BENAVIDES FIGUEROAPetitioner’s Amended Petition for Writ of Habeas CorpusCal.Apr 22, 2008 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re ) CaseNo. Sl11336 VICENTE BENAVIDES FIGUEROA 1 ) (Kern County Superior Court On Habeas Corpus ) Case No. 48266) CORRECTED AMENDED PETITION FOR WRIT OF HABEAS CORPUS MICHAEL LAUmNCE (Bar No. 12 1 854) CWSTINA B O W E (Bar No. 195464) MONICA OTHON (Bar No. 241 543) HABEAS CORPUS RESOURCE CENTER 303 Second Street, Suite 400 South San Francisco, California 94 107 Telephone: (4 15) 348-3800 Facsimile: (4 15) 348-3873 Attorneys for Petitioner Vicente Benavides Figueroa TABLE OF CONTENTS Page CORRECTED AMENDED PETITION FOR WRIT OF HABEAS CORPUS ................................................................................ TABLE OF AUTHORITIES i .......................................... I. . PROCEDURAL HISTORY AND BACKGROUND 2 .................................................................................... 11. STATEMENT OF FACTS 8 .................................................................... A. Evidence Presented at Trial 10 ........................................................ B. Evidence Presented in this Petition 14 ............................................................................ 111. BASIS FOR JURISDICTION 18 .............................................. IV. JUDICIAL NOTICE AND INCORPORATION 19 ...................................... V. SCOPE OF CLAIMS AND EVIDENTIARY BASES 19 ................ VI. CLAIMS FOR RELIEF ..................................................................... ; 20 CLAIM 1: THE STATE PRESENTED FALSE AND MISLEADING TESTIMONY ................. THAT PETITIONER CAUSED CONSUELO VERDUGO'S INJURIES 20 CLAIM 2: THE STATE PREJUDICIALLY COERCED THE TESTIMONY OF ........................................................ ESTELLA MEDINA AND CRISTINA MEDINA 47 CLAIM 3: THE STATE PRESENTED FALSE TESTIMONY REGARDING THE FACTS THAT OCCURRED ON NOVEMBER 17, 1991 ........................................... 69 CLAIM 4: THE STATE PRESENTED FALSE AND MISLEADING TESTIMONY THAT PETITIONER CAUSED CONSUELO VERDUGO'S INJURIES THAT ............................................... SHE SUSTAINED PRIOR TO NOVEMBER 17, 1991 79 CLAIM 5: THE STATE PRESENTED FALSE AND MISLEADING TESTIMONY THAT PETITIONER WAS A CHILD MOLESTER, WHEN IT HAD OVERWHELMING EVIDENCE IN ITS POSSESSION DISPROVING ITS OWN ALLEGATIONS WHICH IT FAILED TO DISCLOSE ............................................. 99 CLAIM 6: THE STATE PRESENTED IRRELEVANT EVIDENCE CONCERNING ESTELLA MEDINA IN AN ATTEMPT TO GENERATE JUROR OUTRAGE AT PETITIONER ..................................................................................... 114 CLAIM 7: THE STATE WITHHELD MATERIAL EXCULPATORY EVIDENCE THAT WAS RELEVANT TO THE IMPEACHMENT OF PROSECUTION WITNESSES AND THAT INDICATED THE PROSECUTION HAD MANUFACTURED FALSE TESTIMONY ............................................................... 124 CLAIM 8: THE STATE PREJUDICIALLY FAILED TO DISCLOSE BENEFITS OFFERED TO WITNESSES IN EXCHANGE FOR THEIR ASSISTANCE WITH THE CASE ..................................................................................................................... 145 CLAIM 9: THE STATE'S RELIANCE ON PETITIONER'S ILLEGALLY OBTAINED AND INVOLUNTARY STATEMENTS AND ITS PREJUDICIAL MISCONDUCT IN INTERROGATING PETITIONER VIOLATED PETITIONER'S CONSTITUTIONAL RIGHTS ....................................................... 149 CLAIM 10: THE STATE UNFAIRLY TARGETED PETITIONER AS THE SOLE SUSPECT AND IGNORED EVIDENCE THAT IMPLICATED OTHER SUSPECTS ..................................................................................................................... 156 CLAIM 11: THE PROSECUTOR ENGAGED IN PREJUDICIAL MISCONDUCT DURING TRIAL ............................................................................................................ 165 CLAIM 12: PETITIONER WAS UNCONSTITUTIONALLY DEPRIVED OF THE RIGHT TO COMPETENT INTERPRETER SERVICES DURING HIS CAPITAL TRIAL ....................................................................................................... 176 CLAIM 13: PETITIONER WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND TO A FAIR AND RELIABLE DETERMINATION OF GUILT AND PENALTY BY TRIAL COUNSEL'S PREJUDICIALLY DEFICIENT PERFORMANCE ................................................. 190 CLAIM 14: PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO CONFLICT-FREE REPRESENTATION .................................................................. 273 CLAIM 15: SEVERAL INSTANCES OF UNCONSTITUTIONAL AND PREJUDICIAL JUROR MISCONDUCT OCCURRED DURING TRIAL ............ 279 CLAIM 16: THE COURT'S PRO-PROSECUTION BIAS INFECTED THE TRIAL AND SWAYED THE JURORS TO DISCREDIT THE DEFENSE AND MATERIALLY PREJUDICED THE OUTCOME OF THE TRIAL ...................... 284 CLAIM 17: THE STATE PRESENTED IMPROPER VICTIM IMPACT EVIDENCE .................................................................................................................... 289 CLAIM 18: THE TRIAL COURT UNCONSTITUTIONALLY and PREJUDICIALLY ORDERED PETITIONER TO BE SHACKLED THROUGHOUT THE TRIAL ..................................................................................... 294 CLAIM 19: PETITIONER'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY THE TRIAL COURT'S FAILURE PROPERLY TO INSTRUCT THE JURY OR RECTIFY JUROR CONFUSION REGARDING THE SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE ......................................................... 297 CLAIM 20: PETITlONER IS INELIGIBLE FOR A DEATH SENTENCE AND HIS CONVICTION CANNOT STAND BECAUSE OF HIS MENTAL RETARDATION ............................................................................................................ 305 CLAIM 21: PETITIONER'S DEATH SENTENCE IS UNCONSTITUTIONAL BECAUSE IT WAS SELECTED AND IMPOSED IN A DISCRIMINATORY, ARBITRARY, AND CAPRICIOUS FASHION AND WAS BASED ON IMPERMISSIBLE RACE AND GENDER CONSIDERATIONS ........................... 316 CLAIM 22: THE STATE'S DEATH PENALTY STATUTE FAILS TO NARROW THE CLASS OF OFFENDERS ELIGIBLE FOR THE DEATH PENALTY AND RESULTS IN IMPOSITION OF DEATH IN A CAPRICIOUS AND ARBITRARY MANNER ........................................................................................................................ 323 CLAIM 23: PETITIONER'S CONSTITUTIONAL AND STATUTORY RIGHTS WERE VIOLATED BY THE PROCESS USED TO SELECT AND IMPANEL ..................................................................................................................... THE JURY 349 CLAIM 24: PETITIONER'S CONVICTION AND DEATH SENTENCE ARE UNLAWFUL BECAUSE THEY WERE OBTAINED IN VIOLATION OF THE PROVISIONS OF THE VIENNA CONVENTION ON CONSULAR RELATIONS AND THE CONSULAR CONVENTION BETWEEN THE UNITED MEXICAN STATES AND THE UNITED STATES OF AMERICA ........................................... 355 CLAIM 25: PETITIONER WAS DEPRIVED OF HIS RIGHT TO A JURY DETERMINATION OF FACTS NECESSARY TO SENTENCE HIM TO DEATH ........................................................................................................................... 367 PRAYER FOR RELIEF ................................................................................................ 381 VERIFICATION ............................................................................................................ 383 TABLE OF AUTHORITIES FEDERAL CASES . ................................................ Apprendi v New Jersey (2000) 530 U.S. 466 passim . Atkins v Virginia (2002) 536 U.S. 304 ................................................................ 315 ............................................................ . Boyde v California (1 990) 494 U.S. 370 374 Breard v . Greene (1 998) 528 U.S. 371 ................................................................ 362 . Cage v Louisiana (1 990) 498 U.S. 39 ................................................................. 378 . .......................................... Castenada v Partida (1 977) 430 U.S. 482 349, 352, 353 ............................................................... . Duren v Missouri (1979) 439 U.S. 357 349 . Furman v Georgia (1 974) 408 U.S. 23 8 ............................................................. 327 . ............................................................... Gregg v Georgia (1 976) 428 U.S. 153 347 ............................................................. . Hicks v Oklahoma (1980) 447 U.S. 343 354 . Jones v United States (1 999) 526 U.S. 227 ........................................................ 369 . ............................................................ McCleskey v Kemp (1 987) 48 1 U.S. 279 354 . ............................................................. Payne v Tennessee (1991) 501 U.S. 808 290 . ....................................................................... Peters v Kiff(1972) 407 U.S. 493 354 . ............................................................... Profjtt v Florida (1 976) 428 U.S. 242 347 Ring v . Arizona (2002) 122 S . Ct . 2428 ........................................................ passim . .......................................................... Sullivan v Louisiana (1993) 508 U.S. 275 378 . .............................................................. Walton v Arizona ( 1 990) 497 U.S. 639 371 ...................................................................... In re Winship (1970) 397 U.S. 358 374 ............................................... . Woodson v North Carolina (1976) 428 U.S. 280 354 STATE CASES . ............................................... Conservatorship of Roulet (1 979) 23 Cal 3d 2 19 375 .................................................................... People v . Green (1 980) 27 Cal.3d 1 327 . ............................................................... People v . Adcox (1988) 47 Cal 3d 207 326 . . People v . Alexander (1 985) 163 Cal App 3d 1 1 89 ............................................ 350 . . ............................................... People v Anderson (1987) 43 Cal 3d 1104 328, 332 . People v . Bacigalupo ( 1 993) 6 Cal 4th 457 ................................................ 33 1, 376 . ................................................................... . People v Bell (1989) 49 Cal 3d 502 349 . . .................................................. . People v Birden (1986) 179 Cal App 3d 1020 335 . ............................................................. . People v Burnick (1975) 14 Cal 3d 306 375 ................................................................ . . People v Ceja (1 993) 4 Cal 4th 1 134 334 . .............................................................. People v . Conley (1966) 64 Cal 2d 3 10 330 . . ........................................................... People v Cooper (1991) 53 Cal 3d 1158 335 ............................................................... . . People v Dillon (1983) 34 Cal 3d441 335 . People v . Edwards (1991) 54 Cal 3d 787 ........................................................... 289 ............................................................... . . People v Fields (1983) 35 Cal 3d 329 353 . People v . Fierro (1 991) 1 Cal 4th 173 ................................................................ 290 . ............................................................... People v . Hayes (1 990) 52 Cal 3d 577 332 . ............................................................ . People v Morales (1989) 48 Cal 3d 527 334 .................................................................. . . People v Morris (1988) 46 Cal 3d 1 335 . .................................................. . People v Ramos (1997) 15 Cal 4th 1133 349, 353 . People v . Sanders (1 990) 5 1 Cal 3d 47 1 ............................................................. 350 . . People v . Stress (1988) 205 Cal App 3d 1259 ................. ; ................................. 330 People v . Wolff (1 964) 6 1 Cal . 2d 795 ................................................................. 330 . . ................................................... People v . Pitts (1990) 223 Cal App 3d 606 6 67 People v . Stoll (1989) 49 Cal.3d 1 136 ..................................................... 6 67, 243 United States ex re1 . Madej v . Schomig (N.D. I11 . Sept . 24, 2002) 2002 WL 31 133277 ............................................................................................ 3 6 361 'United States ex re1 . Madej v . Schomig (N.D. I11 . Oct . 22, 2002) 2002 WL 31386480 ............................................................................................ 361, 362 Valdez v . State (Okla . Crim . App . 2002) 46 P.3d 703 ................................. 361, 363 STATUTES 1981 Cal . Stat . 404. $5 2. 7 .................................................................................. 329 1982 Cal . Stat . 950. 5 1 ........................................................................................ 329 ................................................... . . . . Ariz Rev Stat Ann 5 13-703(c) (West 1989) 345 ................................................ . . . . Conn Gen Stat Ann 53a-46a(c) (West 1985) 345 ........ . . Cal . Code Civ Proc 5 5 191, 197. 198.203.204. 209. 21 8.219.222. 228 354 Cal . Const . Art . I., Sec . 14 .................................................................................. 177 Cal . Penal Code 5 187 ................................................................................... passim Cal . Penal Code fj 188 .......................................................................................... 330 .................................................................................. . Cal Penal Code fj 189 3 3 0 333 Cal . Penal Code 5 190.2 ................................................................................ passim Cal . Penal Code 5 190.3(a) ............................................................................ passim ..................................................................................... . Cal Penal Code tj 1 1 18.1 3 , 5 ................................................................................. . . . Ga Stat Ann 5 27-2537(c) 347 Mont . Code Ann . 46-1 8.303(7), (9) (1 995) ...................................................... 332 Stats . 1977. ch . 3 16 .............................................................................................. 327 .............................................................................. Stats . 1993. c . 611. tj 4. 4.5. 6 329 ......................................................................................... Stats . 1995. c . 477. 5 1 331 Stats . 1998. c . 629. 5 2 ......................................................................................... 331 .......................................................................................... . . Stats 1999. c 694. 91 329 U.S. Const . Art . VI, 92 ......................................................................................... 356 United Mexican States and the United States of America of August 12. . ................................................................................................ 1942. 57 Stat 800 355 .............................................. Wash . Rev . Code Ann . 10.95.060(4) (West 1990) 345 MISCELLANEOUS Bowers & Steiner. Death by Default: An Empirical Demonstration of False and Forced Choices in Capital Sentencing (1 999) 77 Tex . L . Rev . 605. 697 ....................................................................................................... 3 0 302 .............................................................................................. CALJIC No . 8.84.1 341 Consular Convention between the United Mexican States and the United States of America of August 12. 1942. 57 Stat . 800 ............................................ 355 "Developments in the Law. Race and Criminal Process " ( 1 988) 10 1 Harv . L . Rev . 1472. 1525-26 ....................................................................................... 317 Eisenberg & Wells. Deadly Confusion: Juror Instructions in Capital Cases (1993) 79 Cornell L . Rev . 1 ...................................................................... 302 Eisenberg et a1 . The Deadly Paradox of Capital Jurors (200 1) 74 So.Ca1. L.Rev. 371 ............................................................................................................ 301 Garvey et a1 . Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases (2000) 85 Cornell L . Rev . 627 ......................................... 301, 303 LaGrand Case (Germany v . United States). 200 1 ICJ 104 (Judgment) ........ passim Luginbuhl & Howe. Discretion in Capital Sentencing Instructions: ................................................. Guided or Misguided? (1 995) 70 Ind . L.J. 1 16 1 302 Schatz & Rivkind. "The California Death Penalty Scheme: Requiem for ............................................................ . . FurmanV(1997) 72 N.Y.U. L Rev 1283 325 Optional Protocol Concerning the Compulsory Settlement of Disputes. Apr . 24. 1963. art . 1. 21 U.S.T. 325 ..................................................................... 360 Weiner et a1 . Comprehensibility of Approved Jury Instructions in Capital ...................................... . Murder Cases (1995) 80 J of Applied Psychology 455 303 'Vienna Convention on Consular Relations. Apr . 24. 1963. 21 U.S.T. 77. ....................................................................................................... 596 U.N.T.S. 355 MICHAEL LAURENCE (Bar No. 12 1854) CRISTINA BORDE (Bar No. 195464) MONICA OTHON (Bar No. 24 1543) HABEAS CORPUS RESOURCE CENTER 303 Second Street, Suite 400 South San Francisco, California 94 107 Telephone: 4 15-348-3800 Facsimile: 41 5-348-3873 Attorneys for Petitioner Vicente Benavides Figueroa IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re ) CaseNo. S111336 VICENTE BENAVIDES FIGUEROA, 1 ) (Kern County Superior ) Court No. 48266) On Habeas Corpus 1 CORRECTED AMENDED PETITION FOR WRIT OF HABEAS CORPUS TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE OF THE STATE OF CALIFORNIA, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA. Petitioner, Vicente Benavides ~ i ~ u e r o a , ' through his counsel, the Habeas Corpus Resource Center ("HCRC"), petitions this Court for a writ of habeas corpus and by this verified petition sets forth the following facts and causes for the issuance of the writ: 1 Petitioner's name is incorrectly recorded in the Superior Court caption as "Vicente Figueroa Benavides." Petitioner's correct name is Vicente Benavides Figueroa, Benavides being his father's surname, and Figueroa his mother's. Petitioner is referred to as Mr. Benavides in this amended petition. I. PROCEDURAL HISTORY AND BACKGROUND A. Petitioner is unlawfully imprisoned under a judgment of convictions and sentence of death at San Quentin State Prison, San Quentin, California, by Robert Ayers Jr., Warden, and James E. Tilton, Secretary, of the California Department of Corrections and Rehabilitation. B. The court entering judgment of the convictions and sentences challenged by this corrected amended petition is the Superior Court of Kern County (Kern County Superior Court Case No. 48266). C. The date of the judgment challenged by this corrected amended petition is June 11, 1993. (1 Clerk's Transcript ("CT") 873-74, 905.) D. On November 20, 1991, a complaint was filed in the North Kern Municipal Court of Kern County. (1 CT at 57.) On November 27, 1991, a change of venue was granted from North Kern Municipal Court to Bakersfield Municipal Court. (CT 94.) On December 2, 199 1, an amended complaint was filed in Bakersfield Municipal Court. (1 CT at 64-67, 94.) On December 12, 1991, a Preliminary Hearing was held before the Honorable Sharon Mettler in Bakersfield Municipal Court. (1 CT at 110.) E. On December 19, 1991, the Kern County District Attorney filed a six-count Information in Superior Court charging petitioner Vicente Benavides Figueroa with the following offenses against Consuelo Verdugo: Count 1, murder (Penal Code 5 187); Count 2, rape (Penal Code 8 261, subd. (2)); Count 3, lewd and lascivious act on a child (Penal Code 5 288, subd. (a)); Count 4, sodomy (Penal Code €j 286, subd. (c)); Count 5, aggravated mayhem (Penal Code 8 205); and Count 6, child endangerment (Penal Code 5 273a, subd. (I)). (1 CT at 253-58.) Count 1 also alleged as special circumstances that the murder was committed while petitioner was engaged in the commission of rape, sodomy, and a lewd and lascivious act on a child within the meaning of former Penal Code section 190.2, subdivisions (a)(l7)(iii), (a)(l7)(iv) and (a)(17)(v). (1 CT at 253-54.) Counts 2, 3 and 4 also alleged that petitioner inflicted great bodily injury on the victim within the meaning of Penal Code section 12022.8. (1 CT at 254-55.) .F. On motion of the district attorney, Count 6 was dismissed on April 17, 1993. (2 CT at 467.) Pursuant to Penal Code section 1 1 18.1, the Court entered a judgment of acquittal as to Count 5 on April 15, 1993. (2 CT at 524.) G. Petitioner was arraigned on December 20, 1991, before the Honorable Stephen P. Gildner, in Department Ten of the Kern County Superior Court. Petitioner entered a plea of not guilty on all counts and denied all allegations. (1 CT at 259-60.) H. The defendant filed a Motion to Set Aside the Information pursuant to Penal Code section 995 on April 29, 1992. (1 CT at 269-73.) The district attorney filed its Opposition to Defendant's Motion on May 13, 1992. (1 CT at 279-96.) The court denied the motion as to all counts on May 15, 1992. (1 CT at 297.) I. On February 23, 1993, the defendant filed a Motion to Change Venue. (2 CT at 342-87.) On March 3, 1993, the district attorney filed its opposition to the motion. (2 CT at 393-405.) On March 15, 1993, the court denied the defendant's venue motion. (2 CT at 453-56.) J. On March 1, 1993, the district attorney filed a Motion In Limine to Admit Photographs of Victim Consuelo Verdugo. (CT 388-92.) The defendant filed his Motion to Limit Photographic Evidence on March 10, 1993. (2 CT at 432-38.) On March 15, 1993, the court ruled that no live photos of the victim are to be shown at guilt phase. (2 CT at 457.) K. The defendant filed a Motion In Limine to Exclude Evidence of Any Uncharged Acts and for an Evidentiary Hearing on March 10, 1993. (2 CT at 409-31) On March 15, 1993, the court granted the defense motion, but the prosecution was permitted to present testimony about what Cristina Medina saw and heard with respect to petitioner's prior conduct with Consuelo. (2 CT at 459.) L. On March 10, 1993, the court denied a defense motion to exclude cameras in the courtroom; but limited the media to one camera and required the stations to pool the footage. (2 CT at 440.) The court granted the district attorney's motion to exclude cameras during the testimony of the victim's ten-year-old sister. (2 CT at 440.) M. On March 15, 1993, the defendant filed a Motion for Attorney Conducted Sequestered Individual Voir Dire and Motion In Limine to Insure a Fair and Impartial Trial. (2 CT at 44 1; 449-50.) The court granted both defense motions on March 15, 1993. (2 CT at 459.) The court also granted the district attorney's motion to ask special questions of the jurors. (2 CT at 457.) N. On March 15, 1993, the defendant filed a Motion In Limine to Prohibit Prosecutorial Discovery of Defense Penalty Phase Evidence Prior to the Start of the Penalty Phase Trial. (2 CT at 443-48.) Granting the motion in part, the court ruled the defense was not required to disclose witness names and identifying information at that time. (2 CT at 458.) 0 . On March 15, 1993, the prosecution's motion in limine to admit defendant's untaped, un-Mirandized statements to Detective Valdez and the taped and Mirandized statements, both of which were custodial interrogations was argued. (2 CT at 458.) The court scheduled a hearing pursuant to Evidence Code section 402 for the presentation of evidence regarding the motion for March 16, 1993. (2 CT at 459.) Detective A1 Valdez of the Delano Police Department testified. Following his testimony, the court found that the defendant's statements were made freely and voluntarily and therefore, would be admissible at trial. (2 CT at 461 .) P. Jury selection began on March 17, 1993, and a jury was impaneled .and sworn on April 1, 1993. The guilt phase of trial began with the district attorney's opening statement the same day. Defense counsel reserved opening statement. (2 CT at 489-90.) Guilt phase evidence was concluded and jury deliberations began on April 19, 1993. (2 CT at 533; 3 CT at 740.) The following day, the jury returned guilty verdicts on four substantive counts and found each special circumstance allegation and each great bodily injury enhancement allegation true. (3 CT at 727-42.) Q. The penalty phase began on the morning of April 22, 1993. (3 CT at 787.) Within hours, the penalty phase was completed, and the jury began deliberations at 11:35 a.m. that same day. (3 CT at 788.) At 4:40 p.m. that afternoon the jury reached a verdict of death. (3 CT at 789.) R. The defendant filed a Motion For New Trial and Motion to Reduce Penalty to Life Imprisonment Without the Possibility of Parole on June 2, 1993. (3 CT at 807-1 8.) The prosecution filed its Opposition on June 8, 1993. (3 CT at 8 19-3 1 .) On June 1 1, 1993, the day for sentencing, the defendant filed Letters In Support Of Defendant to be considered prior to sentencing. (3 CT at 832-67.) The court denied the defense motion for a new trial and declined to modifjr the sentence to life without the possibility of parole. A judgment of death was imposed. (3 CT at 873-74; 905-1 1 .) S. At trial, petitioner was represented by Donnalee Huffman and Jeffrey Harbin. T. Pursuant to Penal Code section 1239(b) petitioner's automatic appeal to this Court followed. 1. On July 1, 1998, this Court appointed the Office of the State Public Defender, to represent Mr. Benavides on his automatic appeal. 2. On March 18, 1999, this Court appointed the Habeas Corpus Resource Center ("HCRC") to represent Mr. Benavides in habeas corpus and executive clemency proceedings. 3. On January 25, 2001, appellate counsel filed Appellant's Opening Brief. Respondent's Brief was filed on September 27, 2001, and on May 16, 2002, Appellant's Reply Brief was filed. On February 17, 2005, this Court affirmed the judgment. 4. On November 12, 2002, petitioner filed a Petition for Writ of Habeas Corpus in this Court. Respondent filed an Informal Response on July 15, 2003, and petitioner filed an Informal Reply on February 20, 2004, and Supplemental Allegations on November 30,2004. 5. In February 2006, the media reported that Kathleen Culhane, a former HCRC investigator who had worked on Mr. Benavides's case, had submitted declarations in another capital case that were alleged not to have been signed by the witnesses. As a result of these accusations, the HCRC began to review the work that Ms. Culhane had been assigned in Mr. Benavides's case to verify its accuracy and reliability. After reviewing a portion of her work, the HCRC determined that all of Ms. Culhane's assigned work needed to be redone and on August 29, 2006, the HCRC requested an extension of time from this Court in which to amend the Petition for Writ of Habeas Corpus with accurate and reliable information. On November 1, 2006, this Court granted petitioner an extension of time to file an amended petition until September 1,2007. 6. On September 4, 2007, petitioner filed a timely Amended Petition for Writ of Habeas Corpus and an application for leave to file under seal certain portions of the supporting exhibits. 7. On October 16, 2007, respondent filed a motion opposing petitioner's request to seal some of the exhibits and petitioner responded to the opposition on November 17, 2007. This Court denied petitioner's application for leave to file the exhibits under seal and ordered the exhibits publicly filed on December 12, 2007. Justice Kennard opined that the application should be granted. 8. On November 8, 2007, respondent filed a request for a more definite statement of the modifications made to the amended state habeas petition. On November 20, 2007, petitioner filed an opposition to the request. On January 23, 2008, this Court granted respondent's request for a more definite statement and ordered petitioner to file a corrected amended petition by April 22, 2008. This Court ordered petitioner to not include references to the Informal Response, Informal Reply or the opinion on direct appeal in the corrected amended petition. This Court further ordered that petitioner seek permission to file a supplemental petition if petitioner wishes to present additional material unrelated to the fraudulent investigation of Kathleen Culhane to supplement existing claims. This Court held that any corrected amended petition or supplemental petition filed by permission of this Court by April 22, 2008, would be deemed presumptively timely filed. 11. STATEMENT OF FACTS Vicente Benavides Figueroa, a forty-two year old Mexican national with no criminal record, was arrested and charged with the death of twenty- one-month-old Consuelo Verdugo in November 199 1. Law enforcement immediately accused Mr. Benavides of raping and sodomizing his girlfriend's daughter while he was alone with her during a fifteen-minute period on the evening of November 17, 199 1. When police questioned him in ~ ~ a n i s h , ~ Mr. Benavides insisted that he was innocent, he had found the child unconscious, and could not explain the cause of her injuries. The officers viewed his answers as evasive and inconsistent. The prosecution at trial used his statements and inability to explain her injuries as proof of his guilt. What the prosecution, the jury, and his own lawyers did not know is that Mr. Benavides was and is functioning at the mental level of a child just over seven years old. Moreover, the officer who questioned Mr. Benavides and elicited the damaging statement was incapable of communicating in Spanish given his own language deficiency. As a result, the officer, who concluded that Mr. Benavides was lying, repeatedly asked him whether the child was "shaved clean" instead of whether he sodomized her. Mr. Benavides fared no better in his attempts to understand the proceedings at trial. Mr. Benavides's interpreter - who interpreted the witnesses' testimony for him and Mr. Benavides's testimony to the court - was an uncertified and unqualified interpreter who had failed the state's certification examination at least three times. His incompetent translation of Mr. Benavides's testimony materially changed his words in a manner that -- - Mr. Benavides was, and is, a monolingual Spanish speaker. 8 allowed the prosecutor to substantially mischaracterize Mr. Benavides's testimony on cross-examination. Further, the incompetent translation of the police detective's interrogation of Mr. Benavides on the day he was arrested, which was given to the jury, presented a completely distorted and materially false rendition of Mr. Benavides's statements. The prosecution, on the other hand, had no difficulty understanding how to obtain a conviction and death sentence in the case. Virtually every medical observation and conclusion that the prosecution presented - from the cause of death to the "evidence" of rape and sodomy - was manufactured and false. The indisputable evidence presented in this petition - provided by world-renown medical authorities, the medical personnel who observed Consuleo Verdugo immediately upon her arrival at the hospital, and the doctors who testified on behalf of the prosecution - disproves each and every element of the prosecution's case. The jury did not learn or know that the pathologist's cause of death - anal penetration that severed her pancreas - is medically impossible. The jury did not learn or know that the numerous medical personnel who administered to Consuelo's care immediately upon her arrival at the hospital emphatically deny that she had such injuries. Indeed, the jury did not hear that the injuries used to support the charges resulted not from criminal conduct, but rather from the invasive and sustained medical efforts to address Consuelo's increasingly deteriorating medical condition. One reason why the jury was not presented with an accurate picture of her medical condition and injuries is that the prosecution did its best to conceal the truth from petitioner, the court, and the jury. But another reason is that Mr. Benavides's trial attorneys failed to undertake any investigation of Consuelo's medical treatment. Indeed, although Consuelo was hospitalized for eight days prior to her death, trial counsel did not interview any of the dozens of nurses and doctors who observed her medical condition and treated her injuries. The two defense experts she contacted on the eve of and during trial were provided with inadequate information about Consuelo's medical history and injuries, insufficient time to review and analyze the complicated medical issues presented by the case, and little or no guidance as to even the questions to which counsel sought answers. The quality of the penalty phase development and presentation was similarly deficient. Although defense counsel informed the court that he was prepared to present the testimony of seventy-seven friends, family, and co-workers on behalf of Mr. Benavides, only four witnesses testified in the guilt phase and only two witnesses testified in the penalty phase. Their testimony about Mr. Benavides's character and background was only minutes long. Trial counsel conducted no investigation in Mexico, notwithstanding the repeated efforts of Mr. Benavides's friends and family who tried to contact counsel to offer their support and assistance. The courthouse hallways were filled with family, friends, and co-workers willing to testiQ about Mr. Benavides's mental impairments, impoverished and traumatic background, and admirable character. Included among these individuals were people who trusted their children's lives to Mr. Benavides, and his mother, who traveled from Mexico to help her son a year before the trial, but were never given the opportunity to testify. A. Evidence Presented at Trial Estella Medina worked as a nurse's aide at Delano Regional Medical Center ("DRMC"). On November 17, 1991, she left her apartment at approximately 6:40 p.m. to report to work at DRMC by 7:00 p.m. She left her children, nine-year-old Cristina and twenty-one-month-old Consuelo, in the care of Mr. Benavides, who often stayed with her and her daughters. Cristina and Consuelo were watching television and coloring when Ms. Medina left. Cristina asked if she could visit her friend, Maribel, who lived in the same apartment complex, and she was given permission to go. .Approximately fifteen minutes later, Mr. Benavides called for her to return home, When Cristina returned to the apartment, Mr. Benavides was holding Consuelo. Mr. Benavides had Cristina call her mother at the hospital. Ms. Medina returned home and she and Mr. Benavides immediately took Consuelo to the emergency room at DRMC. Dr. Ann Tait, the emergency room physician at DRMC, and the emergency room nurses, were the first to observe and treat Consuelo on the night of November 17, 199 1. Dr. Tait began treating Consuelo for a head injury, but soon realized that Consuelo required a higher level of care than DRMC was equipped to provide and arrangements were made to transfer her to Kern County Medical Center ("KMC") in Bakersfield. At this time, Consuelo's abdomen began distending, indicating internal bleeding and a worsening of her condition. Consuelo was then transferred to Kern Medical Center for surgery and a higher level of care. On November 19, 199 1, she was transferred to UCLA Medical Center, where she underwent hrther surgery. She died on November 25, 199 1 as a result of her internal injuries. The prosecution persuaded the jury, through medical testimony, that petitioner beat, shook, suffocated, squeezed, raped and sodomized Consuelo Verdugo to death. The prosecution asserted that Consuelo sustained injuries to her abdomen, head, genitalia and anus. Through the testimony of Dr. Jess Diamond, a pediatrician specializing in child abuse at Kern Medical Center ("KMC"), the prosecution claimed the alleged injuries that Dr. Diamond observed during his limited examination of Consuelo on November 18, 199 1, were attributable to sexual assault. Dr. Bloch, a surgeon at KMC, performed surgery on Consuelo on November 18, 1991. He testified that he observed blood in her abdomen; a severed pancreas and duodenum; and old scarring and adhesions between the colon and liver. Dr. Bloch concluded that these injuries were indicative of some form of blunt force trauma to the abdomen. Dr. Bentson, chief of neuroradiology at UCLA Medical Center ("UCLA"), testified to his findings on a Computerized Tomography (CT) scan taken on November 21, 1991, of Consuelo's brain. Dr. Bentson observed bilateral watershed brain infarcts of the parietal occipital area of Consuelo's brain. He concluded that these infarcts were attributable to the child being suffocated. Dr. Bentson's conclusion was based solely on his review of the CT scan. He never reviewed any medical records or medical history of Consuelo and her hospital treatment prior to the CT scan. The prosecution called Dr. James Dibdin, a forensic pathologist, who conducted the autopsy of Consuelo on November 26, 1991. Dr. Dibdin testified that during the autopsy he had observed evidence of injuries to the genitalia and anus, rib fractures, and a subdural hematoma. Based upon his findings during the autopsy, Dr. Dibdin testified that the cause of death was blunt force penetrating injury of the anus. He opined that Consuelo's internal injuries were the result of sodomy. Dr. Dibdin concluded that the subdural hematoma and rib fractures he observed were a direct result of squeezing and shaking. He opined that the pattern of injuries that the child displayed was indicative of Shaken Baby Syndrome. To hrther bolster the case against petitioner, the prosecution elicited testimony from Dr. Diamond, Dr. Dibdin and Dr. Bentson, that the injury to Consuelo's inner lip and bridge of her nose was a direct result of a hand being placed over her mouth. The prosecution argued this scenario was the method of suffocation used. Criminalist Jeanne Spencer testified that no vomit was found outside in the doorway but was found on some tissue in the kitchen garbage can. . She found that carpet fibers in the vomit were consistent with the carpet in the apartment. The prosecution argued the lack of dirt in the vomit discredited petitioner's testimony regarding how and where he found the child. The prosecution presented lay witness observations of alleged prior illnesses and injuries of Consuelo. Despite any possible connection of these prior illnesses and alleged injuries to petitioner, the prosecution argued to the jury that petitioner was the perpetrator. In addition, the prosecution presented a significant amount of evidence relating to Estella Medina's character and background. During its case, the defense presented two doctors - Dr. Nat Baumer and Dr. Warren Love11 - to dispute the alleged injuries and to theorize a motor vehicle accident as the likely cause. Petitioner testified to the events leading up to the discovery of the child outside. Several character witnesses were called to attest to petitioner's honesty and good character. The prosecution, during his closing argument, assured the jury that all of the medical experts presented were percipient witnesses whose qualifications were superior to those called by the defense. The prosecution argued that all medical personnel who had seen the child agreed that all of the injuries were attributable to physical and sexual abuse. The prosecution challenged the defense to come forward and tell the jury about one witness who saw Consuelo and did not find the injuries that all of the other witnesses catalogued. During the penalty phase, the prosecution presented victim impact testimony of three of Consuelo's relatives - her Aunt Diana Alejandro, and two cousins, Darlene and Vicki Salinas. The defense penalty phase of the trial consisted solely of the ,testimony of two witnesses - Dionicio Carnpos, a lifelong friend and Delfino Trigo, petitioner's employer. Each testified to petitioner's good character. Only at the court's suggestion did the prosecution and defense stipulate to the fact that petitioner had no prior felony convictions and no prior acts of violent conduct. The entire penalty phase, including opening statements and closing arguments, lasted less than two hours. B. Evidence Presented in this Petition The , r emergency room staff at DRMC was the first medical personnel to treat Consuelo on November 17, 1991. All of the DRMC staff who observed Consuelo in the first two hours following the incident, affirmatively and emphatically stated to law enforcement, that they had not seen any injuries to Consuelo's genitalia or anus. Had Consuelo been raped and sodomized the injuries to her genitalia and anus would have been grossly obvious. The observations of these critical percipient witnesses to Consuelo's condition were never presented at trial. Significantly, the jury did not hear any testimony about the invasive medical treatment undertaken of Consuelo that produced the "signs" of sexual abuse used to convict Mr. Benavides. The jury similarly never heard that the cause of death about which Dr. Dibdin testified -- blunt force penetrating injury of the anus -- is anatomically impossible. In addition, contrary to the prosecution's assertion that there was no evidence Consuelo suffered a seizure, the medical records from UCLA Medical Center are replete with notations of seizure activity observed in Consuelo. The prosecution and law enforcement officials withheld evidence, reports, interviews and exculpatory material from the defense throughout .the investigation and provided and elicited false testimony and argument throughout the prosecution of petitioner. The state withheld evidence of concerted efforts of law enforcement, the prosecution and Child Protective Services ("CPS"), to coerce Estella Medina and her daughter, Cristina Medina, to cooperate with the prosecution of petitioner. Family members were used as agents of law enforcement to extract information from witnesses to use against petitioner. Lay witnesses and medical personnel were tainted with the state's theories of rape and sodomy during interviews and investigation. Law enforcement reports and notes, withheld from the defense, confirmed the existence of dirt and debris in the vomit found in the kitchen garbage can, lending credence to petitioner's version of events and directly undermining the prosecutor's argument. Although the prosecution presented the jury with a myriad of prior injuries that Consuelo suffered at the hands of Mr. Benavides, the truth is that the prosecution was well aware that Mr. Benavides had nothing to do with those injuries. The jury never heard from Mr. Benavides's family and friends who had known him throughout his life in Mexico and the United States. The jury never learned that, despite a childhood plagued by severe physical abuse, extreme malnutrition, and poverty, Mr. Benavides was a kind, caring man who hurt no one. The jury did not hear that he suffers from major depression, alcoholism, post-traumatic stress disorder, and significant cognitive deficits. Mr. Benavides was born into a family whose history included mental illness, alcoholism, extreme poverty, malnutrition, and horrific physical and psychological abuse. Mr. Benavides's genetic legacy is one of generations of poor peasants, initially enslaved to work the haciendas of wealthy landowners and condemned to poverty to work as campesinos, or peasants, in a system of sharecropping under which few families were able to thrive. Attempts by the campesinos to organize and better their conditions were met with violence and death. As a result, Mr. Benavides's parents, like their ancestors, began and ended their lives in extreme hardship. Throughout his childhood, Mr. Benavides suffered continuous physical abuse at the hands of his father. His father was a physically, emotionally and verbally abusive, mentally ill, alcoholic who abused petitioner, his siblings and his mother on a regular basis. Mr. Benavides attempted to defend his mother from the beatings meted out by his father. His developmental well-being was at risk even before his birth because his father beat and whipped his mother while she was pregnant. Mr. Benavides's mother lost at least one child as a result of his father's beatings. From birth, Mr. Benavides's world consisted of relentless and inescapable trauma, abuse, alcoholism, mental illness and severe poverty and malnutrition. Mr. Benavides grew up in an extremely poor farming settlement, where there was no running water, no electricity, and insufficient food. As a baby, food and water were often not available to him and throughout his youth. Mr. Benavides and his family were often forced to live off of hard tortillas and water and went to bed hungry, including during a period of particularly severe drought when Mr. Benavides was a toddler. His father isolated the family and deprived them of food, compounding the poverty and misery Mr. Benavides suffered to levels far more severe than were common in the already poor area in which they lived. At the age of four or five, Mr. Benavides began working grueling hours in the fields. Exposed to pesticides and other poisons, Mr. Benavides .toiled on the barren land for the meager products it generated. Forced to work in the fields by his father, Mr. Benavides was severely beaten and whipped if his father felt he was not working hard enough. Mr. Benavides was fed at a very young age and he suffers from a multigenerational predisposition to alcoholism. As a infant, Mr. Benavides's parents gave him leche caliente, a regional drink made of fresh cow's milk, sugar, chocolate, and alcohol. A number of Mr. Benavides's relatives, including his father and several of his uncles, are alcoholics. Mr. Benavides's life was shaped by violence, poverty, emotional abuse and a genetic predisposition towards depression and alcoholism. He has suffered from significant depression and post traumatic stress disorder from early childhood on through his adulthood. Mr. Benavides has also demonstrated significant cognitive deficits throughout his life from the time he was a young boy, when his mental limitations became abundantly clear to his teachers and his peers, into his adulthood, where he made every effort to surround himself with others who cared for him and handled the larger decisions and responsibilities in his life. Despite his father's attacks, Mr. Benavides was quiet and extremely hardworking as a child, a young man, and as an adult. Mr. Benavides has a long history of being a caring and loving father to several children, some of whom were not his own, taking on the role of father for his nieces after his brother-in-law passed away and left Mr. Benavides's sister with two daughters under the age of three. Having twice suffered the tragic loss of a newborn child due to bronchopneumonia and complications related to premature birth, Mr. Benavides was left profoundly and traumatically affected in a way that played a significant role in Mr. Benavides's case. The wealth of information regarding Mr. Benavides's background and upbringing, as well as the numerous relatives and friends willing to testifjr on behalf of petitioner at his trial, was never introduced to the jury. Throughout the court proceedings and throughout Mr. Benavides's representation and attorney-client relationship, he was deprived of competent and certified interpreters. The interpreters provided by the state and present in court, before and during trial, to assist him and any monolingual Spanish-speaking witnesses, were extraordinarily deficient. As a result, Mr. Benavides was not fully informed of the happenings in the courtroom because there was no competent interpreter available to him throughout the proceedings. Likewise, the interpreter who was the main conduit between Mr. Benavides's Spanish-speaking friends and family and who interpreted some of their testimony had very poor Spanish language skills which hindered communication and led to very poor interpretation of their court testimony. 111. BASIS FOR JURISDICTION This Court affirmed petitioner's conviction and sentence on February 17, 2005. Pursuant to this Court's order of January 23, 2008, this corrected amended petition is timely filed. This petition is necessary because petitioner has no other plain, speedy, or adequate remedy at law for the substantial violations of his constitutional rights as protected by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, the California constitutional analogues and Penal Code Section 1473, in that the bulk of the factual bases for these claims lies outside the record developed on appeal. IV. JUDICIAL NOTICE AND INCORPORATION Petitioner hereby incorporates all exhibits filed with this petition as if fully set forth herein. Petitioner requests that this Court take judicial notice of the certified record on appeal and all pleadings on file in this Court in the cases of People v. Benavides, Case No. 48266, to avoid duplication of those voluminous documents. V. SCOPE OF CLAIMS AND EVIDENTIARY BASES Because a reasonable opportunity for full and factual investigation and development through access to this Court's subpoena power and other means of discovery, interview material witnesses without interference from State actors, and an evidentiary hearing have not been provided to petitioner or his habeas corpus counsel, the full evidence in support of the claims which follow is not presently reasonably obtainable. Nonetheless, the evidentiary bases that are reasonably obtainable and set forth below, adequately support each claim and justi@ issuance of the order to show cause and the grant of relief. VI. CLAIMS FOR RELIEF A. CLAIM 1: THE STATE PRESENTED FALSE AND MISLEADING TESTIMONY THAT PETITIONER CAUSED CONSUELO VERDUGO'S INJURIES~ The convictions and sentence of death were rendered in violation of petitioner's rights to fair, reliable, rational, nonarbitrary and accurate determinations of guilt and penalty, to a fair trial free from false and misleading evidence, to an opportunity to confront and refute adverse evidence, to compulsory process, to the disclosure of all material exculpatory evidence, to the assistance of competent experts, and to the effective assistance of counsel as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 7, 9, 12, 13, 14, 15, 16, 17, 24, 27 and 28 of the California Constitution and Penal Code Section 1473 because the prosecution introduced, and trial counsel unreasonably and prejudicially failed to exclude or refute, false testimony about the nature and extent of the injuries to the victim, rape, and sodomy. In support of this claim, petitioner alleges the following facts, among others to be presented after full discovery, investigation, adequate hnding, access to this Court's subpoena power, and an evidentiary hearing: ' This Claim qualifies as a Category 2 claim as described in this Court's November 1, 2006 Order. Modifications made in each claim are fully described in the Declaration of Michael Laurence, filed separately with the Court in support of this Corrected Amended Petition. 1. The State's case against petitioner was premised upon the unreliable and professionally irresponsible autopsy conducted by Dr. James Dibdin. a. The Kern County Coroner's Office, with which Dr. Dibdin was affiliated, had a history of falsifying evidence in criminal cases in order to assist prosecutors in securing convictions, and similar allegations of misconduct continue to the present. Recently, Kern County forensic pathologist Donna L. Brown was found to have deliberately omitted information from her autopsy report in the 1998 death of a two-year-old child in order to help prosecutors secure a conviction against her parents. b. Dr. Dibdin had a reputation for incompetence and unprofessionalism. His history included the following incidents of misconduct and incompetence: ( I ) Dr. Dibdin was fired from the Oklahoma City Medical Examiner's Office for the poor quality of his autopsies and for rendering erroneous causes of death. (2) He was fired from his post as a Medical Examiner in Tasmania, Australia for unacceptable practices and giving erroneous causes of death. (3) He was fired from the San Bernardino County, California, Coroner's Office for the poor quality of his forensic practices and for the poor quality of his causes of death. (4) He was fired from the Brown County, Wisconsin, medical examiner's office for marking on death certificates that autopies had been performed in cases when they had not, and for offering questionable causes of death. (5) He was fired by the Kern County Coroner for questionable practices as a pathologist and for refusing to correct erroneous causes of death. He had heated disagreements with staff in the Coroner's Office over causes of death because other staff members believed his findings were unsupported. (6) His contract with Nevada County, California, was terminated after he made incorrect and misleading cause of death determinations in several cases and refbsed to revise them when requested to do so by the County Coroner. (Exh. 47 at 4770-82 [James D. Dibdin, M.D. v. County of Nevada, State of California, et al., Sacramento County Superior Court, Case No. 96-AS-0 16971 .) c. Dr. Dibdin had incorrectly determined the cause of death in other cases involving children. He erroneously attributed the August 3 1, 1992, death of an 8-month-old boy to violent shaking. The boy's father told police he had attempted to resuscitate the boy by pressing on his chest and abdomen after he inexplicably stopped breathing. Dr. Dibdin concluded that this explanation was inconsistent with the injuries he observed at autopsy. He testified at the father's trial that it would have taken 25 to 30 minutes for the boy to die as a result of his injuries. Witnesses testified that the father had been alone with the boy for no more than 15 minutes. In light of Dr. Dibdin's false testimony, the judge made the unusual move of dismissing the case prior to closing arguments for lack of evidence. d. Dr. Dibdin's autopsy report concerning Consuelo Verdugo's death fits into this pattern of unprofessionalism and is fundamentally unreliable, as he did not prepare it until January 2 1, 1992, nearly two months after November 26, 1991, the date on which he had conducted the autopsy. (Exh. 8 at 3561 [Autopsy Protocol in Autopsy of Consuelo Verdugo].) Rather than a direct record of his observations, this report is a reconstruction based upon Dr. Dibdin's memory of the autopsy, and as such is unreliable. (Exh. 77 at 5452 [Declaration of Jack H. Bloch, M.D.].) 2. The State denied petitioner a fundamentally fair trial when it delayed creation of the autopsy report until after the preliminary hearing in order to manufacture medical evidence. Because petitioner's counsel did not have an autopsy report at the preliminary hearing, they were not able to challenge the validity of the cause of death offered by Dr. Dibdin. a. Dr. Dibdin delayed preparation of the report in order to manufacture evidence. The prosecution developed its theory that Consuelo was raped and sodomized to the point of causing abdominal injury and death, on November 18, 1991. (Exh. 4 at 1913 [Delano Police Report, November 19, 19911.) Even though this cause of death was medically impossible, the prosecution requested that Dr. Dibdin provide support for this cause of death in the autopsy report. Dibdin therefore completed the autopsy report not from his findings, or from what he saw, but according to the research and necessity of the prosecution. b. Detective Bresson testified at the preliminary hearing that Dr. Dibdin had told him the cause of death was "blunt force penetrating injury to the anus." (1 CT at 212.) Dr. Dibdin's theory that anal penetration also caused the injury to the upper abdominal contents was manufactured after the preliminary hearing when the autopsy report was prepared on January 2 1, 1992. (Exh. 8 at 356 1 [Autopsy Protocol].) 3. The State presented false testimony that Consuelo Verdugo had genital injuries that were caused by rape. a. The State presented testimony from Dr. Jess Diamond that Consuelo had injuries to her genitalia resulting from rape, even though these injuries were more likely the result of trauma from medical interventions administered after her arrival at the hospital. Dr. Diamond, a pediatrician who conducted sexual abuse examinations for Kern County, testified that in conducting his examination of Consuelo, he had observed a laceration of her hymen and a bruise on her perineum. He testified that these injuries were the result of penetration of the vagina. (1 0 RT at 2064.) b. The prosecution knew that this testimony was false. The prosecution had in its possession records demonstrating that, prior to Dr. Diamond's examination, medical personnel at DRMC and. KMC had repeatedly and unsuccess~lly attempted to insert a catheter into Consuelo's bladder to draw urine. (Exh. 1 at 5 [Nursing Notes of Linda Roberts, R.N., November 17, 19911; Exh. 2 at 59 [Nursing Notes of Betsie Lackie, R.N., November 18, 19911.) In some of these attempts a catheter that was too large for her urethra was used. (Exh. 72 at 5420 [Declaration of Anita Caraan Wafford, L.V.N.].) These repeated and unsuccessful attempts to insert catheters, along with the intensive digital manipulation of the genitalia that catheterization requires, most likely were the cause of the genital injuries he observed. (Exh. 83 at 5497-99 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 79 at 5470 [Declaration of Anthony Shaw, M.D.]; Exh. 78 at 5458 [Declaration of Rick Harrison, M.D.].) c. Had these injuries been the result of sexual assault prior to her arrival at the hospital, the staff at DRMC would have observed bleeding, lacerations, bruises, or other evidence of injury in Consuelo's genitalia. They did not observe any evidence of injury despite having ample time and opportunity to do so. (Exh. 76 at 5442 [Declaration of Anne E. Tait, M.D.]; Exh. 74 at 5432 [Declaration of Linda Roberts, R.N.]; Exh. 75 at 5437 [Declaration of Faye Van Worth, R.N.]; Exh. 72 at 5420 [Declaration of Anita Caraan Wafford, L.V.N.].) Their observations of Consuelo's genitalia and anus were the first to be made and were made before Consuelo underwent repeated unsuccessful attempts at catheterization, extensive efforts at resuscitation at DRMC and KMC, and major abdominal surgery. These observations are, therefore, the most reliable available evidence of the state of Consuelo's genitalia and anus prior to medical intervention. (Exh. 83 at 5499 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 77 at 5450 [Declaration of Jack H. Bloch, M.D.]; Exh. 79 at 5467 [Declaration of Anthony Shaw, M.D.].) d. Dr. Diamond testified falsely that Consuelo's genitalia and anus were the only parts of her body in which he observed edema, or swelling, and that the swelling was a result of trauma to these areas. (10 RT at 2077.) (1) The prosecution knew that the swelling was the result of Consuelo's medical condition at the time of his examination. Her edema was caused by her disseminated intravascular coagulation (DIC), a condition in which the blood loses the ability to clot, leading to uncontrolled bleeding and edema. Edema that affects the entire body will manifest more dramatically in areas where the fluid settles due to gravity, including the genital and anal areas. (Exh. 83 at 5502 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 82 at 5493 [Declaration of Dale S. Huff, M.D.] .) (2) The prosecution presented inflammatory photos of Consuelo's swollen body to the jury. They argued that Consuelo's genitalia were the only portions of her body that were swollen and that this was due to injuries inflicted by petitioner. (1 1 RT at 2155.) In fact, the prosecution knew that these photos were falsely presented and inflammatory, that Consuelo's body was swelling due to her medical condition, and that this swelling affected her entire body, not just her genitalia. e. Dr. Dibdin falsely attributed the injuries of the genitalia he observed during the autopsy to rape and mischaracterized the severity of the injuries. (1 1 RT at 2143.) He noted in his autopsy report a one-half inch laceration of the "posterior wall of the vaginal opening" and an abrasion of the skin between the vagina and anus. (Exh. 8 at 3557 [Autopsy Protocol].) He cited this injury in his testimony as evidence of vaginal penetration, and characterized it as "quite a large laceration." (1 1 RT at 2123.) The tear is in fact relatively small and entirely inconsistent with penetration of the vagina by a penis or similarly sized object, which would have resulted in extensive laceration of the vagina and external genitalia. It was most likely caused by a catheter during the repeated attempts at catheterization at DRMC and KMC. (Exh. 83 at 5510-1 1 [Declaration of William A. Kennedy, 11, M.D.].) f. Dr. Dibdin's use of the phrase "posterior wall of the vaginal opening" to describe the location of the tear he observed in her genitalia is inconsistent with accepted medical terminology and was intended to obscure the exact the location of the tear. It is impossible to determine from this description whether this tear is in the external genitalia or inside the vagina. (Exh. 83 at 5509-10 [Declaration of William A. Kennedy, 11, M.D.].) g. Dr. Didbin falsely testified that he observed swelling only around Consuelo's genitalia and anus (10 RT at 2055), when in fact she had severe swelling over her entire body. (Exh. 3 at 1002 [Extended Critical Care Examination Note, Rick Harrison, M.D., November 20, 199 11 .) Edema of the entire body would be more pronounced in areas such as the genitalia and anus due to gravity. (Exh. 83 at 5502 [Declaration of William A. Kennedy, 11, M.D.].) 4. The State manufactured medical testimony that Consuelo had internal tears of her vagina and rectum that indicated she had been vaginally and anally penetrated with a penis or similar size object. a. The State presented the testimony of Dr. Diamond that there was a tear to the anterior wall of Consuelo's vagina, when in fact none existed nor was documented in the autopsy report or in the records of any of the medical personnel who treated her. He offered the existence of this tear as support of his contention that she had been raped. (10 RT at 2060.) b. Dr. Dibdin testified that Consuelo had tears in her anus, vagina, and urinary bladder of up to four weeks in age. Dr. Dibdin testified that he saw these injuries in the microscopic slides he reviewed during the autopsy. These tears "weren't in one particular area," according to Dibdin, but "were depicted in several areas" in the anus, vagina and urinary bladder. (1 1 RT at 2140.) Dr. Dibdin attributed these tears to anal penetration, which caused the internal abdominal injuries. (1 1 RT at 2166- 67 .) c. The prosecution knew that no such injuries existed. Tissue slides of Consuelo's perineum, cut by the Kern County Coroner's Office, contain no evidence of tears or scarring, either new or old. (Exh. 82 at 5489-90 [Declaration of Dale S. Huff, M.D.].) The slides have evidence of hemorrhage. In some areas, this hemorrhage was up to two days of age, and in another area was no more than ten days old. This older hemorrhage present in the slides was most likely the result of massive bleeding in Consuelo's abdomen during her eight days of hospitalization and her acute state of DIC. The hemorrhage that is present is not evidence of penile penetration and is most likely the result of internal bleeding from her abdominal injuries and DIC. (Exh. 82 at 5490-92 [Declaration of Dale S. Huff, M.D.] .) d. Testimony by Dr. Diamond directly contradicted Dr. Dibdin's testimony that tears to the anus could account for anal penetration with a penis causing damage to upper abdominal organs. He testified that he had revised his opinion of the abdominal injuries after he learned that there was no tear of the rectum: At that time [i.e. of the Preliminary Hearing] it was my opinion [that the abdominal injuries were caused by penetration of the rectum]. At this time I understand there was no tear to her rectum, which I was told at the time there was. (RT 2085.) 5 . The State presented false testimony that Consuelo Verdugo had anal injuries that were the result of sodomy a. The State presented the testimony of Dr. Diamond that the lacerations of the anus he observed were the result of sodomy, when in fact they were most likely caused by the extensive medical intervention she had undergone prior to his examination. (10 RT at 2052.) He failed to record the size or severity of these injuries. Prior to his examination, Consuelo had undergone numerous invasive procedures as part of efforts at resuscitation. Among these were multiple insertions of rectal thermometers to measure her body temperature. (See, e.g., Exh. 1 at 5 [Nursing Notes of Linda Roberts, R.N., November 17, 199 11.) She had also undergone digital manipulation of her anus as part of prior physical examinations. (See, e.g., 13 RT at 2690.) The tears Dr. Diamond observed were not noted earlier at either the DRMC or KMC emergency rooms, and were not subsequently observed by Dr. Anthony Shaw of the University of California, Los Angeles Medical Center ("UCLA") on November 20, 199 1, when he conducted an examination of Consuelo's anus and lower rectum. (Exh. 3 at 961 [Operative Report of Anthony Shaw, M.D., November 20, 199 11.) Nor are they apparent in photographs taken at UCLA on November 21, 1991. (Defendant's Exhibits Z and AA, April 13, 1993.) Had these tears been present at the time of Dr. Diamond's examination, they would have been superficial, since they were not visible to Dr. Shaw two days later. Severe lacerations of the anus would not have healed between Dr. Diamond's examination and Dr. Shaw's. They were therefore most likely caused by insertions of rectal thermometers and digital examinations into her anus by medical personnel. (Exh. 83 at 5505 [Declaration of William A. Kennedy, I1 M.D.].) b. The lacerations of the anus observed by Dr. Diamond were not present when Consuelo arrived at DRMC. The staff at the DRMC emergency room saw no evidence of injury to Consuelo's anus despite ample time and opportunity to do so. (Exh. 83 at 5498 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 76 at 5442 [Declaration of Anne E. Tait, M.D.]; Exh. 74 at 5432 [Declaration of Linda Roberts, R.N.]; Exh. 75 at 5437 [Declaration of Faye Van Worth, R.N.]; Exh. 72 at 5420 [Declaration of Anita Caraan Wafford, L.V.N.].) Had there been tears resulting from a sodomy prior to her arrival at the hospital, these tears would have been actively bleeding and clearly visible upon her arrival. There would have been blood in her diaper and covering her genital and anal areas. (Exh. 83 at 5509 [Declaration of William A. Kennedy, 11, M.D.].) c. Dr. Diamond testified falsely that the blood he observed in Consuelo's rectum was evidence of injury due to sodomy. (10 RT at 2050.) The prosecution knew when it presented this testimony that the blood was a result of Consuelo's compromised medical condition. Reports indicated that Consuelo was in a state of DIC prior to Dr. Diamond's examination. (Exh. 2 at 78 [Progress Record, Jack H. Bloch, M.D., November 18, 19911.) She was oozing blood from her nose, mouth, vagina, and rectum when Dr. Diamond arrived to conduct his examination. (Exh. 2 at 154 [Nursing Notes, K. Holloway, R.N., November 18, 199 11.) This blood was all the result of DIC. (Exh. 83 at 5503 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 79 at 5468 [Declaration of Anthony Shaw, M.D.].) Dr. Diamond's testimony makes clear that he was aware of her critical medical condition but did not reveal its significance for his diagnosis of sexual abuse. (10 RT at 2048-49.) d. Dr. Diamond testified falsely that the laxity of Consuelo's anal sphincter muscle was due to sodomy, when it was most likely caused by the administration of paralytic agents by medical personnel prior to his examination. Laxity of the anal sphincter is a well-known side effect of paralytic agents. Given the course of her medical treatment prior to Dr. Diamond's examination, which included prolonged life-saving efforts and extensive surgery, it was improper and medically unsound for him to take the laxity of the anus as evidence of penetration. (Exh. 83 at 5503 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 77 at 5450 [Declaration of Jack H. Bloch, M.D.]; Exh. 79 at 5470 [Declaration of Anthony Shaw, M.D.].) e. Dr. Diamond testified falsely that Consuelo's genitalia and anus were the only parts of her body in which he observed edema, or swelling, and that the swelling was a result of trauma to these areas, when he knew that the swelling was the result of her medical condition at the time of his examination and involved her entire body. (10 RT at 2076-77.) Her edema was caused by her DIC. Edema that affects the entire body will manifest more dramatically in areas where the fluid settles due to gravity, including the genital and anal areas. (Exh. 83 at 5502 [Declaration of William A. Kennedy, I1 M.D.]; Exh 82 at 5493 [Declaration of Dale S. Huff, M.D .] .) f. Dr. Dibdin testified falsely that he had observed severe lacerations of the anus that were evidence of sodomy. He stated that these lacerations were so severe as to have cut completely through the anal sphincter muscle. The staff in the DRMC and KMC emergency rooms did not note these tears, despite ample time and opportunity to do so. When Dr. Shaw examined Consuelo's anus at UCLA on November 2 1, 199 1, he did not observe any tearing of her anus. (Exh. 3 at 961 [Operative Report of Anthony Shaw, M.D., November 20, 19911.) Had tearing been present, lacerations of the severity Dr. Dibdin describes would have been observed in these examinations. (Exh. 83 at 5505 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 77 at 545 1 [Declaration of Jack H. Bloch, M.D.].) g. Dr. Shaw may have inadvertently caused or contributed to the injury of the anus while performing an anoscopy on November 21, 1991. An anoscopy involves examination of the rectum by means of an instrument that is inserted into the anal opening. An anoscope is too large to have been used on the rectum of a child Consuelo's age, and its insertion could have lead to lacerations, particularly in light of her comprised medical condition at that time. (Exh. 77 at 545 1 [Declaration of Jack H. Bloch, M.D.].) h. Dr. Dibdin falsely attributed the laxity of the anal sphincter he observed on autopsy to traumatic injury of the anus as a result of sodomy. He testified that the lacerations went completely through the sphincter muscle, causing the anus to become lax. (1 1 RT at 21 19) These lacerations were not noted by Dr. Shaw when he conducted his examination on November 20, 1991. (Exh. 3 at 961 [Operative Report of Anthony Shaw, M.D., November 20, 19911.) Laxity of the anal sphincter after death is a well known post mortem change. It was inappropriate and misleading of Dr. Dibdin to attribute this change to sodomy. (Exh. 79 at 5471 [Declaration of Anthony Shaw, M.D.].) 6. The State presented false testimony that Consuelo Verdugo's internal injuries, and ultimately her death, resulted from sodomy. a. The State presented the testimony from Dr. Dibdin concerning the cause of Consuelo's abdominal injuries and her death that are anatomically impossible. Dr. Dibdin testified that Consuelo's internal injuries, including her transected pancreas, duodenum, and transverse mesocolon, were caused by "blunt force penetrating injury of the anus which caused lacerations of the anus together with injury to multiple organs including the bowel and pancreas." (Exh. 8 at 3561 [Autopsy Protocol].) It is not possible for an object entering the rectum to cause injury to the abdominal contents without also causing a rupture of the wall of the rectum. (Exh. 83 at 55 11 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 77 at 5449 [Declaration of Jack H. Bloch, M.D.]; Exh. 79 at 5466-7 [Declaration of Anthony Shaw, M.D.].) It is also not possible for an object entering the rectum to cause injury to the pancreas, duodenum, and transverse mesocolon, which are located in the upper abdomen, without also causing injury to the organs located between them, including the sigmoid colon. (Exh. 83 at 55 11 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 77 at 5449 [Declaration of Jack H. Bloch, M.D.]; Exh. 78 at 5456-7 [Declaration of Rick Harrison, M.D.]; Exh. 79 at 5465-66 [Declaration of Anthony Shaw, M.D.].) b. The State had evidence from the medical reports that directly contradicted this cause of death. (1) The DRMC emergency room medical personnel were adamant in interviews with police that they saw no evidence of injury to the anus when they examined Consuelo on November 17, 1991. (Exh. 4 at 1692-93 [Delano Police Interview with Linda Roberts]; Exh. 4 at 1746 [Delano Police Interview with Faye Van Worth].) Had Consuelo been injured by penetration of the rectum with sufficient force to cause injury to her internal organs, both lacerations of the anus and bleeding would have been noted by DRMC personnel. (Exh. 83 at 5498 [Declaration of William A. Kennedy, 11, M.D.]; Exh. 77 at 5450 [Declaration of Jack H. Bloch, M.D.]; Exh. 78 at 5457[Declaration of Rick Harrison, M.D.].) (2) Dr. Bloch at KMC noted on November 18, 199 1, after performing abdominal surgery, that Consuelo's colon was intact. (Exh. 2 at 128 [Operative Report by Dr. Jack H. Bloch, M.D.].) (3) On November 20, 1991, Dr. Shaw at UCLA performed surgery on Consuelo's abdomen. In doing so, he examined her colon and also found it intact. (Exh 3 at 961 [Operative Report of Anthony Shaw, M.D., November 20, 19911.) He also performed an anoscopy and found that Consuelo's rectum and anus had no signs of lacerations. 7. The State presented false testimony that Consuelo Verdugo's rib fractures and abdominal injuries were caused by petitioner squeezing her a. Dr. Dibdin testified falsely concerning the location of the rib fractures. The description of the location of the acute and healing fractures is not supported by the reports or testimony of any of the radiologists who examined Consuelo while she was hospitalized. The prosecution knew that the radiologists who examined Consuelo at DRMC, KMC, and UCLA had identified rib fractures inconsistent with Dr. Dibdin's testimony. (1) Dr. Dibdin testified that Consuelo had acute rib fractures of ribs 6-10 on both sides of the body near the spine, as well as of ribs 6-10 on the right in the front. He also testified that she had older healing rib fractures on ribs 8 and 9 on the left in the back. (11 RTat 2125.) (2) Dr. Seibly, a radiologist at KMC, testified that the radiographs from KMC depicted fractures showing signs of healing in ribs 8-10 on the right rear, a location where Dr. Dibdin had seen recent fractures that were not yet healing. He noted also an acute displaced fracture of the left 8th rib in the front, where Dr. Dibdin had not seen any sign of fracture. (12 RT at 25 14.) (3) Dr. Dibdin's evaluation of Consuelo's bone injuries is superficial and incomplete. Not only did he miss the displaced fracture of the left front gth rib described by Dr. Seibly, but he failed to note the healing fracture of Consuelo's left wrist which was radiographed on September 24, 1991. (Exh. 1 at 24 [Radiology Report of Dr. MacLennan, September 24, 199 11.) (4) Radiologist Dr. Chabra at DRMC noted healing fractures of the right front ribs 8-10, a location where Dr. Dibdin had observed acute fractures, and a recent displaced fracture of the gth rib on the right, either on the front or back. (Exh. 1 at 20 [Addendum Radiology Report of Dr. J. Chabra, M.D., December 4, 19911.) (a) The prosecution and law enforcement deliberately fabricated Dr. Chabra's radiologic findings in an attempt to make them more consistent with Dr. Dibdin's findings. Dr. Chabra first dictated his report on November 18, 199 1, after reviewing a radiograph of Consuelo's chest taken on November 17. He saw no evidence of rib fractures. (Exh. 1 at 19 [Radiology Report of Dr. J. Chabra, November 1 8, 199 11 .) (b) On December 2, 1991, he placed an Amended Report in the medical chart, in which he identified healing fractures of the gth through loth ribs on the right. He estimated that these fractures were 2 to 3 weeks old. (Exh. 1 at 21 [Amended Radiology Report of J. Chabra, December 2, 199 11.) (c) Two days later, he added an Addendum Report which added mention of a recent fracture of the left gLh rib with displacement of the fragments. (Exh. 1 at 20 [Addendum Radiology Report of Dr. J. Chabra, December 4, 19911.) Dr. Chabra added this Addendum Report at the prompting of Delano Police Detectives Valdez and Nacua, who although not medically trained, purported to conduct their own review of the radiographs and identified additional rib fractures not noted in Dr. Chabra's original and amended reports. (Exh. 5 at 2607 [Delano Police report, Det. J. Nacua, December 4, 199 11 .) b. Based upon of the location of these fractures, Dr. Dibdin testified that the mechanism of injury was gripping of the torso and squeezing. (I) According to Dr. Dibdin, Consuelo's assailant held her with his hands on either side of her torso and squeezed, compressing her rib cage and causing symmetric fractures of her ribs near the spine with his fingers. (1 1 RT at 2128-29.) (2) Research conducted since the 1980s and existing at the time of trial demonstrates that this is not the mechanism of injury for this pattern of posterior rib fractures. Posterior rib fractures occur as a result of a compressive force applied from front to back which forces the ribs to bend backward past the spinal column. When a child is gripped - with the thumbs in front and fingers in back near 'the spine - and squeezed, the ribs are forced backward against the vertebrae, which act as levers against which the ribs fracture. The force exerted by the fingers themselves does not directly cause the ribs to fracture. (3) Squeezing is only one means by which compressive force can be applied to the chest. Compression can also be applied as a result of blunt force to the chest or deceleration, as when a child accelerates face-forward into a solid object or face- down to the floor. The resulting deformation of the rib cage results in the same pattern of rib fractures as in squeezing. 8. The State presented false and misleading testimony that Consuelo Verdugo's rib injuries occurred on November 17, 199 1, and not before that date. a. Dr. Dibdin testified that the rib fractures occurred less than 7 days prior to death. (1 1 RT at 2 158.) b. Dr. Love11 testified that the acute rib fractures occurred "within a week or two" prior to death. (16 RT at 3 102.) c. The State falsely presented evidence that the acute rib fractures were less than seven days in order to limit their causation to petitioner's agency on the night of the incident. 9. The State presented false evidence that the healing fractures were three to four weeks old and tried to link the fractures to prior incidents. The State falsely insinuated that petitioner was responsible for the prior incidents and healing rib fractures. a. Dr. Dibdin testified that the healing rib fractures were 3-4 weeks old. (1 1 RT at 2128.) Dr. Lovell testified that the healing fractures were up to two months old. b. Diana Alejandro testified that around Halloween, Consuelo had a fever and was crying and in pain. (14 RT at 273 1-32.) c. The prosecution knew that Consuelo had many other injuries that could have accounted for the healing fractures which were totally unrelated to petitioner. Estella Medina testified that Consuelo had once fallen from a recliner and landed on her head on the ground outside the apartment. (13 RT at 2558-59.) Consuelo broke her wrist in September 1991 while in the care of Estella's sister. (13 RT at 2552-53.) 10. The State manufactured false medical evidence that Consuelo had been suffocated. a. Dr. John Bentson falsely testified that the bilateral watershed occipital parietal brain infarcts he observed in a CT scan performed on Consuelo on November 2 1, 199 1, were caused by suffocation and not caused by trauma to the head. (12 RT at 2406.) By his own testimony Dr. Bentson admitted that he did not look at any of Consuelo's medical history or medical records; he relied solely on the CT scan. (12 RT at 2414.) Had he reviewed Consuelo's medical records he would have found that all of the brain injuries documented in Consuelo's medical records after November 17, 199 1, were secondary to the loss of oxygenated blood supply resulting from the injuries to the organs in her abdomen. (See Exh. 84 at 55 17 [Declaration of Aaron Gleckman, M.D.].) b. He testified that the CT scan showed an abnormality in the parietal occipital area of the brain. (12 RT at 2405-06; see Exh. 3 at 1059 [UCLA Radiological Sciences Diagnostic Report of Dr. John Bentson].) Dr. Bentson testified that this particular infarct is due to a drop in the amount of oxygenated blood that goes to the brain, which can be a result of suffocation. (12 RT at 2406.) Brain infarcts are associated with blood loss and the focal occlusion of a blood vessel; brain infarcts are not caused by suffocation or smothering. (See Exh. 81 at 5487 [Declaration of Vincent J.M. Di Maio, M.D.1.) The large areas of brain infarcts were most likely secondary to hypotension, hypoxia and cardiac arrest causing loss of oxygenated blood supply to the brain. The infarcts were not likely caused by suffocation prior to her arrival at the hospital because she arrived at DRMC with a relatively normal Glascow Coma Scale somewhere between 11 and 14. This would not have been the case had her brain already been infracted. (See Exh. 78 at 5459 [Declaration of Rick Harrison, M.D.].) c. Dr. Bentson opined that it would take several minutes in order to get that type of infarct with suffocation; one doesn't get brain damage until six, seven, eight minutes go by. (12 RT at 2412.) In fact, a child who is smothered will develop bradycardia, or a slowness of the heartbeat, in approximately 30 seconds, and a flat electroencephalogram ("EEG") and cessation of respiration in 90 seconds. (See Exh. 81 at 5487 [Declaration of Vincent J.M. Di Maio, M.D.].) Respiration will not return spontaneously if the smothering is stopped; the child will die unless immediately resuscitated. (See Exh. 8 1 at 5487 [Declaration of Declaration of Vincent J.M. Di Maio, M.D.].) 11. The State presented false testimony that Consuelo Verdugo suffered multiple head traumas. a. Dr. Bentson falsely testified that the scalp edema, swelling of the scalp, seen mostly on both sides in the back of the head, seemed to be from different traumas. (12 RT at 2417.) Had Dr. Bentson reviewed Consuelo's medical history of hospitalization after November 17, 199 1, he would have found that there is no evidence to support a finding of blunt head trauma resulting in brain injury. Dr. Dibdin's autopsy report described a blunt force injury to the head as an area of acute contusion measuring half an inch in the left anterior scalp. (See Exh. 8 at 3557 [Autopsy Protocol].) A blow to the head that can cause brain damage will typically cause bleeding in the subgaleal area, located between the scalp and the skull, and may also cause the skull to fracture. (See Exh. 84 at 5523 [Declaration of Aaron Gleckman, M.D.].) The contusion of the scalp is not related to the cause of death and does not support a finding of major head injury given the lack of subgaleal hemorrhage. (See id. at 5523.) 12. The State presented false testimony that Consuelo Verdugo's head injuries were caused by shaken baby syndrome. a. Dr. Dibdin falsely testified that the pattern of injuries Consuelo had, namely the subdural hematoma and rib fractures, were indicative of shaken baby syndrome. (1 1 RT at 2135-36.) In his autopsy report Dr. Dibdin notes that upon opening the cranial cavity, there is a fresh subdural hemorrhage of approximately 5 ml on the left in the occipital and posterior parietal regions. (See Exh. 8 at 3558 [Autopsy Protocol].) Dr. Dibdin opined in his autopsy report that multiple rib fractures together with acute subdural hemorrhage and generalized swelling of the brain suggested that the child was gripped around the chest during the course of the assault and shaken. (See id. at 3 56 1 .) b. Dr. Dibdin's opinion regarding Consuelo's pattern of injuries as indicative of Shaken Baby Syndrome is false. Shaken Baby Syndrome occurs when a child is violently shaken back and forth resulting in rapid repeated severe acceleration and deceleration of the head. (See Exh. 84 at 55 18 [Declaration of Aaron Gleckman, M.D.].) The shaking typically causes extensive bilateral retinal hemorrhages, subdural hematomas and cerebral edema. (See Exh. 84 at 5518 [Declaration of Aaron Gleckrnan, M.D.]; Exh. 78 at 5458 [Declaration of Rick Harrison, M.D.].) There were no noted retinal hemorrhages in the autopsy report. (See Exh. 8 at 3555-61 [Autopsy Protocol].) The first notation of any type of retinal hemorrhage was made in Dr. Kevin Miller's ophthalmology report dated November 2 1, 1991, four days after Consuelo was admitted. Dr. Miller noted an intraretinal hemorrhage just outside the inferotemporal arcade of the right eye which was approximately 3 1 4 ~ ~ of a disk diameter in size; there was no preretinal hemorrhage overlying this. (See Exh. 3 at 991 [Ophthalmology Report of Dr. Kevin Miller].) The preretinal hemorrhage observed by Dr. Miller is not the type typically found in cases of Shaken Baby Syndrome. Shaken babies typically display a pattern of extensive multiple bilateral retinal hemorrhages distributed throughout the retina to the periphery of the eye. (See Exh. 84 at 5519 [Declaration of Aaron Gleckrnan, M.D.].) The minimal retinal damage observed in the right eye with no damage to the left eye is inconsistent with the extensive retinal injury usually present in cases of Shaken Baby Syndrome. (See id. at 5520.) 13. The prosecution presented false testimony that Consuelo was in good health prior to November 17, 1991, and failed to disclose information that indicated possible causes of her injuries other than abuse by petitioner. a. At trial the prosecutor informed the jury that Consuelo was a "completely normal" twenty-one-month-old who was harmed by petitioner on November 17, 1991. (10 RT 2024.) He argued that the injuries inflicted by petitioner that night were connected to old injuries that were also inflicted by petitioner. b. The prosecutor was aware of numerous statements by Consuelo's caretakers making clear that she had significant, chronic health problems prior to November 17, 199 1 which had no connection whatsoever to petitioner. (1) Delia Salinas, Estella Medina's sister, told district attorney investigator Ray Lopez on May 14, 1992, that Consuelo was a "smart and lovable child who was clumsy and fell down a lot. She was an active child who bruised herself often, mostly on her legs." (Exh. 4 at 205 1 [District Attorney Case Report, May 21, 19921.) (2) Diana Alejandro, Estella Medina's other sister, also told Lopez on May 1 1, 1992, that Consuelo "was always rashed [i.e. she always had a rash] when she was living down ... on 1313 Albany." (Exh. 4 at 2254 [Transcript of Interview with Diana Alejandro, May 1 1, 19921 .) Diana explained that Consuelo always had a rash because her diaper was not changed at night by members of the Alejandro family. (Exh. 4 at 2287 [Transcript of Interview with Diana Alejandro, May 1 1, 19921 .) (3) Estella Medina, Consuelo's mother, told the Delano Police and district attorney investigator Bresson that Consuelo was "always falling down, she's always getting into things. Even at my mom's house, you know, she's always bumping, she falls." (Exh. 4 at 2209 [Transcript of Interview with Estella Medina, July 9, 19921.) Estella also told district attorney investigator Lopez that "ever since she was, you know, a baby she, she got diaper rash. She would always have diaper rash. I would always have Desitin, you know, to put on her or something. One time I had to take her to the doctor because she got a real bad rash." (Exh. 4 at 2422 [Transcript of Interview with Estella Medina, July 9, 19921.) (4) None of the above statements was introduced at trial. c. Relying on this false, contrived foundation, the prosecution argued that Consuelo's injuries on November 17 were not typical of her physical limitations and chronic illness, but rather were the culmination of petitioner's violent tendencies that began when petitioner met Consuelo. During his questioning of Estella, the prosecutor implied that Consuelo began to get injuries only after petitioner came to live with Estella and her daughters, thereby implying that petitioner had been the cause of all of Consuelo's past injuries and illnesses: Carbone: Mrs. Medina, isn't it true that you knew what was happening with this man but you weren't reporting it? (RT 2587-88.) 14. Petitioner was, has been, and continues to be denied access unlawfully to exculpatory material evidence proving that no semen was ever found on or in Consuelo. a. Prevailing practice in Kern County in 1991 was for law enforcement to obtain samples of fluids from suspected sexual assault victims using what is termed to be a rape kit. b. Remarkably, although Consuelo was hospitalized within minutes of the alleged rape and sodomy and examined by the County's sex abuse expert, the prosecution asserted at trial that no such sampling was performed. Dr. Diamond testified that he did not perform a rape kit to test for the presence of semen in Consuelo's vagina and rectum because the blood oozing from them would have washed away any traces of semen that had been present. (10 RT at 2083.) c. Given the prevalence of the practice and the immediate determination of law enforcement that Consuelo had been the victim of a sexual assault, the prosecution's statements are incredible. Moreover, in light of the prosecution's callous disregard for fundamental fairness with respect to withholding Brady and Giglio material, manufacturing testimony, and presenting false evidence, the prosecution's statement is not supportable. d. On this record, petitioner alleges that sufficient facts exist to believe that the prosecution did obtain a rape kit and withheld the results from the defense because they were exculpatory. In the alternative, petitioner alleges that the prosecution presented false testimony to justify the absence of a rape kit, which was not obtained because the prosecution knew the kit would produce exculpatory evidence. 15. The prosecution presented the false testimony of William Esmay of the California Highway Patrol that Consuelo could not have been the victim of a pedestrian automobile accident. a. Officer Esmay testified that because her clothing did not have evidence of contact with the ground, such as grass stains, Consuelo could not have been hit by a car. (15 RT at 2932.) In fact, Kern County Criminalist Jeanne Spencer identified plant material on Consuelo's sweatshirt. (Exh. 7 at 3506 [General Stereo Exam of Child's Clothing, Jeanne Spencer].) This was not disclosed to the defense at trial. b. According to Officer Esmay's testimony, Consuelo could not have been hit by a car because he had never heard of injuries to the genitalia and anus resulting from a pedestrian automobile accident. (15 RT at 2938-39.) However, medical records and the statements of DRMC personnel indicated that Consuelo did not have genital and anal injuries prior to arrival at in the hospital. c. This false testimony affected the outcome of the trial. Had the prosecution not presented this testimony, the jury would have considered an automobile accident to be an alternative and equally reasonable explanation for Consuelo's injuries. There is a reasonable likelihood the validity of this alternative would have changed the verdict, as the jury would have had to acquit petitioner. B. CLAIM 2: THE STATE PREJUDICIALLY COERCED THE TESTIMONY OF ESTELLA MEDINA AND CRISTINA MEDINA.~ Petitioner's conviction and sentence of death were unlawful and rendered in violation of his rights to a fundamentally fair and reliable determination of guilt and penalty, to a trial free of materially false and misleading evidence, to confront and cross-examine witnesses, to a trial by a fair and impartial jury, to a conviction beyond a reasonable doubt, to effective assistance of counsel, to the disclosure of all materially favorable evidence including impeachment evidence, and to a determination of punishment that is not based on passion, prejudice or materially false information, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 1, 7, 9, 12, 13, 14, 15, 16, 17, 24, 27 and 28 of the California Constitution and state law, when the prosecution manufactured and suggested prejudicial and false testimony to Cristina Medina and Estella Medina, created an atmosphere designed to coerce Cristina and Estella into adopting the prosecution's theory of the case, withheld information about the statements made by, and coercion applied to, these witnesses, and presented their materially false, misleading, and prejudicial statements at trial. Throughout the prosecution of petitioner, law enforcement and the district attorney's office sought to alter, shape, and manipulate the testimony of two critical witnesses, Cristina Medina, Consuelo Verdugo's sister, who was nine years old at the time of the incident, and her mother Estella Medina so as to inculpate petitioner. Immediately after Consuelo's death, law enforcement personnel interviewed both witnesses in isolation. ' This Claim qualifies as a'category 2 claim. Estella repeatedly stated her conviction that petitioner had not harmed Consuelo. At this point, investigating officers immediately removed Cristina from Estella's care despite no evidence that Cristina faced any harm. This tactic - depriving Estella and Cristina of each other's support - was designed to punish Estella for her refusal to adopt the prosecution's theory as her own and to isolate Cristina to permit law enforcement officials to shape her testimony without her mother's protection. As to Estella, the prosecution repeatedly told her that if she continued to state her belief that petitioner was innocent, she would not regain custody of her daughter. With respect to Cristina, the prosecution used family members and repeated coercive and suggestive interviews to modify Cristina's statements and coerce her false trial testimony. As a result of the manipulation, coercion, and deprivation producing conditions, both witnesses - at the direction of the prosecution - provided materially false testimony. In support of this claim, petitioner alleges the following facts, in addition to those to be presented after full investigation, discovery, access to this Court's subpoena power and an evidentiary hearing: 1. Law enforcement agents, the district attorney's office, and Department of Human Services caseworkers coerced the testimony of Estella Medina by removing her daughter from her home and informing her that Cristina would remain out of her custody as long as she affirmed petitioner's innocence and refused to testifj against him. After orchestrating the removal, the prosecution lied to the court and petitioner about its involvement in Cristina's dependency proceeding. Acquiescing to the prosecution's threats, Estella testified falsely at trial that she feared and mistrusted petitioner as he cared for her children. a. By November 18, 1991, police officers investigating Consuelo Verdugo's death formulated the theory that petitioner had raped and sodomized her. (Exh. 4 at 2331 [Delano Police Department Supplemental Report] .) b. The day after Consuelo died, on November 26, 1991, Detective A1 Valdez of the Delano Police Department and District Attorney's Investigator Gregg Bresson interviewed Estella Medina. They sought Estella's corroboration of their theory that petitioner had sexually abused Consuelo prior to her death and directly caused her death. Instead, Estella told police that she did not know what had happened to her daughter, Consuelo, but that she did not believe petitioner had harmed her. Estella refused to testi@ in court that petitioner had in any way hurt her child, because she did not believe he ever had: She's my baby. I never saw him do anything to her. Never .... I would never protect him in that--, in that situation, I would never protect him. But I never, I swear to God, I never saw him do anything to my daughters like that. He loved her, he loved my baby. I don't, that's why I can't get it through my head, if he did it, why he did it. I'm not saying he did because I wasn't there to see it .... And I'm not gonna say in court either that he did it. (Exh. 4 at 2214- 15 [Transcript of Interview of Estella Medina].) c. Shortly thereafter, in response to Estella's statements and to punish her for her refusal to testify that'petitioner had harmed her daughter, Officer Valdez and Investigator Bresson decided to remove Cristina from her custody without consulting Child Protective Services. Valdez and Bresson made this decision alone, failing to consult any social worker, child protective services worker, Department of Health Services caseworker, or psychologist. They told Estella that the decision was "just one we [Valdez and Bresson] are making, it's a tough one and until our investigation is concluded, we will have Cristina in a protective custody situation." (Exh. 4 at 2225 [Transcript of Interview of Estella Medina].) District Attorney Investigator Lopez later affirmed law enforcement's sole responsibility for removing Cristina. (Exh. 61 at 5202 [Transcript of Interview of Nancy Hayes, September 23, 19921 ("Well you know ... the Delano Police detectives had her removed from Estella's custody when this first happened.. . .").) d. At the conclusion of Estella's interview, just days before Thanksgiving, Detective Valdez and Investigator Bresson, accompanied by Cristina's aunt Diana Alejandro, took Cristina to Jamison House, a facility for children in the county's care. (Exh. 4 at 1917- 18 [DA Case Report].) That was the last time Cristina was allowed to see anyone in her family, including her mother, until January 1992. Estella was prohibited from seeing her child for Thanksgiving or Christmas that year. (Exh. 66 at 5378-80 [Declaration of Estella Alejandro Medina].) e. At the preliminary hearing, on December 12, 1991, District Attorney Robert Carbone falsely represented to the court and petitioner that his office had not orchestrated Cristina's removal. He stated that Cristina's removal "has absolutely nothing to do with my office." (1 CT at 143-45.) f. Law enforcement agents and district attorney investigators told Estella, at the time Cristina was removed and thereafter, that Cristina was taken from her because she did not accuse petitioner of harming Consuelo. (Exh. 66 at 5379-80 [Declaration of Estella Medina Alejandro] .) g. State and law enforcement agents placed Cristina with cousins Darlene and Reynaldo Salinas, despite knowing that the placement jeopardized Cristina's welfare. The Department of Health ServicesIChild Protective Services ("DHSICPS") workers, and the prosecution, knew they both had extensive criminal histories that included possession, transport, and sale of PCP; possession of marijuana; theft; and receiving stolen property. (See, e.g., Exh. 9 at 3766 [Juvenile Records].) Despite this knowledge, the district attorney's office worked with DHSICPS to place Cristina in their custody. (See id. at 3766, 3687, 3690.) No evidence of Darlene's and Reynaldo's criminal history was disclosed to petitioner. h. On April 16, 1992, the State returned Cristina to Estella's home. i. Estella's niece, Virginia (Vicki) Salinas Alejandro; Estella's sister, Diana Alejandro; and Estella's nephew's wife, Darlene Salinas, investigated Estella at the direction of District Attorney Investigator Ray Lopez and continually provided Lopez with information about Estella's life, actions, and whereabouts. (Exh. 4 at 2047-53 [Delano Police Interview with Virginia Salinas, May 21, 19921; Exh. 4 at 2071-73 [Delano Police Interview with Virginia Salinas, July 1, 19921; Exh. 4 at 2092-93 [Delano Police Interview with Virginia Salinas, July 7, 19921; Exh. 4 at 2084-89 [District Attorney Case Report, Interview with Darlene Salinas, June 10, 19921; Exh. 57 [Transcript of Interview of Darlene Salinas by District Attorney Investigator Ray Lopez, June 10, 19921.) j. On July 9, 1992, the district attorney's office again interviewed Estella regarding this case. District Attorney Investigator Lopez once more asked Estella if petitioner had ever mistreated her daughters, showed signs of molesting or abusing them, or did anything to them that bothered or upset her. Estella affirmed that petitioner never mistreated her girls, that there was no indication whatsoever that they were molested, and that he never did anything to the girls that bothered her or upset her. Despite Estella's repeated statements, Investigator Lopez repeatedly attempted to change her answer. (Exh. 4 at 2419-20, 2478, 2481 [Interview of Estella Medina, July 9, 19921.) She stated that no one, including her sister who babysat the girls regularly, told her that they had seen signs of molestation, and that neither she, Cristina, nor her sister had ever seen discharge, tearing, or bleeding when changing Consuelo's diaper. (Id. at 2421-25.) Estella further stated that she did not see any discharge, blood, or injury to Consuelo's genitalia or anus the night she went to the hospital. (Id. at 2469-71 .) When asked again whether she believed petitioner had abused her daughter and caused her death, she said she still did not believe that he did it. (Id. at 2485.) When asked if she suspected someone had hurt Consuelo when she broke her arm or when she hit her head, Estella said she did not; she told him that her sister had been with Consuelo when she hurt her arm and that she herself had seen Consuelo fall. (Id. at 2495-96.) Unsatisfied with Estella's steadfast protestations of petitioner's innocence, Lopez decided to remove Cristina immediately and for the second time from Estella's care. (Id. at 2303; Exh. 9 at 3698-70 [Juvenile Case Report]; Exh. 61 at 5201 [Transcript of Interview of Nancy Hayes, September 23, 19921 .) Prosecution investigators and Department of Human ServicesICPS caseworkers again told Estella that her daughter was removed because she failed to accuse petitioner of harming her daughter. (Exh. 4 at 2409-10 [Transcript of Interview with Estella Medina July 9, k. Throughout the pendency of petitioner's case, District Attorney Investigator Lopez interceded in Cristina's juvenile case so as to prevent the court from awarding Estella Medina custody and to preserve the coercive conditions of control inherent in Cristina's placement. (Exh. 9 at 3687-90 [Juvenile Records] .) 1. Estella learned through the repeated removal of her daughter from her home that her statements regarding petitioner's guilt or innocence, regardless of when or to whom they were made directly affected the juvenile court's determination of whether she obtained custody or visitation with Cristina. In light of repeated law enforcement statements, Estella finally realized that the only way she could obtain custody of Cristina was to attest to petitioner's guilt and demonstrate that she had tried to protect her daughters from petitioner. (Exh. 4 at 2409- 10, 24 1 1- 12 [Transcript of Interview with Estella Medina, July 9, 19921.) m. Estella succumbed to the coercion, and, as a result, when the district attorney asked her at trial about Cristina's statement that petitioner had taken Consuelo into their bedroom while he was babysitting, Estella testified that she "always told [petitioner] if anything - if you would injure my kids in any way, I would have you locked up." (13 RT at 2562.) Similarly, when the prosecutor asked if she told Cristina to lock the door when she went to bed and Estella was not home, but petitioner was there, Estella testified she told her daughter to close the door when petitioner was there. (13 RT at 2652.) These statements indicated her mistrust of petitioner's care of her children, and led the jury to conclude that Estella believed petitioner was guilty. Estella said nothing about her belief that petitioner was innocent. n. By threatening to take Cristina away permanently and by telling Estella they would prevent her from having custody of or contact with her child unless she accused petitioner, the prosecution knowingly and substantially interfered with Estella's testimony, intentionally encouraged Estella to provide materially false testimony, and knowingly elicited false testimony. o. Estella's false testimony was material to the prosecution's theory that petitioner was a child molester because her testimony suggested that his actions created unease and were suspect. With Estella's testimony that she distrusted petitioner, the prosecution was able to argue a motive - that petitioner was a child molester. Without it, the prosecution had no explanation as to why petitioner would commit such a crime. As a result of Estella's untrue testimony, the jury falsely believed that petitioner had in the past committed some act -- likely one of physical or sexual abuse -- that led Estella not to trust him with her daughters. If Estella's testimony had not been coerced, and she had testified in accordance with her interview statements, the jury would have believed that petitioner did not molest or abuse Consuelo Verdugo on November 17, 199 1, and would not have found him guilty or sentenced him to death. 2. Law enforcement agents, the district attorney's office, Department of Human Services caseworkers, and their agents coerced and manufactured false testimony of Cristina Medina by removing her from her home, isolating her from her mother and family, repeatedly questioning her about sex abuse after she stated that neither she nor her sister had been abused, and suggesting information to her during interviews. a. Detective A1 Valdez of the Delano Police Department first interviewed Cristina on November 18, 199 1. b. During the November 18, 1991 formal interview, Detectives Jeff Nacua and A1 Valdez used coercive and formulaic tactics designed to interrogate a suspect and ensure a confession. But, as Cristina was only nine years old and not a suspect, these tactics resulted only in eliciting false facts and unreliable statements. The detectives used such devious and inappropriate methods as accusing Cristina of lying and pressuring her to make specific statements by using suggestive and leading questions. (See, e.g., Exh. 89 [Declaration of James M. Wood, Ph.D.1.) Dr. James Wood, a leading expert and consultant to law enforcement agencies on developing appropriate techniques for eliciting reliable information from children, opines that this "is one of the worst interviews of a child I have ever encountered." (Id. at 5544.) (1) Cristina informed the officers that she believed petitioner was telling the truth. (Exh. 4. at 1818 [Interview with Cristina Medina, November 18, 199 11 .) In response, the officers told her that, "as police officers," they thought she was wrong and suggested that she did not even believe herself. They repeatedly asked the same question: whether she believed petitioner. Finally, Cristina said she did not know whether she believed him, and then ultimately said "No? No." (Id. at 1830.) Through these coercive and suggested tactics, the officers altered her recollections and beliefs. (See, e.g., Exh. 89 at 5545-55 [Declaration of James M. Wood, Ph.D.1.) (2) During the November 18, 1991 interview, Cristina said that she asked petitioner if she could play with her friend for fifteen minutes, and that she stayed out just about fifteen minutes on the evening of November 17, 1991, before petitioner came to get her. She said petitioner did not seem nervous when he came to get her to come home. (Exh. 4 at 1814, 1824 [Interview with Cristina Medina, November 18, 199 11.) (3) Cristina further stated in this interview that petitioner had never touched her; never touched her and told her not to say something about it; never touched her "where he shouldn't ... in the private parts;" and never tried to touch her. She said that she liked petitioner, that he bought her things, that he was nice to her, and that she was not scared of him. She also stated that he had never touched her sister. (Exh. 4 at 1820-21 [Interview with Cristina Medina, November 1 8, 199 11 .) (4) At the end of this interview, the officers told Cristina to "think about [what really happened]," to think about her answers and think about the truth, because they would be coming back to question her again to find out what happened "for sure." (Exh. 4 at p. 1846 [Interview with Cristina Medina, November 18, 19911.) They conveyed to Cristina that she had given incorrect answers in failing to implicate petitioner, and that they would give her a second chance to get the "correct" answers in the next interview. c. Cristina was removed from her home on November 26, 1991, the day after her sister died, because her mother told the police and the district attorney's office that she did not believe petitioner was guilty of hurting her daughter or causing her death. (Exh. 4 at 1920 [Kern County District Attorney Case Report, dated December 3, 1991, by Gregg Bresson].) At the preliminary hearing, on December 12, 1991, District Attorney Robert Carbone untruthfully disavowed his office's involvement in Cristina's removal. (CT 143-45.) d. Cristina lived at Jamison House, a temporary center for children, for close to six weeks, until January 2, 1992. She spent Thanksgiving, Christmas, and New Years Eve alone at the Center. A child taken to Jamison rarely spent more than one week there, because according to Child Protective Services, it is important that a child be placed with a family or foster home as soon as possible. On January 2, 1992, Cristina was housed temporarily with her cousin, Darlene Salinas. (Exh. 9 at 3731 [Dispositional Report, CPS Records].) e. During Cristina's stay at Jamison, Department of Health Services caseworkers repeatedly questioned her about the events leading up to petitioner's arrest. They encouraged her to talk about petitioner's abuse of herself and her sister. When Cristina denied suffering abuse and denied her sister suffering abuse -- even if the social worker believed Cristina was telling the truth -- the office policy was to continue questioning her about possible experiences of sex abuse. (Exh. 9 at 3703- 30 [Alice Thompson interviews, Dispositional Report, CPS Records].) f. On April 16, 1992, on the recommendation of Jane Canning, a caseworker for Child Protective Services, Cristina was returned to the custody of her mother. (Exhibit 9 at 3703-30 [Supplemental Report of Social Service Worker Jane Canning, dated April 6, 19921.) g. The prosecution withheld evidence that Vicki Salinas and others acted as state agents, obtaining information and coercing testimony of witnesses. Specifically, Lopez asked Vicki to help him change Cristina's mind about petitioner and incriminate him. (Exh. 4 at 1674 [Transcript of Interview with Vicki Salinas by Ray Lopez].) h. Detective Ray Lopez attempted to interview Cristina at Vicki's house on May 14, 1992, while Vicki, Cristina's aunt Delia, and Cristina's uncle Javier were present. Lopez spent half an hour with Cristina, but stated he was unable to interview her. He did not report on what was discussed during that contact. (Exh. 4 at 2074-82 [Kern County District Attorney Case Report, dated July 2, 19921.) 1. On May 22, 1992, afier spending the day with Darlene and Vicki Salinas, Cristina suddenly stated to her mother that she remembered a time that petitioner took Consuelo into his room for the night, (Exh. 4 at 1869-74 [Transcript of Interview with Cristina Medina, June 12, 19921; Exh. 4 at 2493-98 [Transcript of Interview with Estella Medina, July 9, 19921 .) j. On June 1 1, 1992, Vicki Salinas telephoned Lopez and told him that Cristina had "changed her mind and was now willing to talk to [Lopez] about this case" at Vicki's home. Vicki scheduled the interview for a day and time when Estella would not be present. (Exh. 4 at 2074-82 [Kern County District Attorney Case Report, dated July 2, 19921.) k. On June 12, 1992, Lopez interviewed Cristina at Vicki's house, and tape-recorded this interview. When Lopez asked Cristina if she knew what rape was, Vicki reminded her of a recent conversation Cristina had with Vicki regarding rape. Cristina then described rape for Investigator Lopez. Cristina repeated her statements that petitioner had taken Consuelo into his room one night and locked the door. In the morning, Cristina said, Consuelo did not look like anything had happened to her. (Exh. 4 at 1871 [Transcript of Interview with Cristina Medina, June 12, 1992; Exh. 4 at 2076 [Kern County District Attorney Case Report, dated July 2, 19921 .) 1. At the recorded interview, after Cristina had been removed from her home and away from her mother, she said that she did not believe petitioner. (Exh. 4 at 1866 [Interview with Cristina Medina, June 12, 19921.) Cristina's change in her opinion was the result of the officers' coercive and suggestive interview techniques. (See, e.g., Exh. 89 at 5549 [Declaration of James M. Wood, Ph.D.1.) m. Lopez coerced Cristina into stating that this incident occurred in September or October 1991. Cristina told Lopez four times during the interview that she did not remember when the incident occurred. (Exh. 4 at 1872-73, 1882 [Transcript of Interview with Cristina Medina, June 12, 19921.) She also said it happened a "long time" before Consuelo broke her arm. (Id. at 1873.) Lopez then asked Cristina four times whether the incident occurred near Halloween, or in the months of September and October. (Id. at 1872-74, 1882.) He finally asked her if it happened before November, the month in which her sister died. She agreed that it did. She also stated that school was in session at the time, and that she thought it was a weekend. After that, Lopez imposed a conclusion: "So we boiled it down as sometime between September and October," and Cristina agreed. (Id. at 1882.) Thus, Cristina's belief that this incident happened, and that it happened in September and October, were the result of coercion and suggestive questioning by the police officers and district attorney. (Exh. 89 at 5553 [Declaration of James M. Wood, Ph.D.1.) n. On July 9, 1992, Lopez questioned Estella about Cristina's statements. Estella explained that she and petitioner often took the children into their room when they were scared or could not sleep, or when Consuelo was crying or sick. She stated that therefore petitioner's actions did not worry her, or seem out of the ordinary. (Exh. 4 at 2475- 2476 [Interview of Estella Medina, July 9, 19921.) Estella believed that Cristina must have been misled to believe that these actions, which were perfectly normal in her house, were abnormal and dangerous. (Exh. 66 at 5382-83 [Declaration of Estella Alejandro Medina].) o. Cristina repeated her statements when she testified at trial. She testified that the "first night" petitioner was alone with her and her sister, he would not let the children sleep together. He took Consuelo into his bedroom for the night. When Cristina got up to go to the bathroom, she noted that the door to the bedroom where petitioner and her mother slept was locked. The next morning, Consuelo was "okay." (1 1 RT at 2 187-95.) She testified that this occurred before Consuelo broke her arm on September 24, 199 1. (1 1 RT at 2200.) p. The district attorney's office substantially interfered with, coerced, and changed Cristina Medina's accurate and exculpatory potential testimony to false and inculpatory testimony. Lopez specifically coerced Cristina into setting the date as sometime in September or October in order to manufacture a link between petitioner and the prior injuries found on Consuelo. (See, e.g., Exh. 89 at 555 1, 5553-4 [Declaration of James M. Wood, Ph.D.1.) q. Cristina's statements at trial materially affected the verdict and prejudiced petitioner. The prosecution used Cristina's story to support its theory that Consuelo died from injuries that were part of an ongoing pattern of abuse that began when petitioner began babysitting for Estella's daughters. The prosecutor relied upon Cristina's statement in his closing argument when he urged the jury to find that "not only does it show us that the child was previously abused, both physically and sexually, but it shows that it happened over a period of time." (18 RT at 3660.) If Cristina's false and unreliable testimony had not been introduced, the jury would not have believed petitioner was the cause of Consuelo's ongoing injuries, or caused her injuries on November 17, 199 1. 3. The State prejudicially interfered with defense's access to prosecution witnesses by threatening Estella with losing custody of her daughter and telling Cristina not to speak to the defense. (Exh. 106 at 5896 [Declaration of Jon B. Purcell] ["The instructions that [Cristina] not talk to the defense came directly from the District Attorney's Office."].) 4. The State withheld from the defense Cristina Medina's Department of Human Services and Child Protective Services (DHSICPS) and juvenile court records that demonstrated the coordinated and concerted efforts of DHSICPS workers and law enforcement involved in petitioner's case to keep Cristina Medina from her mother in order to coerce the testimony of these two witnesses. a. The State had in its possession communications between the district attorney's office, the police department, DHSICPS, and the juvenile court demonstrating that the agencies coordinated their efforts to ensure that Cristina remained out of Estella's custody and testified against petitioner. b. Material documents unlawfblly withheld from petitioner included, but are not limited to the following: (1) a list of persons who obtained the police reports in petitioner's case, which stated juvenile court worker Alice Thompson obtained petitioner's police reports "to determine if sister should be released or held" (Exh. 9 at 3761-75 [Juvenile Records]); (2) the juvenile court minute orders which listed District Attorney Investigator Ray Lopez as a witness in the juvenile case (Exh. 9 at 3686-88 [Juvenile Records]); (3) documentation of phone contacts between Lopez and Cristina's caseworkers David Chenault (Exh. 4 at 1664-76 [Recording of Telephone Call between Ray Lopez and Virginia Salinas]), Jennifer Sookne (Exh. 6 at 2941-42 [DA Records]), and Jane Canning (Exh. 6 at 2934 [DA Records]); (4) documentation of interviews of Cristina, and of Cristina's family members, conducted by DHSICPS workers (Exh. 9 at 3761-75 [Juvenile Records]); (5) documentation that Cristina was receiving counseling at Henrietta Weill Memorial Center and Tulare Youth Services that showed she was having trouble remembering important aspects of the event surrounding her sister's death (Exh. 9 at 3628 [Juvenile Records, Letter from Terry McCauley]); ( 6 ) and a juvenile court report that indicated Cristina had received a sex abuse exam from Dr. Jess Diamond before the preliminary hearing in petitioner's case that demonstrated she had not been sexually abused. (Exh. 9 at 3703-30 [Juvenile Records].) c. The withheld documents contained material information necessary for the defense to impeach Cristina's and Estella's false statements and to demonstrate the state misconduct in coercing their false testimony. ( I ) The documents demonstrated the coordinated strategy of the district attorney's office, police department, and DHSICPS to prevent Estella from obtaining custody of Cristina so that she would testifL against petitioner, and to isolate Cristina from her mother and use coercive and suggestive questioning tactics to modify her beliefs and statements about petitioner so that she would incriminate him at trial. (2) Documentation of interviews of Cristina, and of Cristina's family members, conducted by DHSICPS workers contained statements made by Cristina's family that could have been used to impeach their statements at trial. (3) Documentation that Cristina was receiving counseling at Tulare Youth Services that showed she was having trouble remembering important aspects of the event surrounding her sister's death contained statements that would have been used to impeach Cristina's testimony at trial. (4) The juvenile court report that indicated Cristina had received a sex abuse exam from Dr. Jess Diamond before the preliminary hearing in petitioner's case that demonstrated she had not been sexually abused undermined the prosecution's theory and trial argument that petitioner had abused and molested Cristina Medina as well as her sister Consuelo. 5. The State unlawfully failed to disclose to the defense material CPS records that demonstrated Cristina Medina's memory regarding the events of the case was poor, and then vouched for Cristina's credibility at trial. a. A letter in the prosecution's file from Terry McCauley, Cristina's counselor in March 1993, states that Cristina "has trouble recalling important aspects" of the events of November 17, 199 1, and "persistently avoids her thoughts and feelings about it." (Exh. 9 at 3628-29 [Juvenile Records, Letter from Terry McCauley].) Neither this letter nor its contents was disclosed to the defense. b. Counselor McCauley's letter was material to petitioner's defense. It demonstrated that Cristina's memory regarding the facts of November 17, 1991 was not reliable, and it could have been used to impeach Cristina's statements regarding the details of that evening's events such as how much time she was allowed to play, whether petitioner had been nervous that night, whether petitioner stated that he found Consuelo outside or inside, and what petitioner told Cristina he believed happened to Consuelo that evening. c. Knowing that Cristina was having trouble recalling important aspects of the events of November 17, 199 1, the prosecution falsely argued that she was more credible than petitioner and vouched for her version of events. The prosecution opined during closing argument that where petitioner's and Cristina's statements conflicted, Cristina's statements were more credible, because they "have been consistent throughout" and because an eleven year old "has no reason to lie." (15 RT at 3590.) He also stated that "Anytime we corroborate anything Christine (sic) tells us, it comes out true." (1 8 RT at 3656.) (1) Not only were these statements false in light of Counselor McCauley's letter, but also they falsely described Cristina's statements as consistent. In fact, Cristina's interview statements, preliminary hearing statements, and trial testimony conflicted in significant respects, such as what she was doing that night before she left the house; where and when petitioner told Cristina what he thought happened to Consuelo; whether petitioner was nervous when he came to get her that night; whether she believed petitioner; how she knew what rape was; and whether she knew petitioner was in jail at the time he telephoned her home in May 1992. (See, e.g., Exh. 89 at 5551, 5553-55 [Declaration of James M. Wood, Ph.D.1.) 6. Kern County law enforcement and the prosecutor's office have a history of using DHSICPS to violate the constitutional rights of criminal defendants, manufacture false evidence, and coerce testimony. a. Beginning in 1982, and continuing into the 1990s, Kern County prosecutors and DHSICPS workers investigated and prosecuted dozens of molestation cases based on incredible, and often disprovable, allegations of sex abuse, rape, sodomy, and ritual abuse. The Kern County District Attorney's Office obtained over three dozen convictions in these molestation cases by: (1) withholding evidence of sex abuse exams in which no evidence of abuse was found or using false medical evidence (Jeffrey B. Modahl v. County of Kern (Super. Ct. Kern County, 1999, No. 99-6463); People v. Kniffen, et al. (West Kern Muni. Ct. Kern County, 1982, Nos. 33610, 33614, 33624); Larry McCuan, et al. v. County of Kern, et al. (Super. Ct. Kern County, 1989, No. 194695); People v. Pitts (1990) 223 Cal. App. 3d 606 (1990)); (2) using coercive interviewing techniques that involved removing children from their homes such as communicating to the children that they could not return home until they incriminated individuals in their molestation (Modahl, supra, No. 99- 6463; Kniffen, supra, Nos. 33610, 33614, 33624; McCuan, supra,, No. 194695; Pitts, supra, 223 Cal. App. 3d 606; People v. Stoll (1989) 49 Cal.3d 1136; Hazel Wong, et al. v. County of Kern (Super. Ct. Kern County, 1986, No. 195381); Betty Palko et al. v. County of Kern, et al. (Super. Ct. Kern County, 1986, No. 194286); (3) manufacturing statements of abuse by suggesting to children that they were abused and masking this in reports (Modahl, supra, No. 99-6463; Kniffen, supra, Nos. 33610, 33614, 33624; McCuan, supra, No. 194695; Pitts, supra, 223 Cal. App. 3d 606; Stoll, supra, 49 Cal.3d 1136; Wong, supra, No. 195381) (4) withholding audiotapes and transcripts of interviews in which children stated they had not been abused (Modahl, supra, No. 99-6463; Kniffen, supra, Nos. 33610, 336 14, 33624; McCuan, supra,, No. 194695); and (5) refusing to allow sex abuse exams of alleged victims when they knew these exams would produce exculpatory evidence (Pitts, supra, 223 Cal. App. 3d 606; Michael J. Nokes, et al. v. County of Kern, et al. (Super. Ct. Kern County, 1988, No. 203 13). As a result, of the forty convictions obtained as of 1998, only six were upheld. One of these six remains on appeal. b. The prosecution of alleged child molesters in Kern County was so replete with gross prosecutorial misconduct that the Attorney General's office stepped in to investigate child abuse prosecutions in the county. (See John Van de Kamp, California Attorney General, "Report on the Kern County Child Abuse Investigation," September 1986, and supplementary reports and data.) A Grand Jury Investigation was also conducted. (See Final Report of the 1985- 1986 Kern County Grand Jury, Carleen A. Radanovich, foreman, released July 2, 1986; see also Edward Humes, Mean Justice (1999).) The report condemned a "presumption of guilt" applied by officers in the district attorney's office, DHSICPS agencies, and police and sheriffs agencies in their pursuit of molestation suspects. It found that, instead of relying upon legally acceptable evidence, investigators were removing children from homes, denying family visitations, and arresting parents based on nothing more than "gut feelings," even where medical evidence demonstrated that alleged victims had not been abused. 7. The unconstitutional coercion of false statements from two key witnesses, Consuelo's mother Estella and her sister Cristina, deprived petitioner of a fundamentally fair and reliable determination of guilt and penalty. The defense was unprepared to challenge this misconduct due to the numerous documents withheld by the prosecution in its attempt to cover up its use of coercion with the two most important witnesses in its case. These coercive tactics represent customary techniques used for years in suspected molestation cases in Kern County, techniques that have been repeatedly exposed and discredited. These errors had a substantial and injurious effect or influence on the jury's determination of the verdicts at both the guilt and penalty phase. C. CLAIM 3: THE STATE PRESENTED FALSE TESTIMONY REGARDING THE FACTS THAT OCCURRED ON NOVEMBER 17, 1991.' The convictions and sentence of death were rendered in violation of petitioner's rights to a fair, reliable, rational, nonarbitrary and accurate determination of guilt and penalty, to a fair trial free from false and misleading evidence, to an opportunity to confront and refute adverse evidence, to the disclosure of all material exculpatory evidence, and to the effective assistance of counsel as guaranteed by the Fifih, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 7, 9, 12, 13, 14, 15, 16, 17, 24, 27 and 28 of the California Constitution and state law because the prosecution introduced, and trial counsel unreasonably and prejudicially failed to exclude or refute, false and misleading testimony about the timing of the events on November 17, 199 1, alleged misstatements by petitioner, and petitioner's demeanor. In support of this claim, petitioner alleges the following facts, among others to be presented after full discovery, investigation, adequate funding, access to this Court's subpoena power, and an evidentiary hearing: I . The State manufactured inconsistent statements by confusing petitioner, using the hearsay statements of his mother, who did not testify, and by focusing on irrelevant information. a. The prosecution cross-examined petitioner using the statements of his mother, Maria Figueroa Benavides, without calling Maria as a witness, even though she was available. The prosecution asked This Claim qualifies as a Category 2 claim. 69 petitioner about a theory stated by his mother: "Didn't you tell your own mother that the child was hit by a car?" When petitioner could not remember, the prosecution asked him three or four more times. ( 1 5 RT at 3058.) The prosecution also asked petitioner if he had told his mother he went inside to get a towel before picking Consuelo up, and whether he told his mother that he called Estella. (Id. at 3062.) The prosecution asked petitioner whether he had obtained a towel before he picked Consuelo off the floor or after (Id. at 3061), and whether he picked the girl up and then called Estella himself. (Id. at 3062.) b. The prosecution later asked: "Did you tell your mother the truth about what happened?" (15 RT at 3060.) Implying to the jury that either petitioner lied to the court or to his mother. Indeed, he even asks petitioner whom he lied to. (Id.) Thus, the prosecution implied the falsity of petitioner's statements to the court with unverified information produced without an opportunity for cross-examination. c. All of these questions regarding irrelevant facts were asked without the presentation of the testimony of Maria, and without the prosecution even producing a statement given by her according to law enforcement records. This was even though a statement existed, and even though Maria was in the courtroom -- out in the hall -- assuming she was going to testifL and waiting to do so. There was no reason for the prosecution to not call Maria other than to allow them to use false statements that they attributed to her. d. The prosecution also manufactured false inconsistencies in petitioner's statements by asking petitioner questions regarding irrelevant facts. (I) The prosecution emphasized at trial the fact that petitioner had stated during a police interview that he only lost sight of Consuelo for "one minute." Detective Valdez testified for the prosecution confirming that petitioner said the child had been out of his sight for one minute. (14 RT at 275 1 .) The prosecution then asked petitioner repeatedly about the fact that petitioner stated to the police that he had lost sight of Consuelo for "one minute" and then looked for her and found her outside on the ground. Rather than recognize that the statement "one minute" may have been a reference to a short period of time, the prosecutor emphasized any statement that did not agree with the literal meaning of "one minute." He asked petitioner several times whether he told the police he had only left Consuelo alone for one minute, or left her out of his sight for a minute. (15 RT at 3055; 3057; 3063.) When petitioner expressed some doubt about the amount of time Consuelo was out of his sight, the prosecution asked "Are you changing your story today?" He asked the same question again, "Did you leave her for one minute . alone?" (15 RT at 3055.) When petitioner was unable to answer the prosecutor's questions with the specificity sought, the prosecutor asked: "Are you telling us that it was longer than a minute because you have heard the testimony of witnesses who say that these things could not have happened in one minute?" (1 5 RT at 3057.) (2) The prosecutor further asked petitioner, "you stated earlier that you stated some lies to Detective Valdez. Did that have anything to do with the hamburgers?" (1 5 RT at 3069.) He pointed out "you told Detective Valdez that the hamburgers were purchased on Saturday not Sunday." (15 RT at 3069.) "You say the only thing different from your statement to the police until today's testimony is the one minute time difference and whether or not you had Burger King on that night." (1 5 RT at 3069.) (3) When petitioner did not answer the prosecution's questions regarding these facts with the specificity he sought, the prosecutor asked petitioner: "Do you have select times when you tell the truth and when you do not tell the truth?" (15 RT at 3056.) Thus, the prosecution implied that petitioner was lying about what he said and did the day Consuelo was hurt simply because he stated he left Consuelo alone for longer than one minute, and because he did not remember on which day of the weekend he had visited Burger King. These minor irrelevant facts were unfairly used to imply that petitioner's statements at trial and during his interrogation regarding what he did the night of November 17, 199 1 and what happened to Consuelo were false. 2. The State manufactured false testimony regarding the timing of the incident. a. All percipient witnesses in their initial statements agreed that Cristina had asked to play for fifteen minutes on November 17, 1991. In an interview with law enforcement on November 18, 1991, Cristina stated that, after her mother left for work, she asked petitioner if she could go.to her friend's house for fifteen minutes. She said she was gone for no more than fifteen minutes when petitioner came to get her. Petitioner also stated in a law enforcement interview on November 18, 199 1, that Cristina had asked to go see her friend for fifteen minutes, and he said yes. Maribel Aguilar, Cristina's friend, stated in a November 18, 199 1 interview that Cristina went to her house at ten minutes to seven and left at 7:05 p.m. She said she kept checking her clock in her apartment so Cristina would not be late. b. At the preliminary hearing in December 1991, after Cristina had been interviewed by the Delano Police, and told that she was lying about the incident, Cristina again stated that she played only for fifteen minutes, but this time said that it was petitioner who limited the time she could play. She also said that ten minutes after she left, petitioner came around the building and called for her. She said she knew the time because they had been watching the clock. (1 CT at 149.) c. In a law enforcement interview with Ray Lopez on June 12, 1992, Cristina's statement began to change once more. This time she stated that when she asked petitioner if she could play, he said yes, but only for thirty minutes. Later in the interview she corrected this to fifteen minutes. d. At trial, the prosecutor led Cristina to state that she asked petitioner if she could go out and play, but he limited the time she could go out. He told her she could only play for thirty minutes. (1 1 RT at e. Cristina's statements at trial, as presented by the prosecution, were false. While she early on stated that she had asked to play for a specific amount of time, her statement at trial, pursuant to a leading question from the prosecution, was that petitioner limited her playtime. Her statement that she had a fifteen-minute allotment was replaced at trial with a thirty-minute limit. These false statements were knowingly presented by the prosecution, who interviewed Cristina on several occasions, and who subjected her to coercive and suggestive questioning until she gave answers that agreed with the prosecution's theory of the case. (See Exh. 89 at 5553-55 [Declaration of James M. Wood] [explaining how the suggestive and coercive questioning of Cristina led her to give inaccurate and unreliable statements].) Her statements were then cited by the prosecution at closing argument as the most credible account of what happened that night. (18 RT at 3589-90). The prosecution clearly was attempting to falsely extend the time petitioner was alone with Consuelo. f. A letter written by Terry McCauley, Cristina's counselor, stated that one month before trial Cristina was having trouble recalling "important aspects" of the events of November 17, 199 1. (Exh. 9 at 3628-29.) This letter was withheld from the defense. It demonstrated that Cristina's memory regarding the events of that evening was unreliable. Yet, the prosecution argued at trial that where Cristina's statements conflicted with petitioner's, Cristina's were the more reliable choice, because "her statements have been consistent throughout" and because an "eleven year old.. . . has no reason to lie." (1 8 RT at 3589-90.) g. As a result of these false statements, the jury believed petitioner had told Cristina to play for thirty minutes because he wanted to be alone with Consuelo in order to harm her, and because he believed he needed thirty minutes to do so. Thus, the prosecution manufactured, and the jury believed, this evidence of premeditation, where no such evidence existed, and where petitioner had not premeditated any harmhl acts. 3. The State presented false testimony regarding Vicente's uncaring demeanor at DRMC and KMC. a. The prosecutor presented the testimony of Dr. Jack Bloch, who stated that when he spoke to petitioner at KMC, petitioner was hunched forward looking toward the floor, exhibiting a lack of concern. (12 RT at 2465-66.) The prosecution presented the testimony of Anita Curran, that petitioner had acted "nonchalant" and exhibited lack of concern at DRMC. (14 RT at 2772-76.) b. The prosecution knew these statements were false. The prosecution knew that Supervising DRMC Nurse Faye Van Worth described petitioner as "very supportive" and concerned about Estella. (Exhibit 4 at 1752 [Interview with Faye Van Worth].) In addition, numerous witnesses interviewed by the prosecution who knew petitioner, including family members of Consuelo's, told the police that petitioner cared a great deal about Consuelo, and was a caring and attentive person with children and others in general. (See, e.g., Exh. 4 at 205 1 [Interview of Delia Salinas by Ray Lopez, May 14, 19921; Exh. 4 at 2049-50 [Interview of Javier Alejandro by Ray Lopez, May 14, 19921; Exh. 4 at 2198-99 [Interview of Estella Medina, November 26, 19911; Exh. 4 at 1820-21 [Interview of Cristina Medina, November 18, 19911.) As a consequence, the prosecution knew that the testimony of the medical personnel it presented regarding petitioner's demeanor was unreliable and unfairly designed to indicate petitioner was uncaring. Unlike witnesses they interviewed who knew petitioner well, the witnesses presented regarding his demeanor had only briefly been exposed to him, did not speak Spanish, nor have any knowledge of Mexican culture. Moreover, the prosecution knew that a flat affect is typical of person experiencing trauma, especially one such as petitioner who suffers from post-traumatic stress disorder and a history of experiencing traumatic events, including the death of his young daughter. c. The prosecution manufactured false contradictions in petitioner's testimony. Petitioner testified that he picked up Consuelo and took her to the sofa while he called Cristina. (15 RT at 3034.) The prosecution questioned him regarding whether he had instead put Consuelo on the bed. (Id.) Seconds later, the prosecution asked petitioner if he instead put her on the sofa. (Id. at 3037.) This line of questioning is irrelevant to the prosecution's inquiry, and was designed only to confuse petitioner and to create inconsistencies that could be exploited in an argument to the jury. These false contradictions included questions about the towel found in the bedroom and who made the telephone call to Estella. d. The prosecution implied that petitioner spoke with more certainty than he had. The prosecution implied that petitioner stated he knew Consuelo ran into a door. Petitioner's conjecture made during an interview in which he was asked to offer an explanation for Consuelo's injuries was therefore used to manufacture inconsistencies in his testimony when the prosecution implied that he had been sure about his statements. e. The prosecution questioned petitioner in a way that implied he stated with certainty in his interview that Consuelo had been hit by a car. Petitioner stated instead that he thought Consuelo might have been hit by a car. Consistent with his testimony and his statements to law enforcement, petitioner told his friends that he thought Consuelo might have been run over by a car, though he did not know what had happened to her. (See, e.g., Exh. 104 at 5870 [Declaration of Dionicio Campos Govea].) The prosecution overstated petitioner's certainty in order to confuse petitioner in an attempt to modify his testimony. f. The prosecution implied that petitioner had showered and changed his underwear before he was arrested because they were soiled as a result of sodomizing Consuelo. g. These false statements, not countered by the defense, gave the jury the impression that petitioner did not care about Consuelo when she was dying in the hospital. They presented a picture of petitioner as cold and distant, and capable of killing someone. They also led the jury to believe that petitioner had intentionally fabricated statements, or changed his testimony. These implications were false: petitioner did not fabricate statements or change his account of the events in any material respect. Any apparent minor inconsistencies were most likely due to his low cognitive functioning in combination with poor interpretation, which hampered his ability to understand the complex proceedings and permitted the prosecutor to manipulate petitioner's answers to make him sound evasive. (Exh. 126 at 6358 [Declaration of Antonio E. Puente, Ph.D].) The prosecution used these circumstances in conjunction with irrelevant questioning to improperly convey to the jury that petitioner was lying in court because he was guilty. D. CLAIM 4: THE STATE PRESENTED FALSE AND MISLEADING TESTIMONY THAT PETITIONER CAUSED CONSUELO VERDUGO'S INJURIES THAT SHE SUSTAINED PRIOR TO NOVEMBER 17,1991.~ The convictions and sentence of death were rendered in violation of petitioner's rights to a fair, reliable, rational, nonarbitrary and accurate determinations of guilt and penalty, to a fair trial free from false and misleading evidence, to an opportunity to confront and refute adverse evidence, to the disclosure of all material exculpatory evidence, and to the effective assistance of counsel as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 7, 9, 12, 13, 14, 15, 16, 17, 24, 27 and 28 of the California Constitution and state law because the prosecution introduced, and trial counsel unreasonably and prejudicially failed to exclude or refute, testimony regarding the nature and cause of the victim's prior injuries and illnesses. The prosecution presented false testimony and falsely argued at trial that petitioner caused prior injuries suffered by Consuelo Verdugo, including vaginal, head, abdominal, and arm injuries, and prior illness. The prosecution presented false testimony that petitioner had molested Consuelo in the past. The State falsely portrayed Consuelo as a healthy child who began to have health problems only after petitioner came into her life. In fact, the prosecution had knowledge that Consuelo was exposed to individuals who were violent and who had committed sex abuse crimes in the past, that petitioner was caring and gentle to Consuelo and had not had This Claim qualifies as a Category 2 claim. 79 the opportunity or the propensity to commit violence that would cause the prior injuries, and that Consuelo had a myriad of health problems long before she met petitioner. In support of this claim, petitioner alleges the following facts, among others to be presented after full discovery, investigation, adequate funding, .access to this Court's subpoena power, and an evidentiary hearing: 1. Although the prosecution was aware that Estella Medina's family and at least one male friend had a history of violence, drug abuse, and sex abuse crimes and had been exposed to Consuelo, the prosecution nonetheless falsely asserted and led the jury to believe that petitioner caused Consuelo's prior injuries. a. A substantial portion of the prosecution's case against petitioner included testimony about injuries and illnesses that Consuelo sustained prior to November 17, 1991. These included vaginal, head, abdominal, and arm injuries. b. During his questioning of Estella at trial, the prosecutor implied that Consuelo began to exhibit these injuries only after petitioner came to live with Estella and her daughters, thereby implying that petitioner caused Consuelo's past injuries and illnesses: Prosecutor: Mrs. Medina, isn't it true that you knew what was happening with this man but you weren't reporting it? Medina : No I didn't. Prosecutor: It wasn't until he came around that the child started having broken bones and bruises, isn't it? Medina: No. (13 RT at 2587-88.) c. Throughout his case in chief and during closing argument, the prosecutor asserted through questions and argument that Estella's denials were false and, instead, that petitioner had caused these injuries. d. The prosecution pointed out that Estella told slightly different stories about a time Consuelo obtained a head injury (14 RT at 2559; 2603; 2643), and elicited stories from other prosecution witnesses that implied Estella told different stories to different people, implying that Estella was covering up the real cause of the injury. (14 RT at 2730; 17 RT at 3347.) The prosecution also implied that Estella did not take Consuelo to the hospital when she hurt her head because she was protecting petitioner. (13 RT at 2582.) e. The prosecutor implied, and argued, that petitioner had caused Consuelo's arm injury that she sustained on September 24, 1991, because Estella did not take Consuelo to the hospital until the day after Consuelo visited Delia, and petitioner had spent that night at Estella's. (1 1 RT at 2205; 13 RT at 2553-54.) He also presented evidence that Estella told conflicting stories about how Consuelo sustained this injury. (13 RT at 2553-55.) f. The prosecutor elicited testimony from Diana Alejandro to show that Estella noticed a mood change in Consuelo before her death, implying that Consuelo was depressed because she was being molested. (13 RT at 2584.) g. In fact, the prosecution possessed evidence demonstrating that several other individuals likely caused the injuries. (1) The prosecution knew Consuelo was continually exposed to numerous individuals who were known drug users and/or known to be violent and likely injured Consuelo. These included: Javier Alejandro; Delia Salinas; Antonio Alejandro (Exh. 62 [Newspaper Article]); and Diana Alejandro. (2) Javier Alejandro, Estella's brother, had a criminal record and was known to be violent. (Exh. 44 at 4748-49 [People v. Javier Alejandro, Kern County Superior Court Case No. 350991.) Javier was suspected of threatening members of the defense team at the time of trial. (Exh. 23 [Delano Police Department Report regarding Marisol Alcantar, dated March 26, 19931; Exh. 105 at 5894-95 [Declaration of Marisol Calderon Alcantar] .) (3) The prosecution knew that one of Consuelo's main caretakers, her aunt Delia Salinas, was mentally unstable and likely a neglectful caretaker. The prosecution interviewed Delia Salinas on numerous occasions, during which she admitted that she suffered from "nervous breakdowns." (Exh. 4 at 2051-53 [District Attorney Case Report of Interview with Delia Salinas, dated May 2 1, 19921; Exh. 4 at 23 10 [District Attorney Case Report of Interview of Delia Salinas, dated July 24, 19921.) Her sister Estella says that Delia has suffered from major mental health problems her whole life. (Exh. 66 at 5356-57, 5361 [Declaration of Estella Alejandro Medina].) She has had repeated psychotic episodes for which she has been hospitalized several times. (Id.) In October of 1991 Delia began to decompensate again. (Id.) She hallucinated and began irrationally stacking dishes and food on the kitchen counters. (Id. at 5363-64.) She became unresponsi;e. (Id. at 5364.) This psychotic episode lasted through Consuelo's death until about December of 1991. (Id.) The prosecution had in its possession copies of Delia's mental health records. (17 RT at 3334-52.) Delia also informed the district attorney investigator that she had been babysitting for Consuelo when Consuelo broke her arm. (Exh. 4 at 2051 [District Attorney Case Report of Interview with Delia Salinas, dated May 2 1, 19921 .) (4) Antonio Alejandro, Estella's brother, was one of Consuelo's babysitters. (Exh. 62 at 52 1 1-12 ["Family Grieves in Child's Death," Bakersfield Californian, November 27, 199 11; Exh. 46 [In re Marriage of Jennette Gwman and Antonio Perez Alejandro, Kern County Superior Court, Case No. 5257701.) The prosecution also knew that Antonio was violent. (Exh. 23 at 4127- 45 [Delano Police Department Report] .) (5) Likewise, her aunt Diana Alejandro, who was also a frequent caretaker, was a known drug addict. (Exh. 4 at 2236 [Interview with Diana Alejandro, dated May 1 1, 19921; Exh. 103 at 5838 [Declaration of Cristobal Aguilar Galindo].) She was also known around the community and by the prosecution to be violent. Diana told District Attorney investigator Ray Lopez that she did not want to talk to Estella about Consuelo because Diana knew she would end up becoming physically violent with Estella. (Exh. 4 at 2250, 2260 [Transcript of Interview with Diana Alejandro by Ray Lopez, May 12, 1992); Exh. 103 at 5838 [Declaration of Cristobal Aguilar Galindo] .) (6) The prosecution also knew that Consuelo had been exposed to known sex abusers, including Joe Avila (Exh. 4 at 2071-73 [Interview with Vicki Salinas by Ray Lopez]; Exh. 6 at 2943-5 1 [Rap sheet of Joe Avila]), and Sacaraias Alejandro (Exh. 38 [People v. Sacarias John Alejandro, West Kern County Municipal Court, Case No. 3908031; Exh. 39 [People v. Sacarias John Alejandro, Kern County Municipal Court, Case No. 545781; Exh. 40 [People v. Sacarias John Alejandro, Kern County Superior Court, Case No. 41945Al; Exh. 41 [People v. Sacarias John Alejandro, Kern County Municipal Court, Case No. 566071; Exh. 42 [People v. Sacarias John Alejandro, Kern County Superior Court, Case No. 47742Al; Exh. 43 [Debra Alejandro v. Sacarias John Alejandro, Kern County Superior Court, Case No. 5479381.) 2. The prosecution presented false, misleading, and prejudicial medical testimony that Consuelo Verdugo had old rib injuries received three to four weeks prior to her death. a. The State presented the testimony of Dr. Dibdin that Consuelo's ribs contained evidence of prior injury to the posterior, left eighth and ninth ribs. (1 1 RT at 2 127.) He stated that these injuries occurred three to four weeks before her death. (1 1 RT at 2128.) b. The prosecutor, relying on Dr. Dibdin's testimony falsely argued that petitioner caused these prior rib injuries. He stated in opening argument that "[slhe didn't just have totally fractured rear ribs, she had old fractured ribs, several weeks old." (10 RT at 2027.) During closing argument, he argued the eighth and ninth posterior ribs on the left had old fractures that were three weeks old, (1 8 RT at 3588), "[wle have old broken bones and old scarring of the pancreas.. . . Maybe that is what he did." (1 8 RT at 3652.) (1) In fact, the prosecutor knew that Consuelo often fell and as a result was prone to injury. The prosecution knew that Consuelo had many other injuries that could have accounted for the healing fractures which were completely unrelated to petitioner. Petitioner was never present during any of these times that Consuelo had fallen and possibly caused injury to her ribs. (a) Estella and her family told investigators of multiple incidents where Consuelo injured herself. Estella told the Delano Police and District Attorney Investigator Bresson that Consuelo was "always falling down, she's always getting into things. Even at my mom's house, you know, she's always bumping, she falls." (Exh. 4 at 2209 [Transcript of Interview with Estella Medina, July 9, 19921.) On one occasion, while trying to reach some knickknacks on a wall shelf, she climbed up to the top of the couch and fell off the back, hitting her head on the cement next to the sliding glass door. (Exh. 4 at 2200 [Delano Police Interview of Estella Medina, November 26, 199 1 .) Estella also described multiple instances where Consuelo lost her balance and fell down, or ran around too quickly, bumping into things around the house. (Id. at 2 1 89-9 1 ; 2208- 10.) Another instance Estella described was when Consuelo climbed to the top of a chair and then fell backwards, off of it. (Id. at 2210.) Estella also testified that Consuelo had once fallen from a recliner and landed on her head on the ground outside the apartment. (13 RT at 2558-59.) (b) Delia, Consuelo's aunt, told investigators that Consuelo was clumsy and fell down a lot. (Exh. 4 at 2051 [District Attorney Case Report, May 21, 19921.) Delia also testified that Consuelo climbed up on top of things, such as the table and the counter, "all the time" and that Consuelo often pulled the power cords connected to fans sitting up on tables or stands and pulled the fans down to the floor, which hit her head at least a couple of times on the way down. (17 RT at 3347, 3351.) (c) Estella's and petitioner's friends, who were also caretakers of Consuelo witnessed Consuelo's penchant for injury. Maria Celia Campos vividly recalls Consuelo as an active child: Whenever I saw [Consuelo], I noticed that she was a handful. That little girl ran up and down and all over the place. She was always falling. Though she could walk, she fell all the time - she did not even need to have something to trip over. Her body was so flexible that she fell every other step - it was as if she had no strength in her legs. We had to keep right behind her when she went anywhere, or else she would fall or get into something. She loved to climb anything she could get onto. She climbed stairs, chairs, anything. One time, I remember I turned around and there was [Consuelo] on top of the refrigerator. We had no idea how she had managed to get herself up there. Another time, about two to three months before [Consuelo] died, she fell down the steps in front of my house. The steps were cement and rather high. There were two of them, and she just took a big tumble. Estella and I found her crying at the bottom of the steps. [Consuelo] was walking at the time. She walked out of the house alone and fell down the cement steps. (Exh. 98 at 5732 [Declaration of Maria Celia Campos].) (d) Consuelo was known by all who were around her as a very active child who liked to climb things and pull things down from high places. (See, e.g., Exh. 94 at 5684 [Declaration of Ana Maria Cordero Cardenas de Davalos]; Exh. 104 at 5865 [Declaration of Dionicio Campos Govea].) (2) Moreover, the prosecutor knew Consuelo had been exposed to violent and unstable family members, who often babysat for her and were far more likely to have caused her injuries. As stated above, the prosecution also knew that Consuelo's aunt Delia, a frequent babysitter for Consuelo, had a history of mental health problems. (17 RT at 3334-52.) 3. The State presented false, misleading, and prejudicial testimony that Consuelo received past injuries to her abdomen sometime before her death. a. The prosecution presented the testimony of Dr. Jack Bloch and Dr. Jess Diamond, who stated Consuelo had scarring and adhesions indicating prior injury to her pancreas. (12 RT at 2456-58 [Bloch]; 10 RT at 2047-48 [Diamond].) Bloch opined that the prior injury likely came from trauma, and occurred in the twenty-one months prior to her death. (12 RT at 2456-58.) Diamond testified that, during surgery, doctors had found adhesions, or scar tissue, on the right side of the large bowel. (10 RT at 2047.) According to Diamond, the adhesions were not normal, and were probably due to trauma, such as "being struck by external trauma." (10 RT at 2048.) b. The prosecutor falsely argued that petitioner caused these injuries. The prosecution stated at trial that petitioner caused Consuelo's prior abdominal injuries. "Maybe he tried to get what he did the easy way. We have old broken bones and old scarring of the pancreas. We have old reports of incidents of head injury. Maybe that is what he did." (1 8 RT at 3652.) c. The prosecutor knew these statements were false. Witnesses had reported to the prosecution that petitioner was not a violent man and had not harmed Consuelo in the past. (See, e.g., Exh. 4 at 2051 [Interview of Delia Salinas by Ray Lopez, May 14, 19921; Exh. 4 at 2049- 50 [Interview of Javier Alejandro by Ray Lopez, May 14, 19921; Exh. 4 at 2198-99 [Interview of Estella Medina, November 26, 19911; Exh. 4 at 1820-2 1 [Interview of Cristina Medina, November 18, 199 11 Exh. 125 at 63 18 [Declaration of Jose Jesus Vasquez Davalos] .) 4. The prosecution presented false testimony and argument that petitioner caused Consuelo Verdugo's arm injury on September 24, 199 1. The prosecution was aware that there was no evidence whatsoever to support its claim that petitioner saw Consuelo on that day. In addition, the prosecution knew of, but did not disclose, evidence in its possession that demonstrated that the injury was consistent with an accident, and that if the injury was the result of abuse, Delia Salinas was the likely abuser. a. The prosecution attributed Consuelo's prior wrist injury to petitioner, and argued that Estella covered up the injury. "Hard to believe there's a mother out there who could act like this," argued the prosecutor. "He couldn't have found a better situation for his perversion. [Estella] did not protect Consuelo Verdugo. I mean, she can't even tell two doctors the same story about how she broke her arm. Maybe she did break it at the grandmother's, maybe she didn't." (1 8 RT at 3596.) b. The prosecutor knowingly created this false impression that petitioner was responsible for the wrist injury when he possessed information proving that petitioner did not break Consuelo's wrist. Cristina, Delia, and Estella all told the prosecution that petitioner was not present, or even at the house, when Consuelo's wrist was broken. (See, e.g., Exh. 4 at 2051 [Interview of Delia Salinas by Ray Lopez, May 14, 19921; Exh. 4 at 2 198-99 [Interview of Estella Medina, November 26, 199 11; Exh. 4 at 1820-2 1 [Interview of Cristina Medina, November 18, 199 11.) c. Indeed, the prosecutor withheld evidence that Consuelo's prior arm injury was consistent with the explanation given by Estella. A note in the prosecutor's file stated that on December 3, 199 1, the prosecutor interviewed Dr. Chandrasekaran, the doctor who had treated Consuelo for her broken arm. These notes indicate that the doctor confirmed that Consuelo's wrist had been broken, and that there was no indication of child abuse, rather the injury was "consistent with [the] explanation" given, that Consuelo "fell." (Exh. 5 at 2568 [Handwritten notes].) This document was withheld from the defense. Had petitioner been provided this note, it would have been used to confirm that petitioner had not abused Consuelo or caused the injury and the prosecution's assertion to the contrary was false. 5. The prosecution presented false testimony that petitioner caused Consuelo Verdugo's prior head injury. a. The prosecution questioned Estella and petitioner regarding a head injury Consuelo suffered at her apartment. Both Estella and petitioner consistently stated that Consuelo had hurt her head reaching for something on the wall in the living room, and that petitioner was not present when this occurred. (13 RT at 2555-57 [Estella]; 13 RT at 3046 [petitioner] .) The prosecution implied, however, that petitioner was present when this injury occurred (1 5 RT at 3046), he caused the injury (1 8 RT at 3652), and Estella and petitioner lied about the cause of the injury to others (14 RT at 2730). The prosecutor further insinuated that Estella and petitioner then refused to take Consuelo to the doctor and instead put aloe Vera on the injury to conceal petitioner's abuse. (13 RT at 2556-57.) In his closing argument, the prosecution stated: "We have old reports of incidents of head injury. Maybe that is what he did." (18 RT at 3652.) b. In fact, the prosecution knew that Consuelo was an over-active child who fell and hurt herself often. (See, e.g., Exh. 66 at 5367-68 [Declaration of Estella Alejandro Medina]; Exh. 4 at 2050-51 [District Attorney Case Report, May 21, 19921; Exh. 4 at 2422 [Transcript of Interview with Estella Medina, July 9, 19921; see also discussion supra Claim 4(2)(b)(l)-(2).) 6. The prosecution presented false, misleading, and prejudicial testimony that petitioner had molested Consuelo on a prior occasion. a. Early in 1992, Ray Lopez approached Estella's niece, Consuelo's and Cristina's cousin, Virginia (Vicki) Salinas. Lopez asked Vicki to participate in the investigation as an agent of the district attorney's office. (See, e.g., 13 RT at 2569 [prosecutor refers to Vicki as an "investigator from my office"] .) b. Therefore, even though the prosecution knew Cristina did not believe petitioner ever harmed Consuelo in any way, that Consuelo had trouble sleeping and slept better with petitioner, whom she viewed as her father, Cristina's statements were presented at trial as evidence that petitioner molested Consuelo that night. (See, e.g., 1 1 RT at 2 189-90; 18 RT at 3591-92.) In addition, the prosecution presented false testimony that this was the only other night petitioner had stayed with Estella's daughters, implying that the only two times petitioner cared for them he molested Consuelo (1 1 RT at 2 189-90), even though both Cristina and Estella told the police that petitioner stayed with the girls regularly without incident. (Exh. 4 at 18 14-48 [Interview with Cristina Medina]; Exh. 4 at 1849- 1906 [Interview with Cristina Medina, June 12, 19921; Exh. 4 at 2380-2514 [Interview with Estella Medina, July 9, 19921 .) 7. The State presented false testimony implying petitioner molested Consuelo Verdugo causing her illness on or around Halloween. a. The statements of Estella Medina that were given to the prosecution before trial indicated that Consuelo was ill at times in the months before her death. Estella told the prosecution that she thought Consuelo was sick, or was teething. (13 RT at 2584.) "I noticed that she was feeling kind of sad, she was feeling strange, she didn't want to eat too good, she wouldn't laugh, she wouldn't play, she would just lay in bed." (13 RT at 2584.) b. At trial, the prosecutor falsely implied that petitioner caused Consuelo's illness by molesting her the month before her death (13 RT at 2584-86), that Estella refused to take Consuelo to the doctor because she sought to hide evidence of the molestation (13 RT at 2586), and that this was part of a pattern engaged in by petitioner and Estella. (18 RT at 3596.) 8. The prosecutor presented the false and coerced testimony of Estella Medina that she worried about her children when they were alone with petitioner. a. To lend support to the prosecutor's false theory that petitioner was a threat to the children, law enforcement coerced Estella into testifjring that she mistrusted petitioner with her children when in fact she placed the utmost trust in him. (See Claim 2, supra.) Estella's daughter Cristina was removed from her home by the police officers and district attorney investigators who interviewed her about the case. This occurred after Estella told the officers she would not testifj that petitioner had harmed her daughter. (Exh. 4 at 221 5, 2225 [Transcript of Interview with Estella Medina, November 26, 19911.) They told her that she needed to believe that petitioner had raped and sodomized her daughter, and not let her love for petitioner "blind" her to this established fact. (Id. at 2214.) b. After Cristina temporarily was returned to Estella, Ray Lopez again removed her from her mother's custody immediately after he interviewed Estella on July 9, 1992, because Estella still did not believe petitioner had hurt her daughter. (Exh. 4 at 2380-25 14.) c. Thus, Estella was told she had to prove she was a more protective mother in order to receive custody of Cristina once again. She believed that she needed to demonstrate to the police, the district attorney, and the Department of Human Services caseworkers that she had tried to protect her daughters from any abuse committed by petitioner, even though she did not believe he was in any way abusive to them. She therefore testified for the district attorney at trial that she had told petitioner, "If he ever touched my kids I would have him locked up." (1 3 RT at 2562.) She also testified that she told her daughters to close their doors whenever she was not home. (13 RT at 2562.) She made these statements in order to prove that she was sufficiently suspicious of petitioner, and sufficiently protective of her daughters in light of this suspicion, even though she did not believe that petitioner would cause harm to them in any way. (Exh. 66 at 5373, 53 86-88 [Declaration of Estella Medina] .) The prosecutor knew these statements were false, and knew that Estella did not believe petitioner ever harmed her daughters. Despite this knowledge, he coerced and presented these false statements. d. As a result of Estella's false and coerced statements, the jury believed Estella mistrusted petitioner with her daughters, and therefore believed she had reason to do so because he had harmed them or threatened to harm them in the past. Estella's false and coerced statements thus supported the prosecution's false theory that petitioner had caused Consuelo's prior injuries, and led the jury to believe that indeed he had caused them. 9. The prosecution presented false testimony that Consuelo was in good health prior to November 17, 1991, and failed to disclose information that indicated possible causes of her prior injuries other than abuse by petitioner. a. The prosecution based its case on an intentionally false premise that contradicted and ignored the evidence it had obtained. An assumption central to the state's case was that: "On November 17, 1991, Consuelo Verdugo before 7:00 p.m. was a healthy, twenty-one-month-old little girl and within fifteen minutes she had been sodomized.. .raped.. . [and] beaten." (18 RT at 3597 [emphasis supplied]; see also 10 RT at 2024 [opening statement].) The prosecution elicited the testimony of Diana Alejandro that Consuelo was a "normal and healthy child" before this day. (14 RT at 2730.) b. However, the prosecution had knowledge before trial that Consuelo had a host of health problems long before petitioner met her or completely unrelated to petitioner, including anemia, broken bones, and problems walking. Her habit of climbing things, pulling appliances, such as fans, down from shelves by their power cords, and falling often combined to cause the symptoms mentioned by others. (Exh. 55 at 5042-45 [Transcript of Interview of Delia Alejandro by District Attorney Investigator Ray Lopez, May 14, 19921; Exh. 66 at 5366 [Declaration of Estella Alejandro Medina]; Exh. 98 at 5732 [Declaration of Maria Celia Campos] .) (1) Estella and her family told investigators of multiple incidents where Consuelo injured herself. On one occasion, while trying to reach some knickknacks on a wall shelf, she climbed up to the top of the couch and fell off the back, hitting her head on the cement next to the sliding glass door. (Exh. 4 at 2200 [Delano Police Interview of Estella Medina, November 26, 199 1 .) Estella also described multiple instances where Consuelo lost her balance and fell down, or ran around too quickly, bumping into things around the house. (Id. at 2 189-9 1; 2208- 10.) Estella told the Delano Police and District Attorney Investigator Bresson that Consuelo was "always falling down, she's always getting into things. Even at my mom's house, you know, she's always bumping, she falls." (Id. at 2209.) Another instance Estella described was when Consuelo climbed to the top of a chair and then fell backwards, off of it. (Id. at 2210.) Estella also testified that Consuelo had once fallen from a recliner and landed on her head on the ground outside the apartment. (13 RT at 2558-59.) Estella also told District Attorney Investigator Lopez that "ever since she was, you know, a baby she, she got diaper rash. She would always have diaper rash. I would always have Desitin, you know, to put on her or something. One time I had to take her to the doctor because she got a real bad rash." (Exh. 4 at 2422 [Transcript of Interview with Estella Medina, July 9, 19921.) (2) Delia, Consuelo's aunt, told investigators that Consuelo was clumsy and fell down a lot. (Exh. 4 at 2051 [District Attorney Case Report, May 21, 19921.) Delia also testified that Consuelo climbed up on top of things, such as the table and the counter, "all the time" and that Consuelo often pulled the power cords connected to fans sitting up on tables or stands and pulled the fans down to the floor, which hit her head at least a couple of times on the way down. (17 RT at 3347,3351 .) (3) Diana Alejandro, Estella Medina's other sister, also told Lopez on May 1 1, 1992, that Consuelo "was always rashed [i.e., she always had a rash] when she was living down . . . on 13 13 Albany." (Exh. 4 at 2254 [Transcript of Interview with Diana Alejandro, May 1 1, 19921 .) Diana explained that Consuelo always had a rash because her diaper was not changed at night by members of the Alejandro family. (Exh. 4 at 2287 [Transcript of Interview with Diana Alejandro, May 1 1, 19921.) c. Witnesses also told the prosecution that petitioner took very good care of Consuelo, was not violent, and did not hurt her or cause her health problems. (See, e.g., Exh. 4 at 2051 [Interview with Delia Salinas]; Exh. 4 at 2049-50 [Interview with Javier Alejandro]; (Exh. 4 at 18 14-48 [Interview with Cristina Medina]; Exh. 4 at 1849- 1906 [Interview with Cristina Medina, June 12, 19921; Exh. 4 at 2380-25 14 [Interview with Estella Medina, July 9, 19921.) d. The prosecution knew that Consuelo had exposure to men known to be violent who may have caused her prior injuries, such as Javier Alejandro, Antonio Alejandro, and others, and to sex abusers, such as Jose Avila and Sacarias Alejandro. (See, e.g., Exh. 4 at 2071-73 [Interview with Vicki Salinas by Ray Lopez]; Exh. 6 at 2943-51 [Joe Avila's rap sheet]), and Sacarias Alejandro (Exh. 38 [People v. Sacarias John Alejandro, West Kern County Municipal Court, Case No. 3908031; Exh. 39 [People v. Sacarias John Alejandro, Kern County Municipal Court, Case No. 545781; Exh. 40 [People v. Sacarias John Alejandro, Kern County Superior Court, Case No. 41945Al; Exh. 41 [People v. Sacarias John Alejandro, Kern County Municipal Court, Case No. 566071; Exh. 42 [People v. Sacarias John Alejandro, Kern County Superior Court, Case No. 47742Al; Exh. 43 [Debra Alejandro v. Sacarias John Alejandro, Kern County Superior Court, Case No. 54793 81 .) 10. The prosecutor thus prejudiced petitioner's case by falsely linking him to prior injuries and illnesses suffered by Consuelo Verdugo when no evidence existed to show he had in any way harmed or threatened Consuelo in the past. As a result of the prosecution's cover-up and presentation of unconstitutionally false evidence, the jury believed that Consuelo was healthy and free from threats of violence before petitioner met her, and that her health problems and injuries arose only after she met him. From this false information the prosecution falsely proposed, and the jury wrongly inferred, that petitioner must have caused Consuelo's prior injuries, and that the injuries Consuelo suffered on November 17, 1991 were the culmination of the continuous violence described by the prosecution. Had the prosecutor not knowingly introduced evidence that falsely linked petitioner to Consuelo's prior injuries, the jury would not have believed petitioner had the character to commit the crimes he was charged with, and the verdict would have been different. E. CLAIM 5: THE STATE PRESENTED FALSE AND MISLEADING TESTIMONY THAT PETITIONER WAS A CHILD MOLESTER, WHEN IT HAD OVERWHELMING EVIDENCE IN ITS POSSESSION DISPROVING ITS OWN ALLEGATIONS WHICH IT FAILED TO DISCLOSE.' Petitioner's conviction, confinement, and death sentence were illegally obtained in violation of petitioner's Fifth, Sixth, Eighth, and Fourteenth Amendment and Article I, Sections 1, 7, 9, 12, 13, 14, 15, 16, 17, 24, 27 and 28 of the California Constitution and state law rights to due process; a fair trial; present a defense; confrontation; compulsory process; a reliabIe and accurate assessment of guilt and penalty based on accurate, not false testimony, evidence, and argument; a fair, non-arbitrary sentencing determination; and to be free of the imposition of cruel and unusual punishment were violated by the prosecutor's false assertions and inferences that petitioner was a child molester who had molested Consuelo and her sister Cristina in the past; and by the state's failure to disclose and the jury's failure to hear evidence that Consuelo's sister Cristina had not been sexually abused, that people who knew petitioner and had seen him care for Consuelo stated that he was not violent and was not a child molester, and that Consuelo had health problems that led her to hurt herself regularly. Although the prosecution insinuated throughout the investigation and trial that petitioner previously committed acts of sexual misconduct, thereby tainting the witnesses' testimony and the jury's determination of guilt and penalty, the State knew that petitioner had not committed any such acts. This Claim qualifies as a Category 2 claim. 99 When the prosecutor stated during closing argument that petitioner had been molesting Consuelo for the months preceding her death, as evidenced by Consuelo's prior injuries, and that Cristina was "lucky to get out alive" because petitioner had been molesting her too, the prosecutor knew these statements were not true. He knew that countless witnesses, including Consuelo's mother, Consuelo's sister, petitioner's brother, and friends of Consuelo's family had provided evidence that petitioner was not a child molester and had never molested or hurt Consuelo Verdugo, and that a sex abuse exam conducted in December 1991 proved that Cristina had not been molested, and that this evidence demonstrated to any reasonable person that the prosecutor's statements were false.