Petition for Rehearing — Arturo Fernando Shaw Gutierrez, Petitioner v. California

Supreme Court briefOct 26, 2020

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No. 19-1374

In The

Supreme (Knurl nf ike ^Sniieii plates

Arturo Fernando Shaw Gutierrez,

Petitioner,

People of the State of California,

Respondent.

On Writ Of Certiorari

To The California Court of Appeals,

Fourth District Division Three

PETITION FOR REHEARING

Arturo Fernando Shaw Gutierrez

Prose

603 Golden West Ave.

Ojai, CA 93023

(805) 535-9539

gcglaw@gmail. com

RECEIVED

OCT 2 9 2020

TABLE OF CONTENTS

TABLE OF AUTHORITIES................

TEXT OF AUTHORITIES USED......

PETITION FOR REHEARING

REQUEST FOR GVR ORDER.............

PART I. INTERVENING CASE LAW

PART II. DENIAL OF RIGHT TO

EVIDENTIARY HEARING...........

PART III. CONCEALMENT OF

WARRANTLESS SEARCHES

FROM AFFIDAVITS........ ............ .

PART IV. PERJURY AND

INTENTION TO RETALIATE

PART V. FABRICATION OF

EVIDENCE AND INTENTION

TO RETALIATE.........

CONCLUSION.........................

CERTIFICATION

APPENDIX I (filed unattached)

Excerpts from Habeas Corpus

RE: Fabricated Warrant Purpose

79a

APPENDIX J (filed unattached)

Facebook Guidelines for Law Enforcement

91a

SEALED APPENDIX K (filed unattached)

Proof that Evidence was Concealed

RE: Fabricated Warrant

94sa

TABLE OF AUTHORITIES

CASES

Alderman v. United States,

394 U.S. 165 (1968).......................

5, 13

Berger v. United States,

295 U.S. 78 (1935).............

Bivens v. Six Unknown Named Agents Of

Federal Bureau Of Narcotics,

403 U.S. 388 (1971)

Butz v. Economou,

438 U.S. 478 (1978) ...........

Carpenter v. United States,

138 S.Ct. 2206 (2018)......................

2, 3, 4

Costanich v. Dep’t of Soc. & Health Servs.,

627 F.3d 1101 (9th Cir. 2010)

Devereaux v. Abbey,

263 F.3d 1070 (9th Cir. 2001)....................

DP Pham, LLC v. Cheadle,

246 Cal.App.4th 653 (2016)........................

Franks v. Delaware,

438 U.S. 154 (1978)......................................

Halsey v. Pfeiffer,

750 F.3d 273 (3d Cir. 2014)........................

Hartman v. Moore,

547 U.S. 250 (2006)......................................

Herring v. United States,

129 S.Ct. 695 (2009)...........

Johnson v. United States,

333 U. S. 10 (1948).....................

Kyles v. Whitley,

514 U.S. 419 (1995)....................

Limone v. Condon,

372 F.3d 39 (1st Cir. 2004)..........

Lee v. Florida,

392 U.S. 378 (1968).......................

Menna v. New York,

423 U.S. 61 (1975).........................

Merrill v. Superior Court,

27 Cal.App.4th, 1586 (1994)..........

Mine Workers v. Illinois Bar Assn.,

389 U.S. 217, 222 (1967)...........

Olmstead v. United States,

277 U.S. 438 (1928)........ .......... .

1, 12

People v. Cook,

22 Cal.3d 67 (1978)

People ex rel. v. SpeeDee Oil Change Systems, Inc.

86 Cal.Rptr.2d 816 (1999)....................................... 6

People v. Superior Court (Laff),

25 Cal.4th 703 (2001).............................................. 12

Riley v. California,

134 S.Ct. 2473 (2014)................. ............................. 4

Rochin v. California,

342 U.S. 165 (1952).................................................. 13

Stone v. Powell,

428 U.S. 465 (1976)..............................................

United States v. Sager,

227 F.3d 1138 (9th Cir. 2000)

United States v. Warshak,

631 F.3d 266 (6th Cir. 2010)

STATUTES

18U.S.C. § 2701(a)(1)....................

3, 5, 10

18 U.S.C. § 2703(a).........................

3, 5, 12

18 U.S.C. § 2703(f)(1)....................

18 U.S.C. § 2704(a)(1)...................

California Penal Code § 1524.3(g)

RULE OF COURT

Supreme Court Rule 44.2

OTHER RESOURCES

House of Representatives Report 99-647 (1986)

TEXT OF AUTHORITIES USED

United States Code

18 U.S.C. § 2701

(a) Offense.- Except as provided in subsection (c)

of this section whoever—

(l) intentionally accesses without authorization

a facility through which an electronic communi

cation service is provided;

18 U.S.C. § 2703

(a)

Contents

of Wire

Electronic

Communications in Electronic Storage.— A

governmental entity may require the disclosure

by a provider of electronic communication

service of the contents of a wire or electronic

communication, that is in electronic storage in

an electronic communications system for one

hundred and eighty days or less, only pursuant

to a warrant issued using the procedures

described in the Federal Rules of Criminal

Procedure (or, in the case of a State court, issued

using State warrant procedures) by a court of

competent jurisdiction. A governmental entity

may require the disclosure by a provider of

electronic communications services of the

contents of a wire or electronic communication

that has been in electronic storage in an

electronic communications system for more than

one hundred and eighty days by the means

available under subsection (b) of this section.

18U.S.C. § 2703

(f) Requirement To Preserve Evidence.—

(l) In GENERAL.— A provider of wire or electronic

communication services or a remote computing

service, upon the request of a governmental

entity, shall take all necessary steps to preserve

records and other evidence in its possession

pending the issuance of a court order or other

process.

18 U.S.C. § 2704

(a)Backup Preservation.—

(l) A governmental entity acting under section

2703(b)(2) may include in its subpoena or court

order a requirement that the service provider to

whom the request is directed create a backup

copy of the contents of the electronic communi

cations sought in order to preserve those

Without

notifying

communications.

the

subscriber or customer of such subpoena or court

order, such service provider shall create such

backup copy as soon as practicable consistent

with its regular business practices and shall

confirm to the governmental entity that such

backup copy has been made. Such backup copy

shall be created within two business days after

receipt by the service provider of the subpoena

or court order.

California Penal Code

§ 1524.3

(g) A provider of wire or electronic communi

cation services or a remote computing service,

upon the request of a peace officer, shall take all

necessary steps to preserve records and other

evidence in its possession pending the issuance

of a search warrant or a request in writing and

an affidavit declaring an intent to file a warrant

to the provider. Records shall be retained for a

period of 90 days, which shall be extended for an

additional 90‘day period upon a renewed request

by the peace officer.

PETITION FOR REHEARING

REQUEST FOR THIS COURT’S GVR ORDER

Petitioner Arturo Fernando Shaw Gutierrez

respectfully petitions for a rehearing of the Court’s

Oct. 5, 2020 order denying his petition for a writ of

certiorari pursuant to Supreme Court Rule 44.2.

The facts and issues of this case present clear

grounds for this Court to issue a GVR on one or

several grounds.

The charges stem from the interactions with

the government, while the government was

committing federal felonies. The government then

made accusations based on fabricated evidence using

a statute that violates void for vagueness. Then, the

government obtained warrants based on perjury,

concealed illegal searches, and concealed exculpatory

evidence. Thereafter, the government destroyed the

jury pool through the dissemination of lies to the

media. The government then threatened multiple

years in prison if the case was brought to trial. All the

while the government was concealing multiple

material exculpatory documents. Followed by the

courts denying due process of law by refusing to allow

for an evidentiary hearing.

“Can it be that the Constitution affords no

protection against such invasions of individual

security?” Olmstead v. United States, 277 U.S. 438,

474 (1928) (Brandeis, J., dissenting).

PARTI.

INTERVENING CASE LAW

The holding in Carpenter v. United States, 138

S.Ct. 2206, 2222 (2018) directly overrules the trial

court’s ruling.

Regarding the warrantless searches of e-mail

by police, the trial court ruled as follows^

“So I agree with Warshak with respect to the

reasonable expectation of privacy that a person

holds in the message itself, but once it is sent,

once the send button is pushed, whether it is

e-mail or text or, in this case, message from one

Facebook account to another, that Fourth

Amendment expectation of privacy is gone. [TJ]

For that reason I don’t find that the defendant

has an expectation of privacy in the messages

that were received by the account of the alleged

victim, and the motion to suppress is denied.”

(App. D 42a-43a).

“Accordingly, we hold that a subscriber enjoys

a reasonable expectation of privacy in the contents of

emails ‘that are stored with, or sent or received

through, a commercial ISP [Internet Service

Provider].’Warshak I, 490 F.3d at 473.” [Emphasis

added.] United States v. Warshak, 631 F.3d 266, 288

(6th Cir. 2010).

“We hold only that a warrant is required in the

rare case where the suspect has a legitimate privacy

interest in records held by a third party.” Carpenter

v. United States, 138 S.Ct. at 2222. Warshak confirms

that expectation of privacy in “sent” email.

Congress has declared “that the parties to an

e-mail transmission have a ‘reasonable expectation of

privacy’ and that a warrant of some kind is required”

(House of Representatives Report (H.R.) 99-647

(1986) at 22) under the Fourth Amendment, and the

“contents of’ an “electronic communication” are

accessible “only pursuant to a warrant” (18 U.S.C.

§2703(a)) “before the government may obtain access

to the contents of... an electronic communication in

storage” (H.R. 99-647 at 67) on an internet service

provider’s server because Congress expressly stated

the Third Party Doctrine does not apply (H.R. 99-647

at 72-73).

Subsequent to the Court of Appeals opinion

(issued Jan. 9, 2018), in Carpenter v. United States,

this Court overruled the lower court ruling on June

22, 2018.

PART II.

DENIAL OF RIGHT TO EVIDENTIARY HEARING

The trial court denied the motion to suppress

without an evidentiary hearing, cf. Stone v. Powell,

428 U.S. 465, 481-482 (1976) (constitution requires

“an opportunity for full and fair litigation of a Fourth

Amendment claim”). No evidence was received, and

no witnesses were called to the stand (App. D 39a41a).

PART III.

CONCEALMENT OF WARRANTLESS SEARCHES

FROM AFFIDAVITS

The affiant willfully concealed his federal

felony (18 U.S.C. § 2701(a)(1)) warrantless searches of

e-mail from the affidavits, claiming the searches of

email were initially conducted after 10/30/12 (Sealed

App. 57sa). However, in the police reports, the affiant

Detective Jacob Sorensen, admitted to these

warrantless searches prior to the aforementioned

date, 10/30/12 (Sealed App. H 69sa-70sa).

Sorensen’s police reports discuss the date of

“October 12, 2012” “I reviewed [M.P.’s] Facebook

account and found a conversation with Arturo

Gutierrez that took place on September 29, 2012 and

continued to October 5, 2012.” That same paragraph

continues onto the next page and ends with: “No other

information was located on her Facebook at this

time.” Then three paragraphs later Sorensen reports:

“On October 30, 2012 [M.P.] gave me access to her

Facebook and allowed me to assume her profile.”

(Sealed App. H 69sa-70sa) But does not report that

consent was limited to an unrelated male.

“In the absence of a warrant, a search is

reasonable only if it falls within a specific exception to

the warrant requirement.” Riley v. California, 134

S.Ct. 2473, 2482 (2014). The warrantless searches

were done without consent (see Petition for Certiorari

pages 3-4).

“More confusing still, what have I done to

‘manifest my willingness to accept’ the risk that the

government will pry the document from my friend and

read it without his consent?” [Emphasis in original.]

Carpenter v. United States, 138 S.Ct. at 2263

(Gorsuch, J., dissenting).

Justice Gorsuch’s concerns about the need to

protect e-mail are well-founded. The modern use of

electronic communications on a global scale is

revealing and salient, in that it shows both our

advancement and reliance upon them. Only an

average of 12.4 billion1 calls are made daily, by

contrast over 240 billion2 e-mails are sent daily.

The warrants were based on warrantless illegal

searches of Facebook’s servers in violation of federal

law, see 18 U.S.C. §§ 2701(a)(1); 2703(a), see

Alderman v. United States, 394 U.S. 165, 177 (1968)

(prohibiting illegal searches from forming basis of

search warrant) therefore “nothing short of

mandatory exclusion of the illegal evidence will

compel respect for the federal law” Lee v. Florida, 392

U.S. 378, 385-386 (1968). These illegal searches were

willfully concealed from the affidavits.

PART IV.

PERJURY AND INTENTION TO RETALIATE

The affiant Sorensen had committed federal

felonies (18 U.S.C. § 2701(a)(1)) against M.P., and

only after the affiant illegally read attorney-client

privilege pertaining to the affiant, did Gutierrez

become the target.

October 20, 2012:

M.P.: Hey, I have a question. So the police like

four days ago went on my email and changed my

password so I can’t log on. And the backup email

that you use to see what the password is... is the

cops’ email... Are they allowed to do that without

mine or my parents’ permission? It’s random

that they did this... Hello? (Sealed App. 65sa)

1 Source last visited on Oct. 14, 2020:

https://www. answers.com/Q/How_many_phone_calls_are_made

_every_day_in_the_world

2 Source last visited on Oct. 14, 2020:

https://www.worldometers.info/ (Citing: The Radicati Group

Inc.)

Gutierrez^ In my opinion they cannot do that!

There is no basis for the government to do that.

They can subpoena your records and emails and

they can review it for evidence. But they cannot

change your password and deny you access.

There is no authority to do that. You should

speak to your attorney about seeking an

injunction and you can sue them civilly for

violating your civil rights, specifically your right

to privacy and right to free speech. Their actions

are outside of the law and not supported by any

authority that I am aware of. I think you need to

get a civil attorney to sue them. It’s not my field,

so I cannot do it for you. Keep me posted. [3]

(Sealed App. 65sa)

On 10/24/12, only after the affiant, Sorensen,

feloniously read attorney-client privileged4 emails

pertaining to himself, did Sorensen begin to research

and investigate Gutierrez, proven by the dates on the

RAP sheet (police background check) and DMV print

out and private skip tracing company utilized by

Sorensen (Sealed App. H 73sa-77sa). Sorensen

further perjured himself in the affidavits regarding

the date the investigation began, stating that a

3 Spelling errors are corrected above for ease of reading as the

issue is important. The “...” as shown above is in the original.

The original misspellings are at (Sealed App. 65sa).

4 ‘“When a party seeking legal advice consults an attorney at law

and secures that advice, the relation of attorney and client is

established prima facie.’ [citation].” People exrel. v. SpeeDee Oil

Change Systems, Inc., 86 Cal.Rptr.2d 816, 825 (1999). See also:

“No statutory exception to the attorney-client privilege excludes

email...” DP Pham, LLC v. Cheadle, 246 Cal.App.4th 653, 668

(2016).

request for information was obtained on 10/10/12 and

10/30/12 (Sealed App. G 56sa-57sa). However, the

only documents in discovery prove that this

information was obtained on 10/24/12, a date

completely omitted in the police reports and affidavits

(Sealed App. G 56sa-57sa; Sealed App. H 69sa-70sa).

From its inception, this case was born of federally

felonious searches, and thereafter an intention to

retaliate, subjecting Gutierrez to “unconstitutional

animus” Butz v. Economou, 438 U.S. 478, 512 (1978).

“Details of the investigatory process potentially

affected [the officer’s] credibility and, perhaps more

importantly, the weight to be given to evidence

produced by his investigation.” United States v.

Sager, 227 F.3d 1138, 1145 (9th Cir. 2000) (relying on

Kyles v. Whitley, 514 U.S. 419 (1995))

An intention to retaliate by the government

precluded Gutierrez from being brought before the

courts, cf. Hartman v. Moore, 547 U.S. 250, 256

(2006); Menna v. New York, 423 U.S. 61, 62-63 (1975)

(per curiam).

The affiant’s concealment of exculpatory

evidence and perjury usurped the magistrate’s role in

evaluating the totality of the circumstances. The

lower courts found that perjury and concealment of

exculpatory evidence was reckless and negated one of

the allegations (App. A 23a) but found probable cause

using a statute that violated void for vagueness

without allowing for a hearing, or even argument, to

further establish that even that statute was not

violated because the affiant also concealed evidence

regarding that allegation.

“In Franks [v. Delaware, 438 U.S. 154 (1978)],

we held that police negligence in obtaining a

warrant did not even rise to the level of a Fourth

Amendment violation, let alone meet the more

stringent test for triggering the exclusionary

rule. We held that the Constitution allowed

defendants, in some circumstances, ‘to challenge

the truthfulness of factual statements made in

an affidavit supporting the warrant,’ even after

the warrant had issued. 438 U.S., at 155-156, 98

S.Ct. 2674. If those false statements were

necessary to the Magistrate Judge's probablecause determination, the warrant would be

‘voided.’ Ibid.” Herring v. United States, 129

S.Ct. 695, 703 (2009).

“Power is a heady thing; and history shows

that the police acting on their own cannot be trusted.”

[Emphasis added.] McDonald v. United States 335

U.S. 451, 455-456 (1948). Do the police not act alone

when they subjectively circumvent the magistrate’s

role by concealing truth with perjury?

When the affiant commits perjury and/or

conceals evidence and constitutional violations as a

part of the totality of the circumstances, the

remainder of the affidavit becomes untrustworthy

and therefore unreliable, “[elcapsulated in the

common law maxim ‘falsus in uno, falsus in

omnibus,”’ People v. Cook, 22 Cal.3d 67, 86 (1978).

“Any other rule would undermine ‘the right of the

people to be secure in their persons, houses, papers,

and effects,’ and would obliterate one of the most

fundamental distinctions between our form of

government, where officers are under the law, and the

police-state where they are the law.” [Footnote

omitted.] Johnson v. United States, 333 U.S. 10, 17

(1948).

Gutierrez did prove, and the lower courts

agreed, that the reckless and willful concealment of

exculpatory evidence by the affiant disproved

probable cause regarding one of the many false

accusations.

PARTY.

FABRICATION OF EVIDENCE AND

INTENTION TO RETALIATE

Perjury is fabricated evidence. Fabricated

evidence precludes an individual from being brought

to court because “there is a clearly established

constitutional due process right not to be subjected to

criminal charges on the basis of false evidence that

was deliberately fabricated by the government.”

Halsey v. Pfeiffer, 750 F.3d 273, 292—93 (3d Cir.

2014). This right is not waived by a guilty plea, see

Spencer v. Peters, 857 F. 3d 789, 812-813 (9th Cir.

2017).

“[I]f any concept is fundamental to our

American system of justice, it is that those charged

with upholding the law are prohibited from

deliberately fabricating evidence and framing

individuals.” Limone v. Condon, 372 F.3d 39, 44-45

(1st Cir. 2004).

The first manifestation of an intent to frame an

innocent person, is on the first page of the affidavit,

wherein the affiant announced that numerous men

had committed crimes on M.P. and then introduced

Gutierrez right after, making it appear as though

Gutierrez had committed these crimes as well (Sealed

App. 56sa). Yet, the evidence proves that Gutierrez

was the only man not committing crimes on M.P.

Evidence discovered after the conviction,

provided in the Petition for Habeas Corpus, proves

that there were approximately 9,000 pages between

both Gutierrez and M.P.’s Facebook accounts, all of

which were organized chronologically, with one

exception: the attorney-client privileged communi

cations with a third party, Lauren SteinhausJ said

communications were specific-ally placed out of

chronological order by Facebook.

From Gutierrez’s Facebook account obtained

with a perjury-based warrant:_________

Name

Date

Lauren

11/27/12

[M.P.]

11/30/12

Sean

11/29/12

Morgan

11/28/12

Mobile

11/22/12

Stone

11/20/12

Travis

11/16/12

The right column shows the order as prepared

by Facebook:

11/27, 11/30, 11/29, 11/28, 11/22, 11/20, 11/16. (See

Vol. II App. I 79a_90a; Vol. II Sealed App. K 94salOlsa) Notice that the messages with Lauren were

placed in first position, but should have been in fourth

position.

The only way a computer would have placed

data out of chronological order was if a human

commanded it to, and Facebook stated they will only

“search for data” “that is specified with particularity”

in “an appropriate form of legal process” (See Vol. II

App. J 92a) pursuant to “a warrant” under “18 U.S.C.

Sections 2701-2712” (See Vol. II App. J 91a). The

evidence proves that Lauren’s messages were out of

chronological order. Facebook expressly advised law

enforcement that they will only search for content

data that is specified in a warrant. Therefore the only

inference can be that Facebook was sent some other

version of the warrant, by Sorensen, naming Lauren

as the targeted information. This warrant was

concealed from the prosecution and the defense.

Prior to questioning M.P. about Gutierrez on

11/6/12, (wherein M.P. advised that Gutierrez was the

only one not committing crimes on her), Sorensen

prepared an affidavit for an account preservation

request on 10/31/12, without any evidence of criminal

conduct by Gutierrez, stating that a warrant was

forthcoming for Gutierrez, then concealed this

affidavit from the prosecution and the defense.

However, the evidence proves, as a matter of state and

federal law5, this affidavit exists because Facebook

preserved Gutierrez’s Facebook account on 10/31/12

(See Vol. II App. I 81a).

“The Fourteenth Amendment prohibits the

deliberate fabrication of evidence by a state

official. Devereaux v. Abbey, 263 F.3d 1070,

1074-75 (9th Cir. 2001) (en banc) (Devereaux).

Deliberate fabrication can be established by

circumstantial evidence. For example, evidence

that officials ‘continued their investigation of [a

person] despite the fact that they knew or should

have known that he was innocent,’ id. at 1076,

can raise the inference that the investigator has

an ‘unlawful motivation’ to frame an innocent

person. Costanich v. Dep’t of Soc. & Health

Servs., 627 F.3d 1101, 1111 (9th Cir. 2010).

[Brackets in original.] Spencer v. Peters, 857 F.

3d at 793.

5 See 18 U.S.C. §§ 2703(f)(1); 2704(a)(1); California Penal Code

§ 1524.3(g).

The affidavit contains numerous acts of perjury

and misrepresentations that fabricate evidence to

effect the retaliation for advising M.P. to take legal

action against the affiant Sorensen, but also to

retaliate and obtain access to a third party’s attorneyclient privileged communications with Gutierrez.

Because Gutierrez had filed an internal affair’s

complaint four months prior to the perjury-ridden

warrants being issued against officers for their

treatment of a pregnant woman who was beaten and

strangled; and the police refusal to effectuate her

demand for a citizen’s arrest.

Obtaining these

privileged communications was a Fourth Amendment

violation, as federal law commanded adherence to the

“State warrant procedures” (18 U.S.C. § 2703(a)) and

because “materials protected by the attorney-client

privilege are not subject to disclosure pursuant to a

search warrant, [citations]” People v. Superior Court

(Laff), 25 Cal.4th 703, 717 (2001).

CONCLUSION

The notion of law and order is obliterated when

the government is the one committing crimes in order

to persecute those that advocate for legal redress

(Mine Workers v. Illinois Bar Assn.. 389 U.S. 217, 222

(1967)). This Court has been provided documents and

admissions that prove multiple felony acts by the

affiant Sorensen, all done in violation of the

Constitution of the United States. “If the Government

becomes a lawbreaker, it breeds contempt for law; it

invites every man to become a law unto himself; it

invites anarchy.” Olmstead v. United States, 277 U.S.

at 485 (Brandeis, J., dissenting).

“In such cases there is no safety for the citizen,

except in the protection of the judicial tribunals,

for rights which have been invaded by the

officers of the government, professing to act in

its name.” Bivens v. Six Unknown Named

Agents OfFederal Bureau OfNarcotics, 403 U.S.

388, 394-395 (1971).

In Alderman v. United States, 394 U.S. at 167

this Court was concerned with “electronic

surveillance which might have violated their Fourth

Amendment rights and tainted their convictions”

moreover the above proves ‘“this case reveals a

shocking series of violations of constitutional rights’

[citation]” Rochin v. California, 342 U.S. 165, 167

(1952) “its occurrence undermines the public’s

confidence in the criminal justice system and creates

an impression that our government officers are our

worst enemies, not our public servants. (Cf. Berger v.

United States, 295 U.S. [78] at p. 88 [(1935)]; □.)

Justice was not done here.” Merrill v. Superior Court,

27 Cal.App.4th 1586, 1594 (1994).

The Petition for Rehearing should be Granted,

the conviction Vacated, and the matter Remanded to

the trial court in the interests of justice.

Respectfully submitted,

ARTURO FERNANDO SHAW GUTIERREZ

Pro se

603 Golden West Ave.

Ojai, CA 93023

(805) 535-9539

October 26, 2020

CERTIFICATION

I certify that this Petition for Rehearing is restricted

to the grounds specified in Rule 44.2 and it is

presented in good faith and not for delay.

Respectfully submitted,

ARTURO FERNANDO SHAW GUTIERREZ

Pro se

603 Golden West Ave.

Ojai, CA 93023

(805) 535-9539

October 26, 2020

No. 19-1374

In The

Supreme (Eouri nf tip ^ntteit plates

Arturo Fernando Shaw Gutierrez,

Petitioner,

v. '

People of the State of California,

Respondent.

On Petition For Writ Of Certiorari

To The California Court of Appeals,

Fourth District Division Three

VOLUME II.

APPENDICES I-J

To The

PETITION FOR REHEARING

Arturo Fernando Shaw Gutierrez

Prose

603 Golden West Ave.

Ojai, CA 93023

■ (805) 535-9539

gcglaw@gmail.com

TABLE OF CONTENTS

Appendix I

Excerpts from Petition for

Habeas Corpus

79a

Appendix J

Facebook Guidelines for Law Enforcement 91a

78a

APPENDIX I

II.

FACTUAL BASIS FOR THE WRIT OF

HABEAS CORPUS

Before addressing the facts that lead to an

involuntary plea (Blackledge; In re Bower) and

pursuant to North Carolina v. Alford (1970) 400

U.S. 25, 37—38, (permitting the innocent to enter

a guilty plea), we must first jump to the end and

address

the

reason

why

law

enforcement

committed extensive perjury, concealed material

exculpatory

evidence

and

fabricated

the

appearance of crimes to obtain the warrants and

arrest of Gutierrez; followed by the Time Line of

events, then the factual basis to recall the

remittitur due to misrepresentations by the

Attorney General. Then the facts of the case will

be addressed chronologically. Albeit, some facts

will be grouped out of chronological order when

relevant to explain a particular section. On

critical points, case law will be injected into the

facts.

79a

3. Actual Facts of the Case

The actual facts of this case (from Facebook and

Audio Recordings) are presented for the Court to

review. The affidavits and police reports are used to

demonstrate the multiple felonious lies employed by

the police.

4. Concealed Purpose of the Warrants and

Investigation

The primary and paramount fact to establish,

is the purpose of the warrant, i.e., the primary target

of the warrant. These next five pages are the most

important to begin the path of establishing the truth

of this case.

Unbeknownst to all, was the first date that

Facebook had been requested to generate and

preserve Gutierrez’s Facebook account. That occurred

on 10/31/12.

[(Remainder ofpage intentionally left blank.)]

80a

Gutierrez

account

was

generated

twice

(Exhibit I, PE 733-734):

Generated 2012-10-31 Date Range

Creation to 2012-10-31

Generated 2012-12-12 Date Range 200101-01 to 2012-11-30

The second time that Facebook had been

requested to generate Gutierrez’s Facebook account

was on 11/29/12 at midnight between 11/30/12, the

date the warrant issued was 11/29/12. (Note Exhibit

I, PE 733 shows 11-30 at 08:00 UTC, which was 8

hours ahead of PDT.)

Each time the account was generated, each

party’s messages with Gutierrez were grouped, and

then organized in chronological order according to

whom last communicated with Gutierrez, with one

monumental exception.

Below as organized by party, from Facebook,

are the warrant proceeds from discovery. (Exhibit J,

PE 737-744 and PE 745-753)1.

To avoid submitting hundreds of pages, only the

transition page between each party is submitted,

81a

Note when a party (left column) communicated

with Gutierrez under the “1st Date” (center column)

it is in no discernable order, but the “Last Date” (right

column) is organized chronologically by Facebook.

10/31/12 Generation

Name

1st Date

Lauren

10/16/10 10/31/12

Morgan

4/14/11

10/30/12

[Jane Doe]

7/23/11

10/26/12

Audra

10/24/12

10/24/12(21:26)

Travis

9/2/11

10/24/12 (21:24)

Arbeiter

10/22/12

10/22/12(21:19)

Andrea

10/21/12 10/22/12(01:24)

Last Date

The October generated version was organized

chronologically by last date, in the right column:

10/31, 10/30, 10/26, 10/24, etc., (Exhibit J, PE 745753). There is nothing abnormal about the October

version.

[(Remainder ofpage intentionally left blank.)]

cutting out the unnecessary middle pages, as well as

preserving privilege.

82a

Below as organized by party, pursuant to the

warrant request sent to Facebook, is the November

generated version, obtained with the search warrants.

Note the “Last Paid’ (right column) again:

11/30/12 Generation

Name

1st Date

Lauren

10/16/10 11/27/12

[Jane Doe]

7/23/11

Sean

3/2/10 11/29/12

Morgan

4/14/11

Mobile

11/16/12 11/22/12

Stone

7/20/12 11/20/12

Travis

9/2/11

Last Date

11/30/12

11/28/12

11/16/12

The right column shows the order as: 11/27,

11/30, 11/29, 11/28, 11/22, 11/20, 11/16 (Exhibit J, PE

737-744).

Lauren Steinhaus’ messages were placed as #1

in the November generated version but should have

been #4. Lauren Steinhaus’ messages were placed out

of chronological order (Exhibit J, PE 738).

Evid. Code § 410 “As used in this chapter, ‘direct

evidence’ means evidence that directly proves a

83a

fact, without an inference or presumption, and

which in itself, if true, conclusively establishes

that fact.” [Emphasis added.]

There were approximately 9,000 pages of

discovery from Facebook when combining all versions

of Gutierrez and Jane Doe’s accounts. Every item in

those accounts was organized chronologically, except

for the messages to Lauren Steinhaus.

As an offer of proof, an expert would testify that

the computer program’s directive was to organize all

data chronologically, the program can only deviate

from that directive if a human commanded it to. But

it is common knowledge that a computer program will

not deviate from its parameters unless directed to by

a human. The fact that Lauren Steinhaus’ messages

to Gutierrez were placed out of chronological order

proves that a human at Facebook directed the

program to locate those messages and prioritize their

placement out of order.

Facebook Guidelines for Law Enforcement“We will search for and disclose data that is specified

with particularity in an appropriate form of legal

84a

process and which we are reasonably able to locate

and retrieve.” [Emphasis added.] (3 CT 653).

Facebook Information for Law Enforcement

U.S. Legal Process- “We disclose account records in

accordance

with...

the

federal

Stored

Communications Act (‘SCA’), 18 U.S.C. Sections 27012712”. The third bullet point states that access to

content will only be provided through a warrant (3 CT

652).

The messages with Lauren Steinhaus were

placed out of chronological order by Facebook, from

what should have been 4th chronologically to 1st

position; according to Facebook’s guidelines Lauren

Steinhaus’

messages

were

“specified

with

particularity” proven by the fact that they were “able

to locate and retrieve” Lauren Steinhaus’ messages

and place them out of chronological order; and

furthermore, per Facebook guidelines, they would

only locate Lauren Steinhaus’ messages if it was so

stated in “an appropriate form of legal process.”

Therefore, Facebook was told that the target

85a

communications

for

the

warrants,

were

the

established

that

communications with Lauren Steinhaus.

now

conclusively

Facebook was told by law enforcement that Lauren

Steinhaus was the “data” that was “specified with

particularity” in “an appropriate form of legal process”

i.e., the warrant as per the Stored Communication Act

18 U.S.C. § 2703(a) (a warrant is required to access

content of an electronic communication).

The only problem with this direct evidence as a

conclusive fact (Evid. Code § 410), is that Lauren

Steinhaus was not the alleged victim of Gutierrez.

Why did the police communicate to Facebook

that the individual to target was the complainant

involved in an internal affairs’ investigation from

Orange County?

Lauren Steinhaus was the victim of police

misconduct in Orange County and the complainant of

an internal affairs’ complaint, filed by Attorney

Arturo F.S. Gutierrez (SB# 232276) (petitioner) on

July 23, 2012 pursuant to Penal Code § 832.5; Cal.

86a

Const, art. I, § 3 (a) [petition government for redress

of grievances]; Cal. Const, art. I, § 28 (c)(l) [attorney

for crime victim seeking vindication of rights]; U.S.

Const. First Amendment [petition for redress of

grievances].

What are the odds that a computer program

would

deviate from its

directive

and out of

approximately 9,000 pages of data that is organized

chronologically

only place

one

person

out

chronological order?

The odds are astronomical.

Now...

the

what

are

odds

that

this

same

astronomically unlikely event resulted in the internal

affairs’

complainant’s

(Lauren

Steinhaus)

communications with Gutierrez being placed out of

chronological order? There are no odds to calculate

this being random, it can only be the result of

intentional human direction at Facebook.

Because

Facebook

states

their

law

enforcement guidelines, they will only do so through

“an appropriate form of legal process”, then the only

conclusion can be that law enforcement told Facebook

87a

that the warrants were for the communications

between Gutierrez and Lauren Steinhaus, (the

internal affairs’ complainant), because:

“The possession of a warrant by officers

conducting an arrest or search greatly reduces

the perception of unlawful or intrusive police

conduct.” [Emphasis added.] Gates at p. 236.

It is conclusive that the warrant itself was a lie,

obtained through the employment of multiple acts of

perjury and concealment of exculpatory evidence, all

factually unrebutted by the People, for the purposes

of gaining access to attorney-client privilege and as

additional evidence will demonstrate, for retaliation

for advocacy against the police.

Retaliation for

protected speech violates the First Amendment, see

Hartman, supra', Butz, supra', Nieves v. Bartlett

(2019) 587 U.S.__ ; Houston v. Hill, (1987) 482 U.S.

451; Perry v. Sindermann, (1972) 408 U.S. 593;

Johnson v. Avery, (1969) 393 U.S. 483; United States

v. Jackson, (1968) 390 U.S. 570; Griffin v. California,

(1965) 380 U.S. 609; NAACP v. Alabama, (1958) 357

U.S. 449; Speiser v. Randall, supra.

88a

“There is no question that speech critical of the

exercise of the State’s power lies at the verjr center of

the First Amendment.” Gentile v. State Bar of

Nevada, (1991) 501 U.S. 1030, 1034 (Gentile).

“A public employee might, for instance, use the

courts to pursue personal vendettas or to harass

members of the general public. That behavior could

cause a serious breakdown in public confidence in the

government and its employees.” [Emphasis added.]

Borough ofDuryea, Pa. v. Guarnieri, (2011) 131 S. Ct.

2488, 2496. “The right to petition traces its origins to

Magna Carta,” (id. at p. 2499) “The Declaration of

Independence of 1776 arose in the same tradition.”

(Id.) And “also played a central part in the legislative

debate on the subject of slavery in the years before the

Civil War.” (Id.) “[P]etitions by women seeking the

vote had a role in the early woman’s suffrage

movement.” (Id. at p. 2500) And “the civil rights

movement” (id.) “Litigation on matters of public

concern

may

facilitate

89a

the

informed

public

participation that is a cornerstone of democratic

society.” (Id.)

“No fraud is more odious than an attempt to

subvert the administration of justice.” Hazel-Atlas at

p. 251 (cone. opin. Roberts, J.). The rule has always

been: “Fraud vitiates everything.” United States v.

Throckmorton, (1878) 98 U.S. 61, 64 (quoting Tovey

v. Young (1702) Pr. Ch. 193).

90a

APPENDIX K

mtorraauon ror Law Enforcement Authorities | Facebook

Page 1 of 3

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Safety Center

Welcome

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Marxian

Information for Law Enforcement Authorities

Extra*

Teens. Soa»l Merta. and Pnvjcy. pom Roesdi

Philosophy

These operator®! guidelines art (or taw enforcement officials seeking records from

Comrmxilty

Facebook. for private party requests, Indudtng requests from <MI Bogans and criminal

defendants, visit: facebook.com/help/?page-lQ57. Users seeking information on thtir own

Tods

Safety and You

acoxjts an wii» Facebook's Download Tour Information' feature from their account

setting. See faceboek.coiTVhelp/?pase«16B30. Thb Information may diange at any time.

•Butmg' Ko Utttt Resonance *» Tesogen.

darmn boyd

dmkemalawi

Parents: IMesgnd Tax lots k SxBi t*».

These guidelines an also be downloaded m their eriglnat Engifeh as a POP.

US Legal Process Requirement*

We disdose accotrt records solely In accordance with our terms of service and appfieabla

law, induding the federal Stored Communtatlons Ad ('SCA'), I6U5.C Sections 27012712. Under US bw:

The Onche Ceiemaon Gaa The Fnrtfr (Mine

Safety tnamite

www.b5i.cvp

M tacetoofc Orfwse is Offense, Elkxx Hlb

• A valid subpoena Issued In connection wtti an cffidal cimlnaJ brvesttgatton is required

to compel the disclosure of basic subscriber records (defined in 18 U.S.C. Section 2703

fire Miens atm Ulylng, Susan Sweaa

(c)(2)), which may Indude: name, length of service, credit card Wormadon, email

address(e5), and a recent totfn/togout IP address(es), If available.

• A court order issued under 18 UiC Section 2703(d) Is required to compel the

Ocaraow CduxKn ftr the 0^8* toe. Jeo«

ONer

dfedoswe of certain records or other information pertaining to the account, rot

inducing contents of communkations, which may irOude message readers arri IP

addreses, In addKon to the basic subscriber records identified above.

Safety and Vou

• A aarchwarTant Issued under the procedures described In the Federal Rules of

Crtrtnal Procedure or eqiAvalent state warrant procedures upon a dewing of probable

case Is required to compel the dlsdosure of the stored contents of any account whidi

Teens

TewJw

may indude message* photos, videos, wall posts, and location Information.

• We interpret the national searity letter provision as epetal to Facebook to require the

production of Drty 2 categories of Information: name and lervth of service.

International LepU Process Requirements

We disdose account records solely fci accordance with our terms of service and applicable

law. A Mutual Legal Assistance Treaty request »r letter rogatory may be required to compel

thedsdowreof the contents of an acawit. Further Information e»i be found here:

fSceboolc.com/about/privacy/other.

Account Precorvadon

We will take steps to preserve account records in connectbn with official erfmina

investigattons for 90 days pending our receipt of formal legal process. You may expeditiously

Sibmlt forma! preservation requests through the law Enforcement Online Request System at

faeebook.com/rmrds, or by email, fax or mail as indicated below.

Emergency Requests

In responding to a matter UrvoMng Imminent harm to a child or re* of death or serious

physiol injury to any person and requiring dadosre of Information wttiou delay, a tow

enforcement cffidal may submit a request through the law Enforcement Online Request

System at facebook.com/recDrds. Important note: We win rot review or respond to

messages sent to thfs email address by non-law enforcement officials. Users aware of an

emergency situation shotfd immedfotety and directly contact local law enforce m

em offidals.

Child Safety Hatter*

We report all apparem toflanees of child etptttation appearing on our site from arrywtere b

the world to the National Center for Ktsdng and Exploited OiQJren (NCMEC), induemg

ament cfowi to our attention by government requests. itCHEC coordinates with the

Wemattonal Certer for MlsSng and Exploited CMdren and few enforcement authorities from

around the work!. If a request relates to a child exploitation or safety matter, phase specify

those cfrumSances (and indude relevant fOtEC report identifiers) in tf» requet to ereue

that we are able to address these matters cxpedftioiafy and effectively.

https://www.facebook.com/safety/groups/law/guidelines/

91a

8/6/2014 6 52

Information lor Law bnlorccment Authorities | Facebook

Page 2 of 3

Data Retention and Availability

W« wSI search for and disclose data that Is specified vrtrh particuiaritv in an appropriate form

of legal process and which we are reasonably able Co locate and retrieve. We do not retain

data for law i

s we receive a valid preservation request brfore a

user has deleted that content from out service.

Details about data end account deletion can be foerd in our Data use Policy

{Caeeboofccom/pollcy.php), Statement of Rights and ResponsfHBIes

(facetxwk.comAenra.php), and Help Carter (facebook.com/help/7faQ-22e562B975S5674).

Form of Requests

We will be unable to graces overty broad or vague requests. All requests mud (Certify

requested records with particularity and Include the foeowing:

• The name of the Issuing authority, badge/ID nun*er of response*; agent, email

address from a law-erforcemem domain, and direct contact phone number.

• The email address, user ID number (tictp;//t . facebook.cca/prof1le. php?

id-ioopooaxxwocotx) or username (http://wvv. facebook. eem/uacrnaao) of

the Facebook profile.

User Consent

If a law enforcement official Is seeking Information about a Facebook user who has provided

consent for the official to access or obtain the users account Wormatton, the user should be

directed to obtain that information on their own from their account. For «rocrt content,

such as messages, photos, videos and wall posts, users can access Facebookb ‘Download

Your Information' feature from their account settings. See faecbook.com/heW?

page-18830. Users can also view recent IP addresses m their Account Settings under

Security SettingVAenve Sessions. Users do not have acres to historical TP Infcm nation

without legal preoess.

notification

On polcy ts to notify people who use our service of requests for then Information prior to

disclosure unles we ere prohibited by few from doing so or In exceptional dreumstanres,

such as dtitd eptottation cases, emergencies or when notice would be counterproductive.

Law enforcement officials who beteve that notification would Jeoparfize an Investigation

should obtain an appropriate court order or other appropriate process establishing that

neflee ts prrottbttfid. If your data request draws attention to an ongoing violation of our

terms of tse, we w!B take action to prevent further abuse, including actions that may notify

the iser that we are aware of their misconduct

Testimony

Facebook does not provide expert testimony support In addition, Facebook records are seffauthenticating pursuant to law and should not require the testimony of a records a^todun.

If a special form of certncadoo 1$ required, please attach a to your records request

We may seek rekntxnement for costs In responding to requests for (nfomaoon as provided

try law. These fees apply on a per account bass. We may also charge additional fees for

costs incurred In responding to unusual or burdensome requests.

We may waive these fees In matters Investigating potential ham to chidren, Facebook and

otr users, and emergency requests.

Submission of Requests

Law enforcement officials may use theta* Enforcement Ortfne Request System at

fbcebook.com/records for the submission, tracking and processing of requests.

Please note that a government-toned email address & required to access tte law

Enforcement Online Request System. You may also submit requesa by email or fax

as Misted below.

(man

reoords9fb.com

fax

https://www.facebook.com/safety/groups/law/guiddines/

92a

8/6/2014653

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.