer in the district attorney’s bureau of investigation.
Barnes said Saucedo told him that he (Saucedo), petitioner, and two other persons
all participated in stabbing Hosey at a place approximately one block from
Saucedo’s residence. Saucedo told Barnes he had established an alibi by getting
his girlfriend to agree to testify she and Saucedo were at the Egyptian Theatre the
night of the murder.
As the referee found, Saucedo’s statement to Barnes differs from his trial
testimony. Saucedo testified that after he tripped Hosey, petitioner jumped on
Hosey and stabbed him to death, while Saucedo tried to stop petitioner and was
injured in the attempt. Thus, at trial Saucedo characterized his involvement as that
of a Good Samaritan who risked his well-being trying to stop the killing, while
subsequently confessing to Barnes that it was actually he who had killed Hosey.
Barnes was allowed to plead guilty in an unrelated case to one count of robbery
with no immediate state prison time, in exchange for his testimony against
Saucedo or petitioner should it become necessary. The circumstances of the deal
were not disclosed to petitioner.
48
The referee also found that disclosure of Barnes’s information, and of the
prosecution’s arrangements with him, would have led to useful defense evidence.
Inter alia, disclosure would have enabled the defense to argue the prosecution
lacked a good faith belief that Saucedo was truthfully describing petitioner’s
involvement in the Hosey killing.
Sanchez’s information and arrangement
The referee found that Saucedo confessed to Sanchez that he had stabbed a
Black drug dealer multiple times in the face and upper torso over a bad drug
transaction. Saucedo told Sanchez he had used his own knife and had thrown it
onto a riverbank. Saucedo took full credit for stabbing Hosey and never said
petitioner had participated.
In April 1981, Sanchez received $150 through the witness protection
program. In June 1981, then Deputy Attorney General Ito applied for additional
funds, supplying the declaration of a deputy sheriff that stated: “I have been
advised by Deputy District Attorney Lance A. Ito of the Hardcore Gang Division
that Marvin Sanchez is a necessary and material witness in the within case because
defendant Joe Saucedo related to Marvin Sanchez the manner in which Penal Code
section 187 victim Hosey was stabbed to death with such unusual particularity as
to indicate that the source of the information was intimately involved in the
commission of the crime.” The court authorized the requested sum of $650.
Neither Saucedo’s inculpatory statement to Sanchez nor the fact that
Sanchez received witness protection funds was disclosed to petitioner. The referee
found that disclosure of Sanchez’s information and the prosecution’s arrangements
with him would have led to useful defense evidence. The referee also found that
the prosecution had dismissed pending charges against Sanchez when he agreed to
testify against Saucedo and that he was released and given money to relocate. Had
49
this information been disclosed, the referee concluded, the defense would have
used it to argue that the prosecution did not have a good faith belief that Saucedo
was truthfully describing petitioner’s involvement in the Hosey killing.
McDonald’s information and arrangement
The referee found that in the early 1980’s, Joe Saucedo confessed to fellow
inmate Steven McDonald that he had stabbed and killed a man over a drug deal
that had gone bad, but that Saucedo threatened to kill McDonald and his family
unless McDonald agreed to lie and say that another inmate had actually killed the
drug dealer. The referee further found that in December 1981, then Deputy
District Attorney Ito noted for the file that he had received a call from a deputy
marshal reporting that McDonald had contacted a sheriff’s deputy after
overhearing Saucedo “cop to his participation in the Hosey 187.” That Saucedo
had thus inculpated himself to McDonald was not revealed to petitioner. The
referee concluded, however, that McDonald’s information would not have led to
useful defense evidence because there was no substantial evidence the defense
would have been able to persuade McDonald to testify truthfully or to cross-
examine Saucedo effectively regarding McDonald’s information.
Montez’s
information and arrangement
On November 13, 1980, the district attorney’s office was informed that
Montez wished to “snitch off” Saucedo. Then Deputy District Attorney Ito
arranged with Deputy Los Angeles City Attorney Timothy Hogan that in exchange
for Montez’s information and agreement to testify against Saucedo, the city
attorney’s office would not oppose the district attorney’s request to modify
Montez’s 90-day sentence for a recent misdemeanor conviction to an appropriate
probationary term. The arrangement was never disclosed to petitioner. As earlier
noted, the referee found that if the evidence concerning Montez that the
50
prosecution possessed had been timely disclosed to the defense, Montez would
have been available as a witness for the defense and would have testified at
petitioner’s capital trial, credibly and in conformance with what he wrote in the
Montez letter concerning Saucedo’s confession to killing Hosey.
Petitioner’s trial counsel, Ingber, declared that if the undisclosed
information regarding Barnes, Montez, Sanchez, and McDonald had been timely
disclosed to him, he would have used it to impeach Saucedo at petitioner’s capital
trial. Counsel’s declaration is consistent with the referee’s findings that the
defense would have used the undisclosed evidence of the prosecution’s
arrangements with other potential witnesses to effectively cross-examine Saucedo.
The information and arrangements evidence set forth above is favorable to
petitioner since, like the Montez letter, it both involves and likely would have led
to the jury’s hearing of Joe Saucedo’s repeated, detailed admissions to stabbing
Hosey, destroying evidence, and developing a false alibi, all of which were
inconsistent with his trial testimony inculpating petitioner and favorably
characterizing his own role. The evidence also is material in that had the defense
been able to illuminate for the jury the pressure that was placed on Saucedo to
testify against petitioner, it is reasonably probable the defense’s impeachment
efforts would have borne fruit and the jury would have discounted Saucedo’s
testimony.
Moreover, the prosecution’s disclosure obligation turns on the collective
effect of all suppressed evidence favorable to the defense, not on the effect of such
evidence considered item by item. (Kyles v. Whitley, supra, 514 U.S. at p. 436.)
“While the definition of . . . materiality in terms of the cumulative effect of
suppression must accordingly be seen as leaving the government with a degree of
discretion, it must also be understood as imposing a corresponding burden. On the
one side, showing that the prosecution knew of an item of favorable evidence
51
unknown to the defense does not amount to a Brady violation, without more. But
the prosecution, which alone can know what is undisclosed, must be assigned the
consequent responsibility to gauge the likely net effect of all such evidence and
make the disclosure when the point of ‘reasonable probability’ is reached.” (Id. at
p. 437.)
Respondent argues that notwithstanding the undisclosed evidence was
mainly favorable to petitioner, it was not material because there is no reasonable
probability that its nondisclosure deprived petitioner of a fair trial. “Saucedo
would have vehemently denied ever making such confessions,” asserts respondent,
to the effect that all “the undisclosed evidence would have shown in this case was
that petitioner was not the actual stabber of Hosey. However, the undisputed
evidence still showed that petitioner was an aider and abettor to Hosey’s murder.”
We disagree the evidence was not material. The referee found that “the
credibility of Saucedo’s denial of making the confessions is suspect,” while “the
information contained in the Montez letter is credible” and “is corroborated by
evidence from other persons who each relate that Saucedo gave essentially the
same confession” to them. That the undisclosed evidence concerning Saucedo’s
confessions to the Hosey killing may be consistent with petitioner’s guilt of that
crime as well, on an aiding and abetting theory, does not undermine the referee’s
findings concerning the impact the evidence would have had at the penalty phase
of petitioner’s trial — viz., that “the defense would have used the undisclosed
rebuttal evidence to effectively cross-examine Saucedo, impeaching him on a
matter that was of major significance concerning whether the jury would
recommend life in prison or the death penalty.” (Cf. In re Hardy (2007) 41
Cal.4th 977, 1035-1036.)
Nor does the possibility of petitioner’s liability for aiding and abetting the
Hosey killing foreclose the referee’s further finding that had petitioner’s counsel
52
in the Hosey matter possessed the undisclosed evidence, he would have advised
petitioner not to plead guilty. While the undisclosed evidence does not
conclusively absolve petitioner of involvement in the Hosey murder, much of it
tends to exculpate him. Although Patricia Torres’s statement to police — that she
saw petitioner hold a knife by Hosey’s neck and, later, chase him down the street
— arguably is consistent with petitioner’s culpability as an aider and abettor, her
statement is the only evidence (apart from Saucedo’s self-serving testimony) that
petitioner aided and abetted the killing, and at trial she claimed she could not
remember what happened. Moreover, Torres was a friend of Saucedo who had
known him for four or five years and who lived in the neighborhood. Thus, had
the defense possessed all the undisclosed evidence — including Montez’s
statement that Saucedo had admitted chasing and stabbing Hosey and thereafter
persuading his girlfriend to falsely corroborate his story claiming otherwise —
petitioner might have argued it was likely that Saucedo had persuaded or coerced
Torres to give a similarly false statement.
In any event, the referee reasonably concluded that Saucedo’s testimony at
the Black penalty phase was a significant factor in Attorney Garber’s decision to
advise petitioner to plead guilty to the Hosey murder. Moreover, the court
ultimately relied upon and accepted Saucedo’s testimony as the factual basis for
petitioner’s guilty plea in the Hosey case.
Respondent cites U.S. v. Ruiz (2002) 536 U.S. 622, where the United States
Supreme Court held that the Constitution does not require prosecutors to disclose
material impeachment evidence prior to entering a plea agreement with a criminal
defendant. (Id. at p. 633.) In reaching this conclusion, the high court stressed the
Brady right’s relation to the fairness of a trial, along with the long-standing
recognition that a defendant may waive various constitutional rights in the context
of a guilty plea “despite various forms of misapprehension under which [he or she]
53
might labor.” (Ruiz, at p. 630.) The court also found persuasive the likely
detriment to the plea bargaining process and the efficient administration of justice
in a requirement that prosecutors disclose material impeachment evidence, noting
that “the added value . . . of the [preplea disclosure of material impeachment
evidence] is often limited, for it depends upon the defendant’s independent
awareness of the details of the Government’s case.” (Id. at p. 631.)
Ruiz does not foreclose relief from petitioner’s conviction of the Hosey
murder. Ruiz by its terms applies only to material impeachment evidence, and the
high court emphasized that the government there had agreed to “provide ‘any
information establishing the factual innocence of the defendant’ regardless.” (U.S.
v. Ruiz, supra, 536 U.S. at p. 631.) Here, although the undisclosed evidence
would indeed have served an impeachment function in petitioner’s penalty trial by
casting doubt on the veracity of Saucedo’s testimony, in the context of the Hosey
case the undisclosed evidence also would have tended to exculpate petitioner by
showing that another person did the killing.
Nor need we decide the broad question whether or to what extent the
prosecution has a duty to disclose evidence favorable to a criminal defendant
before the defendant pleads guilty.6 The prosecution here plainly had a duty to
disclose the evidence at issue before the penalty phase of petitioner’s capital trial
and, had it done so, petitioner necessarily would have received it before he
6
The question whether prosecutors must disclose material exculpatory
evidence before entering into a plea bargain has been addressed in other states and
in the federal courts. While some hold the failure to disclose such evidence
entitles a defendant to withdraw his or her guilty plea, others have reached the
opposite conclusion. (See cases cited in McCann v. Mangialardi (7th Cir. 2003)
337 F.3d 782, 787; Matthew v. Johnson (5th Cir. 2000) 201 F.3d 353, 361-362;
Rhoades v. Paskett (D.Idaho 2005) 2005 WL 3576845, p. *8; see also Sanchez v.
U.S. (9th Cir. 1995) 50 F.3d 1448, 1453.)
54
decided whether to plead guilty to the murder of Hosey. We therefore conclude
petitioner has demonstrated entitlement to relief from his second degree murder
conviction.
CONCLUSION
In S058528, habeas corpus relief is granted. The judgment of the Los
Angeles County Superior Court in People v. Miranda, 1982, No. 362694, is
vacated insofar as it imposes a sentence of death. Because the judgment
sentencing petitioner to prison is valid in all other respects, he is not presently
entitled to release.
In S060781, habeas corpus relief is granted. The judgment of the Los
Angeles County Superior Court in People v. Miranda, 1983, No. 372157, is
vacated. The superior court is to permit petitioner to withdraw his guilty plea.
Upon finality of this opinion, the Clerk of the Supreme Court is to remit a
certified copy of this opinion to the superior court for filing, and respondent is to
serve another copy thereof on the prosecuting attorney in conformity with Penal
Code section 1382, subdivision (b). (See In re Sixto (1989) 48 Cal.3d 1247, 1265-
1266; In re Hall (1981) 30 Cal.3d 408, 435, fn. 9.)
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
55
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re Miranda
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S058528 and S060781
Date Filed: May 5, 2008
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Attorneys for Appellant:
Kerry R. Bensinger, George R. Hedges and David Pettit, under appointments by the Supreme Court, for
Petitioner Adam Miranda.
__________________________________________________________________________________
Attorneys for Respondent:
Daniel E. Lungren, Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, George Williamson and
David P. Druliner, Chief Assistant Attorneys General, Carol Wendelin Pollack, Assistant Attorney General,
Sanjay T. Kumar, Robert S. Henry, Frederick Grab, Pamela C. Hamanaka, Susan Lee Frierson, Donald E.
de Nicola, James William Bilderback II, Michael A. Katz and J. Michael Lehmann, Deputy Attorneys
General, for Respondent State of California.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Kerry R. Bensinger
Bensinger, Ritt, Tai & Thvedt
65 N. Raymond Avenue, Suite 320
Pasadena, CA 91103
(626) 685-2550
George R. Hedges
Quinn Emanuel Urquhart Oliver & Hedges
865 South Figueroa Street, 10th Floor
Los Angeles, CA 90017
(213) 624-7707
J. Michael Lehmann
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2371
Original proceeding. Related to the automatic appeal People v. Miranda (1988) 44 Cal.3d 57 and a further murder conviction of the same defendant, involve claims the prosecution failed to disclose material exculpatory evidence.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Mon, 05/05/2008 | 43 Cal. 4th 541, 182 P.3d 513, 76 Cal. Rptr. 3d 172 | S058528 | Habeas (AA Post-Judgment) | complete | PEOPLE v. MIRANDA (ADAM) (S004464) |
Parties
| 1 | Miranda, Adam (Petitioner) San Quentin State Prison Represented by George R. Hedges Quinn, Emanuel, Urquhart, Oliver & Hedges 865 S. Figueroa Street, 10th Floor Los Angeles, CA |
| 2 | Miranda, Adam (Petitioner) San Quentin State Prison Represented by Kerry Bensinger Bensinger, Ritt, Tai & Thvedt 65 N. Raymond Avenue, Suite 320 Pasadena, CA |
| 3 | Miranda, Adam (Petitioner) San Quentin State Prison Represented by David Pettit Caldwell, Leslie, Newcombe & Pettit 1000 Wilshire Boulevard, Suite 600 Los Angeles, CA |
| 4 | Department Of Corrections (Non-Title Respondent) Represented by Attorney General - Los Angeles Office J. Michael Lehmann, Deputy Attorney General 300 South Spring St., 5th Floor Los Angeles, CA |
| Disposition | |
| May 5 2008 | Opinion: H.C. granted, penalty reversed |
| Dockets | |
| Jan 17 1997 | Petition for writ of habeas corpus filed By Attys George Hedges, David Pettit and Kerry Bensinger (47 Pp.) |
| Jan 17 1997 | Filed: 2 Vols. of Exhibits in support of Petn. |
| Jan 17 1997 | Received: Second Amended Federal H.C. Petn. (case No. Cv 89-7130-Rjk) |
| Mar 5 1997 | Informal response requested Letter sent to respondent requesting informal response (Rule 60); due 4-4-97. Any reply due within 20 days of service & filing of response. |
| Mar 26 1997 | Change of Address filed for: Counsel Kerry Bensinger. |
| Apr 3 1997 | Application for Extension of Time filed to file informal response. |
| Apr 8 1997 | Extension of Time application Granted To 4-21-97 To file Informal Response. |
| Apr 18 1997 | Informal Response filed (AA) |
| May 6 1997 | Application for Extension of Time filed To file reply To Informal Response. |
| May 8 1997 | Filed letter from: AG dated 5-7 (Advising Court Resp Failed to file Exhibit 1) with Exhibit attached. |
| May 14 1997 | Extension of Time application Granted To 5-20-97 To file reply To Informal Response. |
| May 20 1997 | Reply to Informal Response filed (AA) |
| May 20 1997 | Filed: Suppl Decl of Kerry Bensinger in support of Petn & Exhibits in support Thereof. |
| Dec 1 1997 | Motion filed By Petnr to Perpetuate Testimony (with P&A's and Declaration of Kerry Bensinger in Support.) |
| Dec 15 1997 | Opposition filed By Resp to Petnr's motion to Perpetuate Testimony. |
| Feb 2 1998 | Filed: Supplemental Declaration of Emilio E. Varanini,Iv, in support of Oppostion to motion to Perpetuate Testimony [from A.G.] |
| Feb 27 1998 | Filed: Petitioner's reply to Opposition to motion to Perpetuate Testimony |
| Apr 29 1998 | Order filed: Petitioner's motion to perpetuate testimony, dated December 1, 1997, is denied without prejudice to its renewal on a specific showing of current need. |
| May 11 1998 | Filed: Notice of change of Firm Name. |
| May 10 2000 | Order to show cause issued The Director of the Dept. of Corrections is ordered to show cause in this court, when the matter is placed on calendar, why the relief prayed for should not be granted on the ground that the prosecution failed to disclose material exculpatory evidence (i.e., the Montez letter and prosecution's arrangements with Montez, Barnes, Sanchez and McDonald) as alleged in the petition for writ of habeas corpus. The return shall be filed on or before June 9, 2000. ( Votes: George, C.J., Mosk, Kennard, Baxter, Werdegar, Chin and Brown, J.J.) |
| Jun 6 2000 | Application for Extension of Time filed to file return to OSC. |
| Jun 12 2000 | Extension of Time application Granted To 8/8/2000 To file Resp's return To the Order To Show Cause. |
| Aug 3 2000 | Application for Extension of Time filed to file return to OSC . (second request) |
| Aug 4 2000 | Filed: supplemental declaration of service by mail (of request for ext. of time). |
| Aug 7 2000 | Extension of Time application Granted to 10-10-2000 to file return to OSC. |
| Oct 3 2000 | Application for Extension of Time filed By resp to file return to OSC (3rd request). |
| Oct 11 2000 | Extension of Time application Granted To 12/11/2000 to resp to file return to the OSC. |
| Oct 12 2000 | Motion filed Petnr's renewed motion to perpetuate testimony. |
| Oct 12 2000 | Filed: Memo of p&a in support of Renewed Motion to Perpetuate Testimony |
| Oct 12 2000 | Filed: Declaration of Bensinger in support of Motion to Perpetuate Testimony |
| Oct 12 2000 | Opposition filed Petr's Opposition to Resp's third reqt to extend time to file return |
| Oct 12 2000 | Filed: Declaration of Bensinger to Petr's Opposition to REsp's 3rd reqt for time to file return |
| Oct 19 2000 | Opposition filed by resp to motion to perpetuate testimony. |
| Nov 2 2000 | Filed: petnr's reply to opposition to renewed motion to perpetuate testimony. |
| Dec 11 2000 | Application for Extension of Time filed By resp to file return to OSC (4th request) |
| Dec 14 2000 | Extension of Time application Granted To 1/10/2001 to file resp's return to OSC. No further ext. of time will be granted. |
| Jan 10 2001 | Order filed: Petitioner's renewed Motion to Perpetuate Testimony, filed October 12, 2000, is granted. (See Code Civ. Proc., sections 2017, 2035.) |
| Jan 10 2001 | Return to Order to Show Cause filed respondent A.G.- along with exhibits in support. |
| Jan 26 2001 | Application for Extension of Time filed to file traverse to return |
| Feb 5 2001 | Extension of Time application Granted To 4/10/2001 to file petern's traverse to resp's return to the order to show cause. |
| Mar 9 2001 | Habeas funds request filed (confidential) |
| Mar 28 2001 | Order filed re habeas funds request (confidential) |
| Mar 30 2001 | Application for Extension of Time filed to file Traverse to return. |
| Apr 12 2001 | Extension of Time application Granted To 5/10/2001 to file Traverse to Return to OSC. No further extensions of time contemplated. |
| Apr 16 2001 | Motion filed (AA) Motion by respondent for discovery of petitioner's trial counsel's file. |
| Apr 30 2001 | Filed: Petitioner's oppositon to respondent's request for discovery. |
| May 11 2001 | Traverse to return filed (Pursuant to rule 40(n) - 50 Pp.) |
| May 11 2001 | Filed: Declration of atty. Kerry Bensinger in support of traverse; exhibits. |
| Jun 27 2001 | Case consolidated with: The above-entitled case is hereby ordered consolidated with case number S060781, entitled In re Adam Miranda on Habeas Corpus. |
| Jun 27 2001 | Reference hearing ordered THE COURT: Based on the record in these matters and good cause appearing: The Honorable Wayne L. Peterson, Presiding Judge of the San Diego County Superior Court, shall select a Judge of the San Diego County Superior Court to sit as a referee in this proceeding and shall promptly notify this court of the referee selected. After appointment by this court, the referee shall take evidence and make findings of fact on the following question regarding the cases of People v. Adam Miranda (Los Angeles County Super. Ct. No. A362694); and People v. Adam Miranda (Los Angeles County Super. Ct. No. A372157): Did defense counsel in either case, prior to entry of judgment, actually receive the alleged Montez letter? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and the findings of fact made. Any requests for discovery in these matters, including respondent's motion for disclosure of trial counsel's files, should be addressed to the referee. |
| Jul 18 2001 | Referee appointed THE COURT: Based on the record in these matters and good cause appearing: The Honorable Roger W. Krauel, Judge of the San Diego County Superior Court, is appointed to sit as a referee in this proceeding. He shall take evidence and make findings of fact on the following question regarding the cases of People v. Adam Miranda (Los Angeles County Super. Ct. No. 362694) and People v. Adam Miranda (Los Angeles County Super. Ct. No. 372157): Did defense counsel in either case, prior to entry of judgment, receive the alleged Montez letter? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and the findings of fact made. Any requests for discovery in these matters, including respondent's motion for disclosure of trial counsel's files, should be addressed to the referee. |
| Jun 4 2002 | Referee's report filed |
| Jun 4 2002 | Letter sent to: counsel inviting parties to serve and file exceptions to the report of the referee and simultaneous briefs on the merits on or before 7-5-2002. Responses, if any, should be served and filed 30 days thereafter. |
| Jun 13 2002 | Letter sent to: referee requesting transmission of evidentiary hearing record. |
| Jun 26 2002 | Filed: record from evidentiary hearing. (includes 6 vols. of R.T., 444 pp., and exhibits) |
| Jul 1 2002 | Request for extension of time filed to file respondent's brief on the merits and exceptions to the referee's report. |
| Jul 3 2002 | Extension of time granted to 8-5-2002 to file respondent's brief on the merits and exceptions to the referee's report. Extension granted based upon Deputy AG Glassman's representation that he anticipates filing the brief by 8-4-2002. Upon the court's own motion, the time for petnr to file his brief is extended to and including 8-5-2002. |
| Jul 15 2002 | Filed: two additional vols. of evidentiary hearing R.T. (vols. 3 and 5). |
| Aug 5 2002 | Exceptions/briefing filed re referee's report Petitioner's adoption of referee's report and brief on the merits. (61 pp.) |
| Aug 5 2002 | Exceptions/briefing filed re referee's report Respondent's exceptions to the referee's report and brief on the merits. (44 pp.) |
| Aug 14 2002 | Received: Amended proof of service to Respondent's Exceptions to Referee's Report and Brief. |
| Sep 4 2002 | Filed: letter from respondent, dated 9-4-2002. (Respondent is not submitting a reply to petitioner's brief re: the referee's report.) |
| Sep 5 2002 | Response brief re referee's report (awaiting more) Petitioner's response to respondent's exceptions to the referee's report & response to respondent's brief on the merits. (39 pp.) |
| Sep 5 2002 | Filed: Declaration of Kerry Bensinger in support of Petitioner's response to respondent's brief on the merits. (3 pp. - not including exhibits) |
| Sep 27 2002 | Motion to strike filing (in AA case) Motion by respondent to strike declarations filed in support of petitioner's response to respondent's brief on the merits. |
| Oct 15 2002 | Opposition filed petitioner's opposition to motion to strike |
| Oct 15 2002 | Filed: petitioner's declaration to opposition to motion to strike |
| Nov 25 2002 | Filed: Respondent's reply to opposition to motion to strike declarations filed in support of petitioner's response to respondent's brief on the merits. |
| Apr 7 2003 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the May calendar, to be held in San Francisco the week of May 27, 2003. |
| Jun 25 2003 | Reference hearing ordered (Note: second reference) THE COURT: Based on the record in these matters and good cause appearing: The Honorable Roger W. Krauel, Judge of the San Diego County Superior Court, shall take evidence and make findings of fact on the following additional questions regarding the cases of People v. Adam Miranda (Los Angeles County Superior Court No. 362694) and People v. Adam Miranda (Los Angeles County Superior Court No. 372157): 1. (a) Did Larry Montez write and/or sign the document dated October 23, 1980? (b) If the answer to question (1)(a) is yes, under what circumstances was it written and signed? Would Montez have been available as a witness to the defense? What would he have said? Is the information contained in the document or about which Montez would have testified credible? Could and would the defense have effectively cross-examined Saucedo regarding the information the document contains? (c) If the answer to question (1)(a) is no, the referee need make no further findings concerning the document unless petitioner contends it is material even if not written or signed by Montez. If petitioner does so contend, the referee shall take evidence and make findings on the following questions: Who wrote the document? Under what circumstances was it written? Is the information contained in the document credible? Would such information have led to useful defense evidence and, if so, what? Could and would the defense have effectively cross-examined Saucedo regarding the information the document contains? The referee shall determine any facts relevant to petitioner's factual theory as to why the document is material despite the circumstance that Montez did not write or sign it, including the credibility of any defense evidence the document might have generated. 2. What did Saucedo tell Jimmie Barnes, Marvin Sanchez and Steven McDonald about his role in the Hosey killing? Did Saucedo's statements to Barnes, Sanchez and McDonald differ from his testimony in petitioner's trial and, if so, how did they differ? Would disclosure to the defense of information provided to the prosecution by Barnes, Sanchez and McDonald, and the prosecution's arrangements with those individuals, have led to useful defense evidence and, if so, what? Could and would the defense have effectively cross-examined Saucedo regarding the information provided by Barnes, Sanchez and McDonald? 3. If the undisclosed evidence (the letter and the prosecution's arrangements with Barnes, Sanchez and McDonald) had been disclosed to petitioner, would petitioner's trial counsel in the Hosey murder case have advised him to plead guilty? Would petitioner have entered a guilty plea in that case? It is further ordered that the referee prepare and submit to this court a report of the proceedings conducted pursuant to this appointment, of the evidence adduced, and the findings of fact made. Any requests for discovery in these matters should be addressed to the referee. |
| Aug 6 2003 | Habeas funds request filed (confidential) |
| Aug 6 2003 | Filed: Petitioner's Notice of in camera and under seal filing for approval of funds to pay for an investigator, experts, court reporter fees and costs, and trial counsel fees. |
| Sep 17 2003 | Order filed re habeas funds request (confidential) |
| Aug 20 2004 | Referee's report filed (note: second report) |
| Aug 20 2004 | Letter sent to: counsel advising that referee's report filed this date, and inviting parties to serve and file exceptions to the report of the referee and simultaneous briefs on the merits on or before 9-20-2004. Any responses due 30 days thereafter. |
| Sep 8 2004 | Request for extension of time filed by petitioner to file brief on the merits and adoption of referee's report. (1st request) |
| Sep 9 2004 | Request for extension of time filed by respondent to file exceptions to referee's report and brief on the merits. (1st request) |
| Sep 14 2004 | Extension of time granted to 10/20/2004 to file petitioner's exceptions to the report of the referee and brief on the merits. |
| Sep 15 2004 | Extension of time granted to 10-20-2004 to file respondent's exceptions to the report of the referee and brief on the merits. |
| Sep 15 2004 | Filed: record from second evidentiary hearing (includes 6 vols. of R.T., 320 pp. and 4 binders of "joint exhibits") |
| Oct 1 2004 | Exceptions/briefing filed re referee's report respondent's exceptions to the referee's report and brief on the merits. (67pp - excluding attahced exhibit) |
| Oct 20 2004 | Filed: petitioner's brief on the merits. (104 pp.) |
| Oct 20 2004 | Exceptions/briefing filed re referee's report petitioner's adoption of referee's report. (58 pp.) |
| Oct 25 2004 | Filed: supplemental declaration of service of petitioner's adoption of referee's report. |
| Oct 25 2004 | Filed: supplemental declaration of service of petitioner's brief on the merits. |
| Nov 2 2004 | Response brief re referee's report (awaiting more) respondent's response to petitioner's adoption of referee's report and brief on the merits. (22 pp.) |
| Nov 12 2004 | Request for extension of time filed to file petitioner's response to respondent's exceptions to the referee's report and brief on the merits. (1st request) |
| Nov 17 2004 | Extension of time granted to 12/20/2004 to file petitioner's response to respondent's exceptions to the referee's report and brief on the merits. After that date, no further extension will be granted. |
| Dec 20 2004 | Response brief re referee's report (fully briefed) Petitioner's response to respondent's exceptions to the referees's report and response to respondent's brief on the merits. (63 pp.) |
| Dec 5 2007 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the February 2008 calendar, to be held the week of February 4, 2008, in Sacramento. |
| Jan 3 2008 | Case ordered on calendar to be argued on Wednesday, February 6, 2008, at 9:00 a.m., in Sacramento |
| Jan 15 2008 | Filed letter from: Letter from counsel for petitioner amending application to divide oral argument time between co-counsel to 20 minutes for Kerry Bensinger and 10 minutes for George Hedges. |
| Jan 15 2008 | Application filed Application to divide oral argument time filed by counsel for petitioner, requesting to divide time between co-counsel. |
| Jan 15 2008 | Received: appearance sheet from Deputy Attorney General J. Michael Lehmann, indicating 30 minutes for oral argument for respondent. |
| Jan 16 2008 | Order filed The request of counsel for petitioner in the above-referenced cause to allow two counsel to argue on behalf of petitioner at oral argument is hereby granted. The request of petitioner to allocate to Kerry Bensinger 20 minutes and cocounsel George Hedges 10 minutes of petitioner's 30-minute allotted time for oral argument is granted. |
| Jan 25 2008 | Received: Petitioner's additional authorities for oral argument. |
| Jan 29 2008 | Received: Respondent's additional authorities for oral argument. |
| Jan 29 2008 | Motion filed (AA) by appellant to Strike Respondent's Letter Brief Served on January 25, 2008. |
| Feb 6 2008 | Cause argued and submitted |
| Apr 16 2008 | Motion denied Respondent's "Motion to Strike Declarations Filed in Support of Petitioner's Response to Respondent's Brief on the Merits," filed September 27, 2002, is denied as moot. Respondent's request, contained in a letter to this court received on January 29, 2008, and entitled "Additional Authorities that May Be Cited at Oral Argument on February 6, 2008," that this court take judicial notice of facts assertedly contained in nine published opinions listed in that letter, is denied. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46.) Petitioner's "Motion to Strike Respondent's Letter Brief Served on January 25, 2008," filed January 29, 2008, is denied as moot. George, C.J., was absent did not participate. |
| May 2 2008 | Notice of forthcoming opinion posted |
| May 5 2008 | Opinion filed: H.C. granted, penalty reversed In S058528, habeas corpus relief is granted. The judgment of the Los Angeles County Superior Court in People v. Miranda, 1982, No. 362694, is vacated insofar as it imposes a sentence of death. In S060781, habeas corpus relief is granted. The judgment of the Los Angeles County Superior Court in People v. Miranda, 1983, No. 372157, is vacated. The superior court is to permit petitioner to withdraw his guilty plea. Upon finality of this opinion, the Clerk of the Supreme Court is to remit a certified copy of this opinion to the superior court for filing, and respondent is to serve another copy thereof on the prosecuting attorney in conformity with Penal Code section 1382, subdivision (b). (See In re Sixto (1989) 48 Cal.3d 1247, 1265-1266; In re Hall (1981) 30 Cal.3d 408, 435, fn. 9.) opinion by Werdegar, J. -----joined by George, C.J., Kennard, Baxter, Chin, Moreno and Corrigan, JJ. |
| May 8 2008 | Filed: letter from respondent, dated May 6, 2008, informing the court of "an apparent typographical error" in the opinion on page 49. |
| Jun 4 2008 | Received: Copy of letter dated June 4, 2008, from respondent, J. Michael Lehmann, Deputy Attorney General to Patrick Dixon, Deputy District Attorney of Los Angeles County, with service copy of the court's opinion. |
| Jun 5 2008 | Letter sent to counsel: opinion now final |
| Briefs | |
| Jan 10 2001 | Return to Order to Show Cause filed |
| May 11 2001 | Traverse to return filed |
| Dec 20 2004 | Response brief re referee's report (fully briefed) |
