Opinion
ORDER TO SHOW CAUSE
JON S. TIGAR, District Judge.
INTRODUCTION
Petitioner has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a judgment of conviction from Contra Costa County Superior Court. On January 26, 2015, the Court entered an order noting that the petition was a "mixed" petition, i.e., one that included both exhausted and unexhausted claims. The Court therefore directed petitioner to choose one of the following three options: (1) dismiss the unexhausted claim and go forward in this action with only the exhausted claims; (2) dismiss this action and return to state court to exhaust all claims before filing a new federal petition presenting all of his claims; or (3) move to stay these proceedings while he exhausts his unexhausted claims in the California Supreme Court. Petitioner has filed a notice of election and has opted to drop his unexhausted claims and proceed only with the exhausted claims.
BACKGROUND
In 2011, petitioner was convicted by a jury of first degree robbery, first degree burglary, false imprisonment, and criminal threats. He was sentenced to seven years in state prison. His conviction was affirmed by the California Court of Appeal on December 30, 2013, and his petition for review was denied by the California Supreme Court on March 12, 2014. Petitioner reports that he did not file any state habeas petitions before filing this action. The instant action was filed on September 29, 2014.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A district court considering an application for a writ of habeas corpus shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
B. Claims
As grounds for federal habeas relief, petitioner claims that: (1) the trial court erroneously denied his motion to represent himself, brought pursuant to Faretta v. California, 422 U.S. 896 (1975); (2) the prosecution failed to produce discovery showing that one of the victims had identified petitioner at the crime scene, prior to the in-field show-up; (3) the trial court erroneously excluded evidence that one of the victims had been granted immunity in exchange for his testimony; (4) the trial court erroneously allowed a late amendment to the information; and (5) the late amendment to the information rendered trial counsel ineffective during plea negotiations.
Liberally construed, the claims appears cognizable under Section 2254 and merit an answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se petitions for writs of habeas corpus liberally).
CONCLUSION
For the foregoing reasons, and for good cause shown,
1. The Clerk shall mail a copy of this order and the petition with all attachments to the respondent and the respondent's attorney, the Attorney General of the State of California. The Clerk shall also serve a copy of this order on petitioner.
2. Respondent shall file with the Court and serve on petitioner, within ninety-one (91) days of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on the claims found cognizable herein. Respondent shall file with the answer and serve on petitioner a copy of all portions of the state trial record that have been transcribed previously and that are relevant to a determination of the issues presented by the petition.
If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on respondent within thirty-five (35) days of the date the answer is filed.
3. Respondent may file, within ninety-one (91) days, a motion to dismiss on procedural grounds in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the Court and serve on respondent an opposition or statement of non-opposition within twenty-eight (28) days of the date the motion is filed, and respondent shall file with the Court and serve on petitioner a reply within fourteen (14) days of the date any opposition is filed.
4. Petitioner is reminded that all communications with the Court must be served on respondent by mailing a true copy of the document to respondent's counsel. Petitioner must keep the Court informed of any change of address and must comply with the Court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
5. Upon a showing of good cause, requests for a reasonable extension of time will be granted provided they are filed on or before the deadline they seek to extend.
IT IS SO ORDERED.
I. INFORMATION ABOUT YOUR CONVICTION AND SENTENCE
A. What sentence are you challenging in this petition?
If yes, provide name and address of institution:
B. For what crime were you given this sentence?
Note: If your petition challenges a sentence for more than one crime, list each crime separately using Penal Code numbers, if known. If your are challenging more than one sentence, you should file a different petition for each sentence.
C. Did you have any of the following proceedings?
D. How did you plead? ______________ Guilty [] Not Guilty [] Nolo Contendere []
E. If you went to trial, what kind of trial did you have?
F. Did you testify at your trial? _________________________ YES [] NO []
G. Did you have an attorney at the following proceedings:
H. Did you appeal your conviction? _______________________ YES [] NO []
I. Other than appeals, have you previously filed any petitions, applications or motions with respect to this conviction in any court, state or federal? _________ YES [] NO []
Result: Denied without prejudice Date of result: 12-6-11
3. Name of court: Court of Appeal, 1st Appellate District, Division 2 Type of proceeding: Petition for Writ of Prohibition Grounds raised (be brief but specific):
4. Name of court: N/A ______________________________________________________ Type of proceeding: ________________________________________________________ Grounds raised (be brief but specific);
J. Is any petition, appeal or other post-conviction proceeding now pending in any court? ______________________________________________________________ YES [] NO [] Name and location of court: N/A ___________________________________________ ___________________________________________________________________________
II. GROUNDS FOR RELIEF
State briefly every reason that you believe you are being confined unlawfully. Give facts to support each claim. For example, what legal right or privilege were you denied? What happened? Who made the error? Avoid legal arguments with numerous case citations. Attach extra paper if you need more space. Answer the same questions for each claim.
Claim One: _________________________________________________________________ *** Please see attachment #1 for Claims
Supporting facts: _________________________________________________________________
Claim Two: _________________________________________________________________
Supporting facts: _________________________________________________________________
Claim Three: _________________________________________________________________
Supporting facts: _________________________________________________________________
If any of these grounds was not previously presented to any other court, state briefly which is were not presented and why: Judicial Prejudice - My appointed counsel refused to present the issue for fear of offending the court.
____________________________________________________________________________________ List, by name and citation only, any cases that you think are close factually to yours so that they example of the error you believe occurred in your case. Do not discuss the holding or reasoning of these cases: *** Please ease see attachment #2 for case citations ________________________________________________________________________________
Do have an attorney for this petition? _________________ YES [] NO [] If you do, give the name and address of your attorney: N/A ____________________ __________________________________________________________________________________
WHEREFORE, petitioner prays that the Court grant petitioner relief to which s/he may be entitled in this proceeding. I verify under penalty of perjury that the foregoing is true and correct. Executed on:
CONSENT OR DECLINATION TO MAGISTRATE JUDGE JURISDICTION
Instructions: Please indicate below by checking one of the two boxes whether you choose to decline to consent to magistrate judge Jurisdiction in this matter. Sign this form below your selection.
[] Consent to Magistrate Judge Jurisdiction
In accordance with the provisions of 28 USC § 636(c), I voluntarily consent to have a United States magistrate judge conduct all further proceedings in this case, including trial and entry of final judgment.
Decline Magistrate Judge Jurisdiction
In accordance with the provisions of 28 USC § 636(c), I decline to have a United States magistrate judge conduct all further proceedings in this case, including trial and entry of final judgment.
ATTACHMENT 1: CLAIMS
Claim 1:
The Court erroneously denied my 6th amendment right to self-representation as established in Faretta V. California, Supra, 422 U.S. 806.
Supporting Facts:
The Court denied my request to proceed in Pro Per, on the grounds my request was untimely and made for the purpose of improper delay. The Court did so without conducting any inquiry into the record or facts to substantiate its claim.
1) The Court failed to conduct an inquiry of the record and failed to identify anything of record or of factual basis for its finding that I misused "the motion to unjustifiably delay the trial and obstruct the orderly administration of justice." On the contrary, my request was made directly following the Court's denial of a Marsden Motion which the Court found to be credible. A proper inquiry of the record would have shown no proof that I intended any deliberate obstruction or unjustifiable delay of trial.
2) The Court also failed to conduct an adequate inquiry into the reasons for the timing of my request and committed a structural error by ruling that my Faretta request was untimely without the information necessary to make such a decision. It is the Court's responsibility to inquire into all factors that affect such a basic constitutional right. My request was made at the earliest possible opportunity and directly following a course of events that compelled me to make such a request.
3) The Court stated that because I could not be prepared to proceed with trial, in six days, without a continuance, my implied request for the continuance would cause an obstruction of justice; however, my signed defense counsel also stated, to the same Court, his unpreparedness to proceed, implied a request for a continuance in the immediately preceding Marsden Motion hearing and directly requested a trial continuance during the very same hearing proceedings. This Court has already ruled on this issue in People v. Windham, Supra, 19 Cal. 3d; 121, 128 fn.5. Given the nature of the Marsden Motion and the Pro Per request, the Court could not have reasonably expected me to be prepared for trial without my attorney providing me with any discovery or even discussion of or preparation for trial of any sort.
The Court's decision deprived me of my constitutional right to seek out whatever representation I felt could best and most effectively assist me through all steps of the trial process; though, I was the sole individual carrying all liability for failure. I was forced to proceed to trial with an assigned attorney who refused to produce mitigating evidence and discovery, at my direct direction, and to adequately conduct plea bargain negotiations, thus causing me harm in the form of an unduly long period of incarceration and additional convictions of strike-able offenses. I may or may not have mitigated this harm if I were granted my right to proceed in Pro Per; however, my speculated effectiveness, or lack thereof, does not negate my basic constitutional right to self-representation. (People v. Butler)
Claim 2:
I was errroneously denied my 6th amendment right to effective assistance of counsel during plea negotiations.
Supporting Facts:
The record clearly shows: the Court, the Prosecutor and the Public Defender's office repeatedly denied this constitutional right on multiple occasions and at various phases of the pre-trial and trial proceedings. Although this Court had yet to rule on Lafler v. Cooper and Missouri v. Frye at the time of my trial, this Court had ruled prior to the final review of my case by the Court of Appeal of the State of California, First Appellate District, Division Four, where the Appellate Court failed to remedy the error after review was formally requested, as per my right to have the ruling reviewed retroactively. as well as on direct review. I repeatedly expressed my confusion, concern and objection, on record and otherwise, to decision being made in regard to plea negotiations to: my assigned counsel, his immediate supervisor, the prosecutor, the Honorable Judge Maier and the Honorable Judge Flinn. Additionally, my defense attorney and the prosecutor both acknowledged, before the Court, the fact that my attorney had failed to advise me properly.
It is my understanding the prosecutor had made a formal offer showing the State's willingness to engage in and approve a fair plea bargain. Multiple other defendants, arrested for this very same crime but charged separately from me, were given plea bargain deals for less than 3 years each and have since completed their time and have long been released from prison. Because 95% of the State's convictions are via plea bargain, I feel one can make a safe assumption that the Court would have accepted a reasonable, offer; however, regardless of my assumption, I feel the Court was never given the opportunity to make such a decision.
Substantial harm was caused me as my attorney advised me not to accept an official offer and the difference in the prosecutor's initial offer of 4 years' incarceration at 50% time and one strike for burglary as compared to the sentence I received after trial of 7 years' incarceration at 85% with 2 strikes applied and 4 other strikes waived is considerable at three times the actual incarcerations time (6 years vs 2 years) and a record of multiple strike-able, felony offenses. In light of this Court's then new ruling, I requested in writing and on many occasions that my state appointed appellate attorney present this issue to the Appellate Court as a separate issue. He refused to do so and presented it in conjunction with the Amended Information issue against my wishes.
I believe this issue warrants a thorough review, in its entirety, by this Court because of the timing of this Court's related decisions, the way it was presented to the Appellate Court and because of the complexity of the matter as it spanned various phases of the process and is therefore not comprehensively recorded in the direct trial record.
Summary of the Plea Bargain Process:
1) My attorney advised me not to accept the initial 4-year offer from the District Attorney's office because the D.A. had expressed a willingness to offer 2 years' incarceration at 50% time with one strike for burglary on the advice of the investigating officer who informed the D.A. that his investigation had proven my involvement in this incident was limited. I immediately told my attorney that I would accept the 4-year deal, asked him to continue to negotiate and told him not to lose the deal no matter what happened.
2) At our next meeting, my attorney informed me things were going well and that the D.A. was going to speak with the investigating officer one more time to confirm his findings and begin the paperwork to present the 2-year deal. I told him to counter offer the D.A. with a 3-year sentence for "accessory after the fact" if the 2-year deal was too lenient. I had refused to share identity information with the authorities, for fear of violence against my family, as documented by the investigating officer and I knew it was a crime that held a punishment of incarceration. I was willing to accept it. He asked if I would waive county time served in order to make the 3-year deal better for the D.A.; I agreed to do so if it was required and informed my attorney I would sign that deal immediately.
3) My attorney then refused to investigate, to secure mitigating evidence or request a bail hearing because he was confident of his ability to secure the 2-year deal and did not see the need. I felt it was necessary for a successful negotiation and for trial preparation. I repeatedly expressed that to him.
4) I complained to my attorney's supervisor and expressed my willingness to accept the offer made, or any fair offer; however, I felt I deserved the right to be advised of all details in order to make an informed decision.
5) Becase of my attorney's lack of cooperation, I asked to speak with the prosecutor for a better understanding of the process and to request discovery directly.
6) In September, my attorney informed me he had secured some important mitigating discovery, we would be returning to a new preliminary hearing, several of the charges should be dropped and that we should get an even better offer. He continued to refuse to prepare for trial stating confidence in his ability to negotiate the plea bargain.
7) Days prior to trial, my defense attorney visited and informed me all deals had been "pulled from the table" and I had a hearing in 14 hours where the D.A. may or may not present "some sort" of offer. The following morning, in Court, I was handed a clipboard and told to sign. The paperwork was missing pages and my attorney was not available. I had been handed only pages requiring signature. I was told by the Sheriff to wait until I was called at which time my attorney appeared form a side.' room and asked if I signed or not. I told him I did not understand what he was asking me to sign, asked for the missing pages and requested to address the Court. He informed me I was not allowed to address the Court and had the Sheriff remove me. The trial date was set and I was returned to my cell.
8) I was unable to reach my attorney for questions until I was escorted to a readiness hearing on Nov. 16th 2011, six days prior to trial. My attorney informed me there that he had requested some additional discovery information and was seeking a continuance as he had yet to prepare for trial and hoping the discovery would help re-open plea bargain negotiations. I immediately informed him of my newly decided intention to verbally submit a motion for a Marsden Hearing. He had the Sheriff remove me from the Court to a holding cell while he conferred with the Judge. We resumed about an hour later and, at the appropriate time, I expressed my frustration with my counsel's inadequate preparation which had interfered with a meaningful opportunity to resolve the case with a plea bargain, amongst other issues. The Court found my issues "credible" but refused my request for a substitution of counsel at which time I made a Faretta request to proceed Pro Per.
The record shows my Court appointed attorney had stated to the Court, on multiple occasions, that he had not advised me properly during plea negotiations, he did not, or could not, provide me with the information necessary for me to make an informed decision and that he had failed, or was unable to prepare property and/or in a timely manner because of his reliance on plea bargain negotiations.
Additionally, the trial Court expressly recognized that I may have turned down offers to resolve the case that I would not have turned down had I been presented the facts the way they were presented at trial and that I may have suffered prejudice as a result.
Claim 3;
The prosecution committed several discovery violations and the trial Court erred by not curing the transgressions; thus, violating my constitutional right to a fair trial and due process of the law.
Supporting Facts:
The record shows the District Attorney's office concealed discovery evidence that the victims were under investigation by the Federal Agency, HIDTA. This information corroborated defense accounts and mitigated my culpability. Federal Agents disclosed the information to Sergeant Stratamere at the Hercules P.D. and the information was shared, early on, between the local police and the prosecution. The prosecution repeatedly represented to the Court she did not have the information and it was not the District Attorney's responsibility to disclose such information. The Court concurred with the prosecutor's understanding of disclosure requirements and denied the defense's right to mention anything related to that information to include the fact officers on the scene reported the victim was guilty of drug possession with possible intent to sell: a fact that corroborated defense testimony that this had not been a burglary-robbery of innocent victims but rather a debt collection of a loan involving the victims. The trial judge went so far as to state that even if the information and defense testimony were true, "it doesn't matter whether it's true."
On a separate occasion, Defense represented in opening statements that, a witness whom the prosecutor said had identified me was mistaken and there was no evidence of the identification as he found in the discovery provided. However, during the trial, prosecution presented the testimony of two police officers that Joseph Sapinoso had identified me prior to the show-up. The same two officers testified at the preliminary hearing and stated that the I.D. was never made. Prosecution stated that during a weekened phone call made to Sargent Tafesse of the Hercules P.D., the night prior to his testimony, he had suddenly remembered that Joseph had I.D.'d me on the scene. Prosecution failed to disclose this change in testimony, catching the defense off guard and unable to properly cross-examine. The record shows that Mr. Joseph Sapinoso failed to identify any suspect in the recorded 911 call made during the incident; he failed to identify me when police presented him before me immediately after the event, as per the officer's testimony at the preliminary hearing; he stated to officers on the scene that he was unable to identify even the race of the assailants; he was unable to identify me at an "in-field" show up conducted on scene while I was handcuffed and standing next to a police car. The two suspects described via police radio and in the dispatcher's records were "a black male and an Asian male with facial hair." Additionally, Joseph Sapinoso failed to identify me in photos presented to him by the Hercules P.D. the following day. In fact, no I.D. me had been made until after 1 was presented before three of the victims, who never identified me, on day one of my preliminary hearing. Despite my objection, the preliminary hearing was held over to a second day. That evening, all four victims, went home where they live together and returned on day two, at which time, Joseph Sapinoso was able to identify me with a full description, including an accurate weight and height. Defense counsel intended to present these contradictory facts to the jury in order to discredit Joseph Sapinoso's testimony.
Due to the presentation of undiscovered evidence to the jury, defense counsel repeatedly objected and moved for a mistrial. The trial judge stated his belief in my guilt, his wish that he could issue a summary judgment against me and denied the mistrial motion as well as a request for jury instructions on the prosecution presenting late discovery to the defense.
The prosecutor in this case, Mrs. Jill Henderson, has a history of discovery violations and was, immediately prior to my trial, under internal investigation for failure, or refusal, to present pertinent information to a Grand Jury in regards to a rape case involving two other prosecutors in the District Attorney's office. This information was disclosed to my defense attorney in an effort to address this issue prior to trial; however, he failed to take action and I suffered the consequences.
Claim 4:
The trial Court committed Constitutional error by excluding evidence that Romeo Sapinoso was granted immunity.
Supporting Facts:
The record shows that during my preliminary hearing, without a request by the witness and at the behest of the prosecutor, immunity was offered to Romeo Sapinoso in exchange for his testimony. Though he was unaware of why he needed immunity, the Court re-iterated his need and granted him use and derivative use immunity. Then the Court, over my objection, granted the prosecutor's motion to exclude any evidence of immunity. The Court's decision is reviewable for abuse of discretion.
Romeo Sapinoso's credibility was at issue as evidence was adduced that Joseph and Romeo communicated at the scene about the identity of the suspects, Romeo had conducted his own investigation and shared his findings with Joseph, Romeo communicated with Joseph between sessions of the preliminary hearing regarding my identity and that, in defiance of a directive from the investigating officer, he communicated with Joseph Sapinoso about a photo line-up that had been tainted by Romeo's actions. The Court expressly recognized the relevance of the communication when defense counsel contended that evidence indicated Romeo was exerting influence over Joseph with respect to the identification issue and that the defense had "good argument" concerning Joseph's I.D. of me. The evidence of the immunity granted, and why it was granted, is germane to Romeo Sapinoso's credibility and confirms claims made by the defense that this was not a home invasion robbery but a debt collection transaction that went horribly wrong. The trial Court's exclusion of evidence cannot be deemed harmless.
Claim 5:
The Court abused its discretion by allowing two late amendments to the information and the error prejudiced my substantial rights of due process of the law.
Supporting Facts:
On November 16th 2011, the prosecution petitioned the Court for an amendment to add a count of robbery to the information citing an unintentional oversight on her behalf. The Court granted the request. On November 30th 2011, after the prosecution rested at trial, the prosecutor again motioned the Court to amend the accusatory pleading a second time to add an additional robbery count. The Court granted the request despite my objection on notice grounds and on the grounds the amendment would cause prejudice to me in the form of increased liability. The prosecution again apologized, said it was not for strategic advantage and that it was a mistake for the case to have proceeded to trial on a "legally defective" information. My attorney again expressed his objection stating that he did not advise me that anything like this could happen before continuing to trial. The Court expressed its frustration and criticized the prosecutor and defense counsel for not raising the issue earlier. The amendment caused me substantial harm in the form of an additional robbery conviction carrying additional prison time and an additional strike.
Claim 6:
Judicial prejudice caused a violation of my constitutional right to a fair trial and due process of the law.
Supporting Facts:
Two distinct statements made by the trial judge, the Honorable Judge Flinn, vividly show his obvious prejudice toward my guilt. His prejudice explains the decisions made throughout the course of the trail, his effort to block my defense at each turn and his granting of the prosecutor's every request. For whatever reason, the Honorable Judge Flinn openly stated that, if it were possible, he would immediately issue a summary judgment against me. He also stated before the Court that, in regards to defense's testimony, it "Doesn't matter whether it's true." This is an obvious denial of my right to a fair trial.
ATTACHMENT 1: CLAIMS
Relative Cases - Claim 1:
Relative Cases - Claim 2:
Relative Cases - Claim 3:
Relative Cases - Claim 4:
Relative Cases - Claim 5:
BY THE COURT:
Petitioner filed a petition for writ of mandate arguing that the trial court erroneously denied his request to proceed in pro per. He does not, however, include any documentation, transcripts of the hearing, or summary of the proceedings indicating the basis for his motion and, more importantly, the reasoning behind the trial court's decision. Therefore, the petition for writ of mandate is denied without prejudice.
BY THE COURT:
Petitioner filed a petition for writ of mandate arguing that the trial court erroneously denied his Marsden motion. He does not, however, include any documentation, transcripts of the hearing, or summary of the proceedings indicating the basis for his motion and, more importantly, the reasoning behind the trial court's decision. Therefore, the petition for writ of mandate is denied without prejudice.
---SEALED RECORD pages 4-15
REPORTER'S TRANSCRIPT OF MARSDEN HEARING
NOVEMBER 16, 2011
THE COURT: We're now in the courtroom and it is locked. Mr. Alvear is here as well as the defendant and courtroom staff. Other than that there is nobody present. So I cleared the courtroom for privacy.
Mr. Turner, I understand you are requesting that the Court remove your current attorney; is that correct?
THE DEFENDANT: Yes, ma'am.
THE COURT: Would you please state specifically for the record what complaints you have regarding your attorney? That is specifically why you wish to have him removed and replaced by another attorney. What things has he done that you feel he should not have done? What things do you feel he should have done that have not been done?
THE DEFENDANT: I made a little list, your Honor, that I am reading from. The first issue that I have is that I don't feel that Mr. Alvear has come adequately prepared. Under Penal Code 987.05, "the Court shall only assign counsel who represents on the record that he or she will be ready to proceed with preliminary hearings - or trials as the case may be - within the time provisions described in the Code."
On several occasions, your Honor, I've been asked to waive time when I didn't think I needed to. I have asked for a speedy trial from the beginning, from day one. I waived once in the courtroom prior to my preliminary hearing against the wishes of myself and the Prosecution. Mr. Alvear and I actually made a deal so that I could get discovery in return for a waiver of time for my initial prelim.
Also, throughout the course of this - I am not sure if it's appropriate to disclose this at this time or not - but I was under the understanding that the District Attorney was working on a particular plea bargain in this; and that by waiving time, my Defense would be able to talk more with the Prosecution and/or develop the plea bargain further.
On October 12th, the day before - October 11th - I was notified that a new District Attorney had taken my case, that she had decided to take the deal off the table. They would no longer be willing to offer a deal; and I had less than 24 hours to decide whether or not I wanted to take a deal and came to court on the 12th, two days prior to my trial date on the 17th, with no investigation done, no motion filed, no preparation. I don't feel that he's been properly prepared.
The same Penal Code, 987.05, states that "when the Court determines that an extension of time for a prelim or trial is made, in making this determination the Court shall not consider the counsel's convenience, the counsel's calendar conflicts or counsel's other business." And I think that's been the case here on several occasions.
And it also states that "in cases where counsel, after making the representation that he or she will be ready for examination or trial, without good cause, the Court may relieve the counsel from the case and may impose sanctions on the counsel, " et cetera, et cetera, et cetera.
So that's my first and primary issue, is that I don't think he is adequately prepared, your Honor. He hasn't even asked me what happened that night. We've never even had that conversation. And I don't understand how he could possibly represent me, not even knowing my side of the story or ever hearing it.
A second issue I have is that I felt - oh, there's an obvious issue. I have asked several times for a bail hearing during my preliminary trial. The largest charge that holds a bail, I believe, of $1 million, was dropped. My bail was not adjusted.
I asked several times that a bail hearing be held; and obviously the California Constitution states that excessive bail may not be required from anyone and that bail is a matter of right. That never took place. I requested; my sister has requested; my daughter has requested; my business partner has called to ask about it. We provided documentation for use by my Defense in the bail hearing in order to get my bail lowered. It's never progressed or gone beyond that point.
Another point that I have is I feel that there's a complete failure to investigate issues that we have - I shouldn't say a complete failure - I don't know; he may have conducted some investigation - but there's been a failure to investigate things that are being discussed and agreed would be investigated.
And I think that discovery has not been fully shared with me, number one. And I don't think discovery has been fully disclosed to us; because my Defense has not gone after it aggressively. People v. Minor, 1980, is a case where an attorney was dismissed because he failed to conduct a proper investigation.
I have attempted to discuss with my attorney and he seems to think that he explained fully why we cannot file certain motions, like a 995 or Pitchess motions, which I have asked for. I've been told by him and his supervisor that those are not pretrial motions and cannot be done pretrial. To the contrary, everything I have read, they can be done at preliminary and immediately after preliminary; but I have been told they cannot be done at all.
Finally, I've been told that I was not allowed to address the Court, and I could not speak to the judge when I asked to; and I believe that's abuse, in my opinion. People v. Kirkpatrick says the defendant has a right to participate in his defense. And so I think there's just been a general inability to communicate. We have attempted several times. We've had good conversations a couple times. But I don't think we can move forward.
I have asked him to do a certain number of things in my defense; he's told me he is unwilling to do them. Things have got heated on a couple of occasions. I understand when my sister called to check on my case, he told her to "shut up." That's my sister; that's not even me; and that's offensive to me. Voices have gone up; lots of cursing has happened. It's ineffective communication and we seem to be at a standstill, an impasse.
And in closing, People v. Smith, 1993, "new Counsel should be appointed if inadequate or if there is irreconcilable conflict, where ineffective representation is likely to result." I don't think we can communicate further. There's things I want done that can't be done. And that's about it.
I wish we could work it out and move forward in the interests of the Court; but I am not willing to go into trial unprepared for any reason. And here I am again looking at trial on Monday morning, no motions filed, no discussions of motions, no discussion of what happened that night; no discussions of my past history, my background, my work in a non-profit community; none of this has happened. And I don't see how that could be considered prepared. I am afraid, and unwilling to go to trial unprepared.
THE COURT: So Mr. Alvear, would you please outline your criminal experience just briefly for the record?
MR. ALVEAR: I've been practicing in this County for 11 years; and I have handled approximately - over 30 felony trials.
THE COURT: All right. Would you please respond specifically to each allegation raised by the defendant?
MR. ALVEAR: Well, I don't want to engage in a "he said, he said, " situation. I am simply going to say that the characterization about my conversation with Mr. Turner's sister, the way it was catagorized by Mr. Turnejr, I don't believe is accurate.
The issue of the motions - what Mr. Turner has been insisting is that I file a motion to suppress the identification that took place during the preliminary hearing, and to file a motion pretrial to suppress the identification. And both myself and Ms. Gin have independently told Mr. Turner that that is not a motion that lies ahead of trial; and it's really an issue bearing on the jury's assessment of the evidence, whether the identification evidence is reliable or not.
And I think I have spent hours speaking with Mr. Turner about what that process entails, what the evidence supporting the identification is, what evidence contradicting or undermining the identification lies at the preliminary hearing and strategically at trial, based on my review of the police reports.
The bail issue was addressed a couple of times after the preliminary hearing; but it was never addressed because I was in conversations with Mr. O'Connell from the calendar department, who had made an offer that I thought was a very reasonable offer. Because of Mr. Turner's lack of record, I was essentially trying to talk to Mr. O'Connell in making the offer a little better for Mr. Turner; but the offer was reasonable, and I discussed that with Mr. Turner.
So our effort at that point was to resolve the case; and also it was a race against time from a strategic standpoint because two other co-responsibles were coming in in the lower court and basically at that time were scheduled to come into Superior Court. And one of the things we wanted to avoid was joinder, and the possible amendment of the Information.
With regard to the 995 motion, I discussed with Mr. Turner that there is enough evidence for purposes of the preliminary hearing; and that really litigating a 995 over the issues that were presented would not be productive.
In terms of what Mr. Turner says happened during the event or leading up to the event, Mr. Turner made two separate statements to police that were very detailed; and in my conversations with Mr. Turner he indicated that one of those statements contained a lot of information that was accurate, whereas the other statement didn't.
The bottom line is that the issue of whether Mr. Turner testifies or not is something that I discussed with him based on the circumstances of the case; and the circumstances of the case here is that Mr. Turner was found wearing surgical gloves in possession of stolen property, a block away from the residence that was burglarized at 4 in the morning.
I reviewed with him the instruction dealing with reasonable and probable consequences; and reviewed with him the receiving stolen property instruction and gave him a copy of both of those documents to try to essentially have Mr. Turner appreciate what these instructions would do in a case of this nature; and in terms of what his prior involvement is with the non-profit sector and so forth, I actually opined that it would be detrimental to put on that evidence, given the facts of this case.
Now the other issue is that - again, focusing on the instruction - is that there is a lot of problems with at least two of the witnesses in this matter; but you still have two other witnesses that experienced this event and that are going to testify. And it doesn't matter - I mean I know there is a lot of problems with at least two of the witnesses; but there is still some evidence that the other two witnesses could present for Mr. Turner that may undermine his case.
I was attempting to have Mr. Turner appreciate how these instructions could easily sway a jury, how this has been litigated to the Supreme Court; how the language in the receiving stolen property instruction that talks about slight corroboration is sufficient and how that appears to undermine the beyond a reasonable doubt standard. I told him that I personally didn't agree with that instruction, the way that it is phrased, but that issue has been resolved by the California Supreme Court and there is nothing I can do about that.
In an effort to have Mr. Turner appreciate all of this I had Ms. Gin, at Mr. Turner's request, visit Mr. Turner and review these issues; because what Mr. Turner wanted was a second opinion from an experienced attorney. So I made Ms. Gin available. And Mr. Turner was still focused on why motions on identification had not been issued.
That is not to say that I don't believe that Mr. Turner is going through a great deal of stress; and part of the reason was that I believe that I was negotiating the case in good faith with Mr. O'Connell, and we were going to continue the trial. There was an expectation that the offer would remain open; and then Ms. Henderson pulled it from under the rug. And I believe that Mr. Turner is feeling the consequences of that.
In fact at the time when we continued the trial, I stated on the record in Department 11 about my dissatisfaction about how I was led to believe that this offer would be left open; because discovery was still trickling in, and I needed to discuss that with Mr. Turner. That was stated on the record. And I understand that Mr. Turner has some degree of apprehension about that.
In a minute we're going to address another motion that deals partly with some of - a collataral that instruction, the way that it is phrased, but that issue has been resolved by the California Supreme Court and there is nothing I can do about that.
In an effort to have Mr. Turner appreciate all of this I had Ms. Gin, at Mr. Turner's request, visit Mr. Turner and review these issues; because what Mr. Turner wanted was a second opinion from an experienced attorney. So I made Ms. Gin available. And Mr. Turner was still focused on why motions on identification had not been issued.
That is not to say that I don't believe that Mr. Turner is going through a great deal of stress; and part of the reason was that I believe that I was negotiating the case in good faith with Mr. O'Connell, and we were going to continue the trial. There was an expectation that the offer would remain open; and then Ms. Henderson pulled it from under the rug. And I believe that Mr. Turner is feeling the consequences of that.
In fact at the time when we continued the trial, I stated on the record in Department 11 about my dissatisfaction about how I was led to believe that this offer would be left open; because discovery was still trickling in, and I needed to discuss that with Mr. Turner. That was stated on the record. And I understand that Mr. Turner has some degree of apprehension about that.
In a minute we're going to address another motion that deals partly with some of - a collataral investigation and how that may affect Mr. Turner's case; but essentially what we've been stating all along is that we just wanted an opportunity for Mr. Turner to have the information against him before he would make a decision that would send him to prison.
So that's the background of this case. I believe that Mr. Turner may be stressed by this situation; but I agree that - I am fairly certain that I can adequately prepare to deal with his case. And notwithstanding the fact that we have butted heads; notwithstanding the fact that he wasn't particularly helpful to Ms. Gin; I still make myself available to Mr. Turner if he wants to talk about the evidence in his case.
But I believe that my role as an advocate and as a counselor is to examine the evidence that is hurtful as well as the evidence that is helpful in a case; and I am not going to ignore bad evidence if there is bad evidence out there.
THE COURT: All right. Based upon your complaints and the statements of your attorney I find as follows: I find Mr. Alvear credible and I find your concerns credible. However, I do find that your attorney is providing adequate representation; and I find that you and your attorney are not so embroiled in an irreconcilable conflict that ineffective representation is likely to result.
I therefore find that you have not met your burden of showing that a failure to replace current counsel would substantially impair your constitutional right to assistance of counsel. Mr. Turner, you are quite an intelligent man; I can tell that from speaking with you today. And I encourage you to continue working with Mr. Alvear. I think you two are well paired.
I will open the courtroom now.
THE DEFENDANT: Your Honor, if that's the case then I would like to go pro per and represent myself, please. I can't work with Mr. Alvear. He can't be prepared in two days.
THE COURT: This is the eve of trial; and I don't necessarily have to grant your Faretta status unless you are prepared to proceed on Monday.
(Whereupon the Marsden hearing was concluded)
I, Janice C. Pelletier, CSR #11687, a Certified Shorthand Reporter in and for the State of California, db hereby certify:
That the foregoing proceeding was taken down by me in shorthand to the best of my ability; that it was thereafter reduced to text under my supervision; that this transcript is a true record of the testimony given by the witnesses, if any, and contains a full, true and correct record of the proceedings which took place at the place and date set forth in the caption thereto as shown by my original stenographic notes.
I further certify that I have no interest in the event of the action.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
NOVEMBER 28, 2011
COURTHOUSE, MARTINEZ, CALIFORNIA
COURTHOUSE, MARTINEZ, CALIFORNIA
1. Name and location of court that imposed sentence (for example; Alameda County Superior Court, Oakland):
2. Court Contra Costa County, Superior Court, Martinez
3. Location Martinez, CA
4. Case number, if known XXXXXXXXX
5. Date and terms of sentence December 30, 2011; 7-years @ 85%
6. Are you now in custody serving this term? ("In custody" means in jail, on parole or probation, etc.) ________________________________________________________YES [X] NO []
Denel Bocational" Institution 23500 Kasson Road, Tracy CA 95376
1st Degree Robbery; 1st Degree Burglury; False Imprisonment Criminal Threats; with Firearm Enhancements ________________________________________________________________
Arraignment: _____________________________________________ YES [] NO []
Preliminary Hearing. _____________________________________________ YES [] NO []
Motion to Suppress: _____________________________________________ YES [] NO []
Any other plea (specify) N/ A
Jury[] Judge alone [] Judge alone on a transcript []
1. Arraignment _____________________________________________ YES [] NO []
2. Preliminary hearing _____________________________________________ YES [] NO []
3. Time of plea ____________________________________________________ YES [] NO []
4. Trial ___________________________________________________________ YES [] NO []
5. Sentencing ______________________________________________________ YES [] NO []
6. Appeal ___________________________________________________________ YES [] NO []
7. Other post-conviction proceeding _________________________________ YES [] NO []
1. If you appealed, to what court(s) did you appeal?
Court of Appeal __________________________________YES [] Year: 2012 NO []
Result: Denied
Supreme Court of California ______________________ YES [] Year: 2013 NO []
Result: Denied request for review
Any other court __________________________________ YES [] Year: ____ NO []
Result: ___________________________________________________________________
2. If you appealed, were the grounds the same as those that you are raising in this petition? _____________________________________________________ YES [] NO []
3. Did the court issue an opinion? ____________________________ YES [] NO []
4. Did you seek permission to file a late appeal under Rule 31(a)? ____ YES [] NO []
If you did, give the name of the court and the result: _________________________ ________________________________________________________________________________
Note: If you previously filed a petition or a writ of habeas corpus in federal court challenging the same conviction you are challenging now and if the petition was denied or dismissed with prejudice, you must first file a motion in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider this petition. You may no not file a second or subsequent federal habeas petition without first obtaining such an order from the Ninth Circuit. 28 USC § 2244(b).
If you sought relief in any proceeding other than an appeal, answer the following questions for each proceeding. Attach extra paper if you need more space.
1. Name of court: Court of Appeal, 1st District, Division Two Type of proceeding: Petition for Writ of Mandate Grounds raised (be brief but specific):
a. Erroneous denial of Marsden Motion
b. ________________________________________________________________________
c. ________________________________________________________________________
d. ________________________________________________________________________
2. Name of court: Court of Appeal, 1st Appeal, 1st District, Division 2 Type of proceeding: Petition for writ of Mandate Grounds raised (be brief but specific):
a. Erroneous denial of request to proceed in Pro Per
b. ________________________________________________________________________
c. ________________________________________________________________________
d. ________________________________________________________________________
Result: Denied without predjudice Date of result: 12/6/11
a. Can not proceed without adequate defense representation
b. ________________________________________________________________________
c. ________________________________________________________________________
d. ________________________________________________________________________
Result: Denied without prejudice Date of result: 12/6/11
a. ________________________________________________________________________
b. ________________________________________________________________________
c. ________________________________________________________________________
d. ________________________________________________________________________
Result: ____________________________________________ Date of result: ______
Note: You must present ALL your claims in your first federal habeas petition. Subsequent petitions may be dismissed without review on the merits. 28 USC § 2244(b); McCleskey v. Zant, 499 U.S. 467, 111 S.Ct: 1454; 113 L.Ed.2d 517 (1991).Date
ORDate
1. Faretta v. California, supra, 422, U.S. 806
2. United States v. Farias, supra, 618 F.3d 1049, 1051 fn 2
3. People v. Windham, supra, 19 Cal.3d at pp 128-129 fn 6
4. Moon v. Superior Court (2005) 134 Cal. App 4th 1521, 1534
5. People v. Burton, supra, 48 Cal.3d at pp 852-854
6. People v. Gamache (2010) 48 Cal.3d at pp 347 -385
7. People v. Miller (2007) 153 Cal. App 4th 1015, 1021
8. People v. Johnson (2010) 53 Cal.4th 519, 526
9. Moon v. Superior Court, supra, 134 Cal App. 4th at p 1528
10. People v. Herrera (1980) 104 Cal App.3d 167, 174
11. Armant v. Marquez (9th Cir 1985) 772 F.2d 552 , 555, cert. den. Sub nom. Bunnell v. Armant (1986) 475 U.S. 1099
12. Avila v. Roe (9th Cir 2002) 298 F.3d 750, 753
13. Fritz v. Spalding (9th Cir 1982) 682 F.2d 782 , 784, 785
14. Williams v. Bartlett (2d. Cir 1994) 44 F.3d 95, 99
15. Chapman v U.S. (5th Cir. 1977) 553 F.2d 886, 895
16. United States v. Dougherty (D.C. Cir. 1972) 473 F.2d 1113, 1124
17. Thomas v. Common Wealth (2000) 260 Va. 553, 559
18. People v. Rudd (1998) 63 Cal App. 4th 620, 626-627
19. Washington v. Recuenco (2006) 548 U.S. 212 , 218 fn.2
20. U.S. v. Gonzalez-Lopez (2006) 548 U.S. 140 , 148-149
21. Neder v. U.S. (1999) 527 U.S. 1, 8
22. Sullivan v. Louisiana (1993) 508 U.S. 275, 279
23. McKaskle v. Wiggins (1984) 465 U.S. 168 , 177-178, fn. 8
24. People v. Valdez (2004) 32 Cal.4th 73, 97
25. People v. Joseph (1983) 34 Cal.3d 936 , 939, 946-949
26. People v. Molina (2000) 82 Cal.App.4th 1329, 1333
27. United States v. Erskine (9th Cir. 2004) 355 F.3d 1161, 1167
1. Lafler v. Cooper (2012) 132 S.Ct. 1376
2. Missouri v. Frye (2012) 132 S.Ct. 1399
3. People v. Sisavath (2004) 118 Cal App. 4th 1396, 1400
4. Griffith v. Kentucky (1987) 479 U.S. 314 , 328
1. People v. Jackson (2005) 129 Cal App. 4th 129, 170
2. Evans v. Superior Court (1974) 11 Cal.3d 617, 623
3. Williams v. Florida (1970) 399 U.S. 78
4. Garcia v. Superior Court (1991) 1 Cal App. 4th 979, 985
5. Wardius v. Oregon (1973) 412 U.S. 470, 474
6. Izagaga v. Superior Court (1991): 54 Cal.3d 356, 378
7. People v. Lawson (2005) 131 Cal App. 4th 1242, 1248-1249
8. People v. Corona (1978) 80 Cal App.3d 684 , 725-726
9. Anderson v. Butler (1sst Cir. 1988) 858 F.2d 16
10. Blake v. Pellegrino (1st Cir. 2003) 329 F.3d 43
1. Chapman v. California (1967) 386 U.S. 18, 24
2. People v. Brady (2010) 50 Cal 4th 547, 558
3. People v. Harvey (1984) 163 Cal App.3d 90, 112
4. United States v. Leonard (D.C. Cir. 1974) 494 F.2d 955, 961
5. People v. Echevarria (1992) 11 Cal App. 4th 444, 450
6. People v. Vines (2011) 51 Cal.4th 830, 881-882
7. People v. Freeman (1994) 8 Cal.4th 450, 488-489
8. People v. Sherow (2011) 196 Cal App. 4th 1296, 1310
9. Davis v. Alaska (1974) 415 U.S. 308, 316
10. Greene v. McElroy (1959) 360 U.S. 474, 496
11. Delaware v. Van Arsdall (1986) 475 U.S. 673
12. United States v. Sampol (D.C. Cir. 1980) 636 F.2d 621 , 660
1. People v. Miralrio (2008) 167 Cal App. 4th 448, 458
2. People v. Birks (1998) 19 Cal.4th 108, 129
3. People v. Roth (1934) 137 Cal App.2d 592, 608
4. People v. Hembree (1956) 143 Cal App.2d 733
PROCEEDINGS
THE COURT: You may proceed.
THE DEFENDANT: All I wanted to say, your Honor, and I know it won't affect how this is going to proceed, but that my story has to do with a large group of drug dealers, a large group of gang members, their interaction with each other and how
THE COURT: You can tell the jury that you believe that, but you can't tell whether what you believe is true or not. Doesn't matter whether it's true.
THE DEFENDANT: I understand, sir. Thank you.
THE COURT: All right. We'll get the attorneys in and then we'll get the jury.
MR. ALVEAR: Your Honor, I'm sorry, I just wanted to, when Ms. Henderson comes in, just state my legal objection to what we just discussed.
THE COURT: Oh, I think it's clear on the record, Mr. Alvear.
MR. ALVEAR: On state and federal due process grounds.
(Off the record.)
I am a citizen of the United States and a resident of the state of California. I am incarcerated jn a California prison: Deuel Vocational Institution (DVI). I am over the age of 18 years, and a party to the within action.
I made timely filing under the "mailbox rule" by making timely use of the prison's internal mailing system. In re Jordan (1992) 4 Cal.4th 116 , 128-130, 13 Cal.Rptr.2d 678, 840 P.2d 878; Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106 , 92 Cal.Rptr.3d 595, 201 P.3d 1047; Fed. Rules App. Proc, rule 4(c)(1), 28 U.S.C.; Houston v. Lack (1988) 487 U.S. 266 , 108 S.Ct. 2370, L.Ed. 245 (prisoner's notice deemed filed upon delivery to prison officials because of peculiar obstacles of pro se defendants.).
On September 6, 2014, I gave the document and envelope with pre-paid first-class postage attached, or with a completed CDCR Form 193 Trust Withdrawal attached to the outside of the envelope, and with the word "Confidential" appearing on the face of the envelope, to a custody staff member. The envelope was inspected by a custody staff member for contraband. I sealed the envelope in the presence of the inspecting staff member. The inspecting staff member printed his name, title, date, and signed the outside of the envelope. The prison authority deposited the envelope in the prison internal mailing system mailbox/mailbag.
See Title 15, California Code of Regs. § 3142; CDCR Operations Manual § 54010.20.2; DVI Operational Procedure No. 9 VI K.
I served the following document to each of the persons named below at the address shown: DOCUMENT:
Petition for a Writ of Habeas Carpus, with attachments PARTIES SERVED:
Warden v. Price, Devel Vocational Institution Ms. Kanala Harris, District Attorney Clark of the Court, Northern District of California.
I declare under penalty of perjury the above statements are true and correct. Executed on 06 Day of September, 2014. in the city of Tracy, San Joaquin County, California. By: ____________________