Petition for Writ of Certiorari — Oscar Amezcua Cabrera, Petitioner v. California

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OSCAR AMEZCUA CABRERA , PETITIONER

v.

STATE OF CALIFORNIA, RESPONDENT

ON THE PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA,

SIXTH APPELLATE DISTRICT

PETITION FOR WRIT OF CERTIORARI

ARTHUR DUDLEY

California State Bar Number 056921

PAGE & DUDLEY

Attorneys at Law

605 Center Street

Santa Cruz, California 95060-3804

(831) 429-9966

(831) 427-2132 (fax)

adudley@psdlaw.com (email)

Counsel of Record for Petitioner

OSCAR AMEZCUA CABRERA

QUESTIONS PRESENTED FOR REVIEW

1. In the context of the dying declaration exception of the hearsay rule, where that

declaration is otherwise testimonial hearsay within the ambit of the Sixth Amendment constitutional

principles set forth by this court in the case of Crawford v. Washington, 541 U.S. 36 (2004), is there

an exception to those constitutional principles where the hearsay exception was a well accepted

common law hearsay exception at the time of the adoption of the Sixth Amendment of the United ©

States Constitution?

2. Is there is a violation of due process of law under the Fifth and Fourteenth Amendments

where during a pretrial police interview of a major prosecution witness the interviewing law

enforcement officer tells that witness “[w]ell right now you can help yourself just kind of, like, lend

not even truth but lend like the story of what was going on so we know that we’re on the right track,”

and “I don’t know how -- what your thoughts are between now or what are your feelings towards me

but but obviously we want a successful prosecution’?

TABLE OF CONTENTS

_ Page

QUESTIONS PRESENTED FOR REVIEW ................00000 00 eee i

TABLE OF AUTHORITIES 1.0.2.0... ccc eee eee ee eee eens iii

OPINION AND ORDER BELOW ........ 00... cece cece eee eee nee 1

JURISDICTIONAL STATEMENT 2.2.0... 0-0: cect e eee ete ese nee 1

PERTINENT CONSTITUTIONAL PROVISIONS INVOLVED........... 1

STATEMENT OF THE CASE «2.2.2.0... c cece cece eee ner eee eee 2

STATEMENT OF THE FACTS ........... 02.00 ee eens 4

REASONS FOR GRANTING CERTIORARI ........ 0... cee eee eee 6

DISCUSSION 1.2.0.0... cece eee eee ee eee eee teen ence neces 7

1. There is No “Well Excepted Hearsay Exception”

to the Constitutional Testimonial Hearsay Principles

Set Forth by this Court’s Case of Crawford v.

_ Washington, 541 U.S. 36 (2004)........ 0-1 e eee eee eee eee 7

2. The Due Process Violation for Outrageous

Governmental Misconduct. .........-. 0.00 eee cnet ee ences 11

3. Precluding Witness 7 from Being a Witness

Due to Outrageous Governmental Misconduct ............-...- 22

CONCLUSION 2.20... ccc ccc ccc ect eee nt ee n eens 23

APPENDIX “A” - Opinion of the California Court of Appeal, Sixth Appellate District

APPENDIX “B” - Order of the California Supreme Court Denying Petition for Review

-ii-

TABLE OFAUTHORITIES

FEDERAL CASES CITED Page

Crawford v. Washington

541 U.S. 36 (2004)... cece eee cence ee ences 6, 9, 11

Davis v. Washington

547 U.S. 813 (2006) 2... cc cece eens 9,11

Michigan v. Bryant .

562 ULS. 344 (2011)... ccc ccc cee teen cee nneenes 9, 10

Rochin v. California

342 U.S. 165 (1952)... e teen eeeaee 17

United States v. Russell

A11 U.S. 423 (1973) 2.0 ee ccc cee een eee eees 17

United States v. Santana

6 F.3d I (1st Cir. 1993) 2... cece cect eect nee eeee 19

United States v. Wade

388 US. 218 (1967) 2... ccc cee cece ete nee rees 16

Barber v. Superior Court

24 Cal.3d 742 (1979) 2... cece cence cence 19

Boulas v. Superior Court

188 Cal.App.3d 422 (1986) 2.2... cece cece cere teen tetas 19,21

Fults v. Superior Court

88 Cal_App.3d 899 (1979) 2.2.0... cee eee ccc cee eee eens 16

In re Lifschutz :

2 Cal.3d 415 (1970) 2... cence eee eee 16

Morrow v. Superior Court

30 Cal_App.4th 1252 (1994) 2... ccc cece ete eee reece 18,19

People v. Coulter

209 Cal.App.3d 506 (1989) 2.0... eee eee eee eee eee 16

“iti-

People v. Gionis

9 Cal 4th 1196 (1995)... eee eee cess eeeereee 16

People v. Monterroso

34 Cal.4th 733 (2004)... cece ence cece eee n ee eeeeeees 10

People v. Moore

57 Cal.App.3d 437 (1976)... cece cece eee ee nee eee e cence 19, 21

People v. Ruthford

- 14 Cal.App.3d 399 (1975) 2... cece ccc cece cece cece tee eee eens 16

People v. Smith

31 Cal.4th 1207 (2003)... 0... cece eeee eee e ee eeeeens 18,19

People v. Wesley

224 Cal App.3d 1130 (1990)... cece cece cece e nee e ete enenveeees 18, 20

Rider v. Superior Court

199 Cal.App.3d 278 (1988) 0... eee ccc ce ccc cence teen neeetnnee 16

People v. Defore

242 N.Y. 13 (1926) 2.2. ccc cee ee tee e tet eeneeee 21

Fifth Amendment ........ 0... cc cece cee cece eee e ere reece ete eseeeens 1,6

Sixth Amendment .......0 0.00. c ccc ete ec eee cence eer eneeeeeneeee 1, 6,9

Fourteenth Amendment .........0.0.. 0.00 ccc cece cee ene e nee e et eee eens 1,6

FEDERAL STATUTE

28 ULS.C. § 1257 (8) 2 ccc eee cence eee e ete e ee neteeee 1

-iv-

CALIFORNIA STATUTES

Penal Code, section 137, subdivision (c)........... 0... c cece eee eee

Penal Code, section 186.22, subdivision (b)(1)..............20 0 eee eee

Penal Code, section 186.22, subdivision (f) . .

Penal. Code, section 187, subdivision (a)....

Penal Code, section 190.2, subdivision (a)(22)... 2.2.0... cece eee eee

Penal Code, section 667, subdivision (a)(1) . .

Penal Code, section 667, subdivisions (b)-(i) .

Penal Code, section 667.5, subdivision (a) . . .

Penal Code, section 12022.53, subdivision (b)

Penal Code, section 12022.53 subdivision (c)

Penal Code, section 12022.53 subdivision (d)

15, 20

2,3

OPINION AND ORDER BELOW

The unpublished written opinion of the California Court of Appeal, Sixth Appellate District,

filed on June 28, 2019, affirming ajudgment of conviction entered against petitioner Oscar Amezcua

Cabrera in Santa Cruz County Superior Court Case Number F17051 appears as Appendix “A”.

The unreported order of the California Supreme Court filed on October 10, 2019, denying

a petition for review in connection with the written opinion of the California Court of Appeal, Sixth

Appellate District, filed on June 28, 2019, appears as Appendix “B”.

JURISDICTIONAL STATEMENT

The unpublished written opinion of the California Court of Appeal, Sixth Appellate District,

affirming the judgment of conviction was filed on June 28, 2019.

The unpublished order of the California Supreme Court denying the petition for review was

filed on October 9, 2019.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1257 (a).

PERTINENT CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Fifth Amendment:

“No person . . . shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due

process of law([.]”

_ United States Constitution, Sixth Amendment:

“Tn all criminal prosécutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him[.]”

United States Constitution, Fourteenth Amendment, Section 1:

“No State shall . . . deprive any person of life, liberty, or property, without

due process of law[.]”

STATEMENT OF THE CASE

On October 19, 2015, an information was filed in the Superior Court of the State of

California, County of Santa Cruz, charging petitioner in count 1 with murder in violation of

subdivision (a) of section 187 of the California Penal Code.' As to that offense petitioner was

charged with the following special allegations and enhancements: the firearm enhancements under

the provisions of subdivisions (b), (c) and (d) of section 12022.53; the special circumstance

allegation in subdivision (a)(22) of section 190.2 seeking life without possibility of parole for being

an active participant in a criminal street gang as defined in subdivision (f) of section 186.22 where

the murder was carried out to further the activities of the criminal street gang; the criminal street

gang enhancement under subdivision (b)(1) of section 186.22; two “strikes” under the provisions of

subdivisions (b) through (i) of section 667 (the“three-strikes” law of the State of California); two

prior serious felony convictions under the provisions of subdivision (a)(1) of section 667; and one

prison prior violent felony conviction seeking a three year enhancement under the provisions of

subdivision (a) of section 667.5. (9CT 2321-2324.)

On October 22, 2015, petitioner was arraigned upon the information, entered a plea of not

guilty to the charge, and denied all of the special sentencing allegations and enhancements. (9CT

2391-2392.)

On September 20, 2016, a multi-week jury trial commenced in petitioner’s case. At that time

1. Hereinafter, unless otherwise indicated, all section references are to the California Penal

Code.

2. Hereinafter all references to the Clerk’s Transcripts on Appeal to the California Court

of Appeal, Sixth Appellate District, will be designated by the letters “CT” with the applicable

volume number immediately preceding those letters. Similarly, all references to the Reporter’s

Transcripts on Appeal to the California Court of Appeal, Sixth Appellate District, will be designated

by the letters “RT” with applicable volume number immediately preceding those letters.

2

an amended information was filed that added an additional “strike” under the provisions of

subdivisions (b) through (i) of section 667 (the“three-strikes” law pf the State of California); deleted

an alleged prior serious felony conviction under the provisions of subdivision (a)(1) of section 667;

and added one prison prior violent felony conviction seeking a three year enhancement under the

provisions of subdivision (a) of section 667.5. (19CT 4893-4896.)

On September 22, 2016, petitioner was arraigned upon the amended information, entered

a plea of not guilty to the charge, and denied all of the special sentencing allegations and

enhancements. (20CT 4965.)

On December 1, 2016, the jury returned a verdict finding petitioner guilty of the offense of

first degree murder, and also found the following special allegations to be true: the firearm

enhancement under the provisions of subdivision (d) of section 12022.53; the criminal street gang

enhancement under subdivision (b)(1) of section 186.22; and the special circumstance allegation in

subdivision (a)(22) of section 190.2 pertaining to a sentence of life without possibility of parole for

being an active participant in a criminal street gang as defined in subdivision (f) of section 186.22

where the murder was carried out to further the activities of the criminal street gang. As to the issue

of the prior convictions, which issue earlier had been bifurcated from the issues determined by the

jury in the just mentioned verdict form, petitioner waived jury trial on the issue of the prior

convictions which were to be determined by the court at the time of sentencing. (22CT 5656-5658.)

On February 24, 2016, the trial court addressed the issue of the prior convictions and found

all of the prior convictions to be true except for finding that a juvenile adjudication was not to be a

“strike.” The trial court then imposed judgment and sentence. Petitioner received a sentence of life

in prison without parole with regard to the first degree murder conviction, along with an additional

sentence of 25 years to life as to the firearm enhancement under the provisions of subdivision (d) of

section 12022.53 and a 5 year prior conviction enhancement under the provisions of subdivision

(a)(1) of section 667. All other sentencing enhancements were imposed but stayed. (22CT 5704-

5707, 5777-5778.)

On February 24, 2016, petitioner timely filed a notice of appeal from the judgment of the

superior court. (22CT 5781.)

STATEMENT OF THE FACTS

The specific facts surrounding the death of Joe Cabrera are quite concise. Those facts are as

follows:

Around 7:00 P.M., on March 13, 2006, petitioner, in a vehicle, showed up at the home of

Edouard Tzimbal located in an area near Larkin Valley Road in Santa Cruz County. That area of the

county can best described as semi-rural. At that time Joe Cabrera was already at Tzimbal’s house

working onacar in Tzimbal’s garage. Petitioner stayed at Tzimbal’s premises for about 45 minutes.

C4RT 3383-3384; ISRT 3520, 3543-3547.)

. Just before petitioner left Tzimbal’s premises, petitioner indicated that he was going back

into town. At that point Joe Cabrera asked petitioner if he could go with him. Petitioner said,

“yeah.” Tzimbal then went into his house. (15RT 3520-3523.)

Later, around 8:45 P.M., on March 13, 2006, Edgar Vazquez and Ruben Nunez were in a

vehicle together traveling in the area where Buena Vista Road and Larkin Valley Road intersect

which was about one and a half miles to two miles away from Tzimbal’s house at which time they

saw a man (later identified as Joe Cabrera) along the side of the road staggering to get up and

covered with blood. (1SRT 3276-3277, 3543.) Vazquez got out of the vehicle he was driving to help

this man. Vazquez shined a light on the man and saw two bullet holes on the man, one of which was

on his neck behind one of his ears. (ISRT 3277-3278.) Vazquez called 911. (SRT 3277-3278.)

During that 911 call, the 911 operator asked Vazquez to ask the injured man who had shot him.

Vazquez asked the man, “Do you know who did it?” The man said the name Oscar Cabrera. (15RT

3281-3282; 20CT 5114.)

Shortly thereafter, a person who very familiar with petitioner (referred to at trial as Witness

7), was listening on a police scanner and heard over the scanner that someone was killed and that

person mentioned shortly before he died the name Oscar Amezcua Cabrera. (29RT 7006-7007,

7120.) Witness 7 then called petitioner and told petitioner what was going on and what was up.

Petitioner replied that he was heading home. Witness 7 then told petitioner that would not be a good

idea. Petitioner then said that he had to go home because his old lady was tripping on him and he

had to go home. Witness 7 then told petitioner that he (petitioner) should head in another direction

and went on to tell petitioner what had happened and what he (Witness 7) had heard on the scanner,

and that they (the police) were going to his house to pick him up because they (the police) knew what

happened, they (the police) knew what he did, and they (the police) know he shot that guy.

According to the Witness 7, petitioner said thank you in Spanish. (29RT 7121-7123.)

Thereafter, on August 1, 2013, petitioner was apprehended by the authorities in Mexico.

(19RT 4579-4605.)

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REASONS FOR GRANTING CERTIORARI

1. This court needs to resolve the issue of whether, in the context of the dying

declaration exception of the hearsay rule, where that declaration is otherwise testimonial

hearsay within the ambit of the Sixth Amendment constitutional principles set forth by this

court in the case of Crawford v. Washington, 541 U.S. 36 (2004), there is an exception to those

constitutional principles where the hearsay exception was a well accepted common law hearsay

exception at the time of the adoption of the Sixth Amendment of the United States

Constitution.

2. This court needs to resolve the issue of whether there is violation of due process of

law under the Fifth and Fourteenth Amendments where during a pretrial police interview of

a major prosecution witness the interviewing law enforcement officer tells that witness “[w]ell

. right now you can help yourself just kind of, like, lend not even truth but lend like the story of

what was going on so we know that we’re on the right track,” and “I don’t know how -- what

your thoughts are between now or what are your feelings towards me but but obviously we

want a successful prosecution.”

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DISCUSSION

1. There is No “Well Excepted Hearsay Exception” to the Constitutional Testimonial

Hearsay Principles Set Forth by this Court’s Case of Crawford v. Washington, 541 U.S. 36

(2004):

The following relevant facts pertinent to this issue, which were agreed to by the defense and

the prosecution came from petitioner’s in limine motion number 16 filed in the trial court (20CT

4912-4914) and from trial court exhibit number 18 (20CT 5111-5118).

Commencing at about 8:50 P.M., on March 13, 2006, the Netcom dispatcher in Santa Cruz

County started receiving several 911 calls pertaining to “a man down” at the intersection of Larkin

Valley Road and Buena Vista Drive who was covered with blood. Apparently, several people, who

drove by this location, and who saw the man down on the ground covered with blood, called the 911

line, but did not stop.

Shortly thereafter, Edgar Vazquez and David Trahan, who were not from the Santa Cruz

County area, who were in Santa Cruz County to do some repair work on a security system at a

Ralph’s market in Watsonville, and who were lost, took a wrong turn and ended up at Larkin Valley

Road and Buena Vista Drive where. they discovered the man down on the roadway bleeding.

Vazquez got out the vehicle and later called 911. Trahan got out of the vehicle too, and then

proceeded to wave down cars behind them so those cars would avoid hitting the man down on the

ground.

Before ever calling 911, Vazquez asked the man down on the ground (later identified as Jose

“Joe” Cabrera) if he were “okay.” Joe Cabrera said, “I’ve been shot!” Several minutes after Vazquez

called 911, the 911 dispatcher asked Vazquez to ask the man down on the ground, “Who did it?”

Vazquez then asked the man if he knew who did this. Joe Cabrera nodded his head in a “yes” manner

and then “kind of mumbled” something. Then, Vazquez, pursuant to the request of the 911

dispatcher, again asked the man on the ground who did it. Joe Cabrera clearly said “Oscar,” but

mumbled the name “Cabrera.” Then, according to Vazquez, the man on the ground repeated the last

name, this time clearly saying “Cabrera.”

Inrelation to when Joe Cabrera said the name “Oscar Cabrera” during the 911 call, the record

reveals that at 1 minute and 30 seconds into the 911 call, the dispatcher asked the 911 caller

(Vazquez), “[c]an you ask him who did it”? No more than two seconds later, Vazquez asked Joe

Cabrera, “[dJo you know who did it?” Then, at 1 minute and 33 seconds into the 911 call, Vazquez

told the dispatcher, “[h]e said Oscar Cabrera” Thereafter, for the next 3 minutes of the 911 call,

which ended at 4 minutes 37 seconds after the 911 call was initiated by Vazquez, Joe Cabrera said

nothing more. In fact, at 2 minutes and 6 seconds into the 911 call, when Vazquez, at the request

of the 911 dispatcher, asked Joe Cabrera, “[w]here did he go?,” Vazquez told the 911 dispatcher,

“... he’s not answering.” At the end of the 911 call, Vazquez indicated that the police are there.

Deputy Mark Tritenbach of the Santa Cruz County Sheriff's Office was dispatched to the

scene at Larkin Valley and Buena Vista Road at 8:50 P.M., on March 13, 2006, with regard to aman

down on the roadway. Deputy Tritenbach arrived at the scene at about 8:55 P_M., five minutes after

the dispatch. When Deputy Tritenbach arrived at the scene he observed that the man’s clothing was

soaked in blood. The man appeared to have an injury on the right side of his neck. Deputy Tritenbach

proceeded to talk to the man. Initially, the man was sitting in the roadway mostly on his butt, but

leaning back toward his left side, with his feet out in front of him. As Deputy Tritenbach talked to

the man, the man kind of pushed himself up a little bit. The only thing the man said to Deputy

Tritenbach, which the man said over and over, was, “I’m dying. I need to get to a hospital. Ineed a

hospital. I’m dying.”

In the trial court, and the state appellate courts, petitioner raised a number of grounds why

the alleged dying declaration of Joe Cabrera was not admissible as an exception to the dying

declaration exception to the hearsay rule. The grounds were as follows: (1) there was no sense of

impending death when the statement mentioning petitioner’s name was made, (2) asubsequent belief

of impending death will not relate back to make the earlier statements competent, and (3) there was

a lack of competency of the hearsay declarant.

Over and above the above state law arguments raised by petitioner in all of the courts below,

there was the additional argument that the alleged dying declaration was inadmissible testimonial

hearsay with the principles established by this court in the case of Crawford v. Washington, supra,

541 US. 36. Specifically, this Court-held that the Confrontation Clause of the Sixth Amendment to

the United States Constitution bars the “. . . admission of testimonial statements of a witness who

did not appear at trial unless he was unavailable to testify, and the petitioner had had a prior

opportunity for cross-examination.” Supra, 541 U.S. at pp. 53-54; accord Davis v. Washington 547

U.S. 813, 821 (2006); see Michigan v. Bryant 562 U.S. 344, 353-354 (2011).

In other words, when a witness does not appear at trial, “testimonial” out-of-court statements

of that witness can only be admitted against a defendant at trial when the following two conditions

are met: (1) the witness/declarant is unavailable, and (2) the defendant has had a prior opportunity

to cross-examine the witness/declarant, Crawford v. Washington, supra, 541 U.S. 36, 51-53, 59, 68.

Next, it is clear that the statements in question that the prosecution, and all of the courts

below, characterized as a dying declaration were made by Joe Cabrera as a result of questions asked

by Vazquez that were the direct result of questions being propounded to Vazquez by, and suggested

by, a911 dispatcher. Under these circumstances the statements made by Joe Cabrera identifying his

alleged assailant as Oscar Cabrera come within the best workable definition of a “testimonial”

statement that was set forth by this Court in the case of Davis v. Washington, supra, 547 U.S. 813,

822 as follows: “Statements are nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the interrogation is to enable

police assistance to meet an ongoing emergency. They are testimonial when the circumstances

objectively indicate that there is no such ongoing emergency, and that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

Accord Michigan v. Bryant, supra, 562 U.S. 344, 356.

In this case by the time the dispatcher was talking to the 911 caller, the perpetrator clearly

had left the scene and there was no more imminent fear that the victim was going to receive any -

additional injuries or be in any greater danger than he already was at that time. At that point any and

all arguments that Joe Cabrera’s statements are a dying declaration presupposes that the interrogator

(in this case the 911 dispatcher) solely believes that the declarant (Joe Cabrera) is going to die and

that the statements are going to be needed to establish or prove in court in a criminal proceeding the

identity of the alleged assailant (i.e., the primary purpose of the questions by the dispatcher was to

establish or prove past events potentially relevant to later criminal prosecution). Obviously the

declarant is unavailable, and petitioner never has had an opportunity to cross-examine the assailant.

Under these circumstances, the Crawford rule is being violated, and for that reason alone the ;

statements in issue made by Joe Cabrera giving a name to his alleged assailant are constitutionally

inadmissible evidence.

However, in getting around this problem the Court of Appeal relied upon and cited to the

California Supreme Court case of People v. Monterroso, 34 Cal. 4th 743, 764 (2004) which stated

that “. . . if, as Crawford teaches, the confrontation clause ‘is most naturally read as a reference to

the right of confrontation at common law, admitting only those exceptions established at the time

of the founding,’ [citation], it follows that the common law pedigree of the exception for dying

10

declarations poses no conflict with the Sixth Amendment.” (See Appendix “A”, page 17.) However,

there is a fallacy in this reasoning.

Specifically, under the above quoted reasoning of the Monterroso case, which was followed

by the Court of Appeal in this case, every hearsay statement that would be admissible under a

hearsay rule exception established in the common law at the time of the enactment of the Sixth

Amendment would never violate the constitutional rules established by this Court in the Crawford

case even though the statement in question otherwise clearly meets the definition of a testimony

statement as established by this Court in the case of Davis v. Washington, supra, 547 U.S. 813, 822

quoted hereinabove. In short, all common law hearsay rule exceptions established in the common

law at the time of the enactment of the Sixth Amendment would “swallow up” the constitutional

principles established by this court in the Crawford case.

In other words, it would be to be illogical to assume that this Court in the 21st century ever

intended 21st century constitutional principles to be controlled by late 18th century common law

hearsay rule exceptions. Disregarding the late 18th century hearsay rules pertaining to the dying

declaration exception to the hearsay rule, and the illogical reasoning of the Monterroso case

mentioned above, the admission of the dying declaration hearsay statements in this case, as detailed

above, violates the Sixth Amendment constitutional principles established by this Court in the

Crawford case, and thus those hearsay statements were constitutionally inadmissible in this case.

Petitioner will acknowledge that this issue was left open and undecided by this Court in

Crawford v. Washington, supra, 541 U.S. 36, 55, footnote 6. Now is the time for this Court to

decide this issue.

2. The Due Process Violation for Outrageous Governmental Misconduct:

Prior to trial petitioner filed a motion to dismiss based upon outrageous governmental

11

misconduct. This motion to dismiss was brought upon the grounds that under the facts and

circumstances of petitioner’s case there was a violation of principles of due process of law and

fundamental fairness as result of outrageous law enforcement misconduct which occurred when a

law enforcement detective (Sergeant Roy Morales), in an initial interview of a person who, as a

result of that interview became an extremely material witness for the prosecution, specifically told

that person during that initial interview, “Twlell right now you can help yourself just kind of, like,

lend not even truth but lend like the story of what was going on so we know that we’re on the right

track,” and “J don’t know how -- what your thoughts are between now or what are your feelings

towards me but but obviously we want a successful prosecution.” (Italics added.) (11CT 2950-2982.)

At the hearing on that motion, it was agreed that the factual basis for that motion was the statement

of facts contained in that motion. (1SRT 505-507.) Thus, the following factual recitation comes

directly from that motion to dismiss (11CT 2971-2974).

On May 4, 2015, Assistant District Attorney Johanna Schonfield of the Santa Cruz County

District Attorney’ s Office, and Sergeant Roy Morales of the Santa Cruz County Sheriff's Office, met

with Witness 7 at the California correctional/prison facility where Witness 7 was serving time in

relation to an attempted murder conviction. The purpose of that meeting was to interview Witness

7 regarding information he may have pertaining to petitioner Oscar “BJ” Cabrera, and pertaining to

any knowledge Witness 7 may have with regard to the existence and the activities of what has been

described as the “Watsonville NF regiment” during the time Witness 7 may have been in that

“organization.” The interview with Witness 7 on May 4, 2015, lasted about 3 hours and 53 minutes.

For about the first hour and twenty-four minutes of the interview on May 4, 2015, the subject

matters of the interview with Witness 7 primarily consisted of asking Witness 7 about his own gang

history and gang involvement on the streets and in prison, including his involvement with the so-

12

called “Watsonville NF regiment”; the differences between gang activity in prison and gang activity

on the streets; his introduction to, and contacts over the years with, petitioner Oscar Cabrera; iow

he was “schooled” in the gang life, and who “schooled” him in that life, including what he learned

from petitioner Oscar Cabrera; his.-understanding of the chain of command in the Nuestra Familia

and his knowledge about people in that chain of command whom he actually had interacted with or

met; his knowledge of “NF regiments” in Sacramento and Vallejo; his own drug activities, including

his drug activities on behalf of the Nuestra Familia and the so-called Watsonville regiment; and how

he (Witness 7) had heard from his father that since about 2012, BJ (petitioner Oscar Cabrera) had

been asking questions about his (Witness 7’s) whereabouts.

Then, at about | hour and 24 minutes into the interview of May 4, 2015, Assistant District

Attorney (ADA) Schonfield said to Witness 7, “... you mentioned ... after BJ left that Julio was

kind of put in charge? There was concern that you might take over? [H]ow much do you know why

he had to take off?” Witness 7 replied, “Who?” ADA Schonfield said, “BJ.” Witness 7 responded,

“[b]ecause he killed somebody.” ADA Schonfield then asked Witness 7, “[w]hat do you know about

that?” Witness 7 said, “[a] lot.” ADA Schonfield then asked Witness 7, “[{f]rom who?”

In response to ADA Schonfield’s question “[f]rom who,” Witness 7, in pertinent part,

” replied, “I know everything. I know everything because I was - I was on the phone. I’m the one that

had - you have to understand as that time I had Watsonville mapped out. I had everything. I had

people at standard [sic?]. I had people here. I had people there. Everybody calling in to know

everything so I knew everything that was goin’ on, when it was going to go and everything.”

Sergeant Morales then asked Witness 7, “[s]o you think that’s why he’s so concerned of

where you’re at and he’s asking?” Witness 7 responded, “[b]ecause I’m the one who told him to get

the hell out of here. I said, ‘They are on the way to your house right now.’”

13

ADA Schonfield then asked Witness 7, “[s]o you talked to him right after?” Witness 7

responded, “I talked to him a few times.” Sergeant Morales then asked Witness 7, “[b]efore too?”

Witness 7 replied, “I know where he went. I know where he was. He didn’t go directly to Mexico.”

At that point, Sergeant Morales and Witness 7 had a brief conversation about whether Witness 7,

back in the early part of 2006, was using a regular cell phone or a Nextel phone. After that brief

conversation, ADA Schonfield asked Witness 7, “[d]id you know whether he had a beef with that

guy before then?” Witness 7 responded by saying, “No. That was the reason why it happened. Can

I use the bathroom?”

After the bathroom break, Sergeant Morales had a brief discussion with Witness 7 about the

last time he (Sergeant Morales) saw Witness 7. Sergeant Morales then explained to Witness 7 that

“[t]he reason we’re here is we’re doing a time line of everybody that was part of the regiment so like

there are certain people - to be honest-with you there are certain people that got to us okay I got

information. I want to talk. Yet a lot of people when based on the information that we have is a lot

of those cats are coming forth because we did not like the way he was doing stuff, he’s a bully and

all of this other shit, right? Envy. Envy.”

Sergeant Morales then told Witness 7 that-“[s]o we sat down and we’re like, okay, who can

we fucking talk to that we believe and that is legit and who will want to help themselves and stuff

like that.” Immediately after that, apparently in reference to ADA Schonfield by way of using the

indefinite pronoun “she,” Sergeant Morales proceeded to say to Witness 7, “[t]o be honest with you,

if she asked me if you were one of my first people to come to talk to -- [.]” Witness 7, at that point,

interrupted Sergeant Morales in mid-sentence and asked the sergeant, “[w]hat is -- what is that --

what does that mean help myself?”

Immediately after that inquiry by Witness 7, Sergeant Morales said the following: “Well right

14

now you can help yourself just kind of, like, lend not even truth but lend like the story of what was

going on so we know that we’re on the right track. Right? So that’s basically -- that’s why we’re here

is just to kind of understand what was goin’ on -- on at that time which I think I kind of did. Um,

you’re kind of verifying what I had in my head at the time because I’ve forgotten a lot over the years.

But I mean we want -- and I don’t know how -- what your thoughts are between now or what are

your feelings towards me but but obviously we want a successful prosecution.”

It is petitioner’s position that the trial court had to dismiss the charges in his case due to the

outrageous law enforcement misconduct that occurred when Sergeant Morales specifically told

Witness 7 the following: (1) “[w]ell right now you can help yourself just kind of, like, end not even

truth but lend like the story of what was going on so we know that we’re on the right track,” and (2)

“T don’t know how -- what your thoughts are between now or what are your feelings towards me but

but obviously we want a successful prosecution.” In short, Sergeant Morales was indicating to

Witness 7 that he could lie (i.e., “lend not even truth”), and that the prosecution wanted a conviction

(i.e., “we want a successful prosecution”).

The first statement by Sergeant Morales that Witness 7 could help himself by “lend not even

truth” was a crime in violation of subdivision (c) of section 137 which, in pertinent part, makes it

a misdemeanor for a person to “. . . knowingly induce[] another person . . . to give false material

information pertaining to a crime to, or to withhold true material information pertaining to a crime

from, a law enforcement official[.]”

Clearly, Sergeant Morales was engaging in that type of criminal behavior (i.e., knowingly

inducing another person to give false material information pertaining to a crime to a law enforcement

official) when he told Witness 7 “[w]ell right now you can help yourself just kind of, like, lend not

even truth but lend like the story of what was going on so we know that we’re on the right track.”

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(italics added for emphasis.)

Additionally, this statement by Sergeant Morales to Witness 7 (i.e., lend not even truth but

lend like the story of what was going on) contravenes “the historically important state interest in

facilitating the ascertainment of truth in connection with legal proceedings.” See In re Lifschutz, 2

Cal.3d 415, 432 (1970) ; Rider v. Superior-Court, 199 Cal App.3d 278, 283 (1988); Fults v. Superior

Court, 88 Cal.App.3d 899, 904 (1979).

Moreover, the statement in issue made by Sergeant Morales undisputably conflicts with

established ethical duties of law enforcement officers which have been described as follows: “Law

enforcement officers have the obligation to convict the guilty and to make sure they do not convict

the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment

of the true facts surrounding the commission of the crime.” United States v. Wade, 388 U.S. 218,

256 (1967) (concurring and dissenting opinion of Justice White); accord People v. Gionis, 9 Cal.4th

1196, 1227, fn. 4 (1995) (concurring and dissenting opinion of Justice Kennard); People v. Coulter,

209 Cal.App.3d 506, 515, fn. 4 (1989).

Admittedly, as the California Supreme Court noted in People v. Ruthford, 14 Cal.3d 399, 405

(1975), “[i]t is a common practice for law enforcement officers or prosecutors to offer certain

inducements for the testimony of prosecution witnesses since this is often the only means of

obtaining crucial evidence.” However, to tell a potential prosecution witness, such as Witness 7 in

this matter, that he can help himself by lending “not even truth but lend like the story of what was

going on[,]” is not a legitimate inducement for testimony. As just noted above, the statement in issue

(i.e., lend not even truth but lend like the story of what was going on) not only constitutes a crime,

but it also contravenes the historically important state interest in facilitating the ascertainment of

truth in connection with legal proceedings, and it violates established ethical duties of law

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enforcement officers (1) to make sure they do not convict the innocent, and (2) to be dedicated to

making the criminal trial a procedure for the ascertainment of the true facts surrounding the

commission of the crime.

The second statement by Sergeant Morales that “obviously we want a successful prosecution”

(italics added for emphasis), which in reality means we want a conviction, just adds, in an

exponential manner, to the outrageous law enforcement misconduct in this case as just set forth

hereinabove. It not only induces one not to tell the truth to a law enforcement officer, but it too (1)

contravenes “the historically important state interest in facilitating the ascertainment of truth in

connection with legal proceedings,” and (2) conflicts with the established ethical duties of law

enforcement officers “to make sure they do not convict the innocent” and that law enforcement

officers “. .. must be dedicated to making the criminal trial a procedure for the ascertainment of the

true facts surrounding the commission of the crime.”

Next, the concept that outrageous law enforcement misconduct can result in a due process

violation leading to the dismissal of a criminal case was noted by this Court in the case of United

States v. Russell, 411 U.S. 423, 431-432 (1973). In that case, citing to this Court’s earlier case of

Rochin v. California, 342 U.S. 165 (1952), this Court said, “. .. we may some day be presented with

a situation in which the conduct of law enforcement agents is so outrageous that due process

principles would absolutely bar the government from invoking judicial processes to obtain a

conviction[.]” United States v. Russell, supra, 411 U.S. 423, 431-432.

As for some guidance as to what is a violation of due process of law in the context of

outrageous law enforcement misconduct, the following language taken from this Court’s case of

Rochin v. California, supra, 411 U.S. 423, 431-432, which was cited with approval by this Court in

this Court’s case of United States v. Russell, supra, 411 U.S. 423, 431-432, is also instructive:

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“[D]ue process of law [is not] a matter of judicial caprice. The

faculties of the Due Process Clause may be indefinite and vague, but

the mode of their ascertainment is not self-willed. In each case ‘due

process of law’ requires an evaluation based on a disinterested inquiry

pursued in the spirit of science, on a balanced order of facts exactly

and fairly stated, on the detached consideration of conflicting claims,

[citation], on a judgment not ad hoc and episodic but duly mindful of

reconciling the needs both of continuity and of change in a

progressive society.

“Applying these general considerations to the circumstances

of the present case, we are compelled to conclude that the

proceedings by which this conviction was obtained do more than

offend some fastidious squeamishness or private sentimentalism

about combating crime too energetically. This is conduct that shocks

the conscience. ...

“Tt has long since ceased to be true that due process of law is

heedless of the means by which otherwise relevant and credible

evidence is obtained. This was not true even before the series of

recent cases enforced the constitutional principle that the States may

not base convictions upon confessions, however much verified,

obtained by coercion. These decisions are not arbitrary exceptions to

the comprehensive right of States to fashion their own rules of

evidence for criminal trials. They are not sports in our constitutional

law but applications of a general principle. They are only instances of

the general requirement that States in their prosecutions respect

certain decencies of civilized conduct. Due process of law, as a

historic and generative principle, precludes defining, and thereby

confining, these standards of conduct more precisely than to say that

convictions cannot be brought about by methods that offend ‘a sense

of justice.’”

As the California Court of Appeal said in Morrow v. Superior Court, 30 Cal.App.4th1252,

1259 (1994), “[t]he power of a court to dismiss a criminal case for outrageous conduct arises from

the due process clause of the United States Constitution.”

Admittedly, the concept of outrageous law enforcement misconduct being the basis for a

dismissal of a criminal action frequently arises in the context of an expansion of, or a supplement

to, the principles relating to a petitioner’s claim of entrapment by law enforcement officers. See

People v. Smith, 31 Cal.4th 1207, 1223-1227 (2003); People v. Wesley, 224 Cal. App.3d 1130, 1138,

18

1142-1144 (1990); see also United States v. Santana, 6 F.3d 1, 3-6 (1st Cir. 1993).

However, cases that have found a due process violation entitling a defendant to a dismissal,

not involving issues that are akin to entrapment, are as follows: Barber v. Municipal Court, 24 Cal.3d

742, 759-760 (1979) [intrusion, through trickery, of a law enforcement agent in confidential attorneyclient conferences]; Boulas v. Superior Court, 188 Cal-App.3d 422, 429 (1986) [governmental

authorities contacted the defendant outside the presence of his attorney to advise him to fire his

attorney]; and People v. Moore, 57 Cal-App.3d 437, 441 (1976) [the district attorney’s office (1)

made no effort to inform the defendant’s attorney of its arrangements with the defendant, (2) debased

the attorney-client relationship by disparaging the professional capabilities of the defendant’s

attorney, and (3) encouraged the defendant to tell his attorney nothing of their dealings].

As the California Court of Appeal explained in Boulas v. Superior Court, supra, 188

Cal.App.3d 422, 429, “[w]hen conduct on the part of the authorities is so outrageous as to interfere

with an accused’s right of due process of law, proceedings against the accused are thereby rendered

improper. [Citations.] Dismissal is, on occasion, used by courts to discourage flagrant and shocking

misconduct by overzealous governmental officials in subsequent cases. [Citations.]”

Additionally, as the California Court of Appeal observed in Morrow v. Superior Court, supra,

30 Cal.App.4th 1252, 1263, footnote 4, “[c]ases of outrageous conduct and the appropriate sanctions

... are sui generis. Each case must be decided on its own facts.”

Next, in determining whether a law enforcement officer has engaged in outrageous

misconduct entitling an accused to a dismissal two important factors to be consider are (1) whether

the police themselves engaged in criminal or improper conduct repugnant to a sense of justice, and

(2) whether the record reveals simply a desire to obtain a conviction with no reading that the police

motive is to prevent further crime or protect the populace. See People v. Smith, supra, 31 Cal.4th

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1207, 1226; People v. Wesley, supra, 224-Cal.App.3d 1130, 1144. Both of these factors clearly exist

in this case.

One factor occurred when Sergeant Morales clearly and unequivocally communicated to

Witness 7 that he (Sergeant Morales) was not looking for the truth when Sergeant Morales said to

Witness 7, “[w]ell right now you can help yourself just kind of, like, lend not even truth but lend like

the story of what was going on so we know that we’re on the right track.” (Italics added for

emphasis.) Not only did this statement by the sergeant show a total disdain for the truth, it was, as

already discussed hereinabove, a violation of subdivision (c) of section 137 that in pertinent part

makes it a crime for any person, which obviously would include a law enforcement officer, to “. .

. knowingly induces another person . . . to give false material information pertaining to a crime to,

or to withhold true material information pertaining to a crime from, a law enforcement official[.]”

It also contravened the historically important state interest in facilitating the ascertainment of truth

in connection with legal proceedings, and it violated established ethical duties of law enforcement

officers (1) to make sure they do not convict the innocent, and (2) to be dedicated to making the

criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the

crime.

The other factor (i.e., a simply a desire to obtain a conviction with no reading that the police

motive is to prevent further crime or protect the populace) occurred when Sergeant Morales told

Witness 7, “I don’t know how -- what your thoughts are between now or what are your feelings

towards me but but obviously we want a successful prosecution.” (Italics added for emphasis.)

Obviously, the words “we want a successful prosecution” mean “we want a conviction.”

Admittedly, the someone may try to argue that petitioner may be an individual who may be

guilty of the charged crime and will, in the words of Justice Cardozo, “go free because the constable

20

has blundered.” People v. Defore, 242 N.Y. 13, 21 (1926). However, this is not a case in which the

constable appears merely to have blundered. Boulas v. Superior Court, supra, 188 Cal.App.3d 422,

434. The law enforcement officer in issue by saying he did not “even need truth,” committed a crime

in doing so, violated the historically important state interest in facilitating the ascertainment of truth

in connection with legal proceedings, and violated the ethical duties of law enforcement officers (1)

to make sure they do not convict the innocent, and (2) to be dedicated to making the criminal trial

a procedure for the ascertainment of the true facts surrounding the commission of the crime.

Additionally, that same law enforcement officer overtly revealed a desire to obtain a conviction with

no reading that his motive was to prevent further crime or protect the populace when he said

“obviously we want a successful prosecution.”

As the California Court of Appeal stated in People v. Moore, supra, 57 Cal.App.3d 437, 442,

“[d]ue process is not a yardstick of definite value, but rather is an embodiment of the traditional

notions of fair play and justice.” Those traditional notions of fair play and justice did not occur in

this case due to the statements in issue made by Sergeant Morales.

Lastly, Witness 7 was not a superficial witness for the prosecution. An alleged piece of

significant information that Witness: 7 related to Sergeant Morales and ADA Schonfield in the

interview of May 4, 2015, was the content of a purported phone call he (Witness 7) made to

petitioner on the evening of the shooting of Joe Cabrera, apparently minutes after the shooting of Joe

Cabrera, and moments after he (Witness 7) had heard from an associate that the name of Oscar

Cabrera was heard ona scanner. In substance, at least according to Witness 7, that purported phone

conversation between him (Witness 7) and petitioner went as follows:

Witness 7: What’s up? What’s happening?

Oscar: Nothing. I’m on the way to my pad. The old lady is trippin.

I’ve got to get there.

2]

Witness 7: Well maybe you shouldn’t go there.

Oscar: Why not?

Witness 7: You know why.

Oscar: No I don’t, you tell me.

Witness 7: Because I’m not going to put it on the phone like that.

You need to get your shit and head the over way.

Oscar: Nah. It is going to be good.

Witness 7: Nah. I’m going to fucking tell you. They know you

killed that dude and they are on the way to your house

right now.

Oscar: All right. Gracias. I will be talking to you soon.

Under these circumstances Witness 7 was a “star” witness for the prosecution, and his

statements only, fully came to light, after the occurrence of the outrageous governmental misconduct

in this case discussed above. Accordingly, based upon grounds of due process of law, the trial court

erred in failing to dismiss the case against petitioner due to that outrageous governmental

misconduct, and the opinion of the California Court of Appeal in petitioner’s appeal underling this

petition was contrary to the law on this point.

3. Precluding Witness 7 from Being a Witness Due to Outrageous Governmental

Misconduct:

Based upon the same outrageous governmental misconduct behavior identical to what has

been discussed in the issue immediately hereinabove, petitioner filed an in limine motion in the trial

court, at least, to preclude Witness 7 from being called as a witness at petitioner’s trial. 20CT 4951;

Petitioner’s in limine motion number 20. That in limine motion was denied by the trial court, and

the opinion of the California Court of Appeal in petitioner’s appeal underling this petition is also

contrary to the law on this point. For all of the same reasons discussed in the issue immediately

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hereinabove, the trial court erred in not, at minimum, precluding Witness 7 from being a witness at

petitioner’s trial and again the opinion of the California Court of Appeal in petitioner’s appeal

underling this petition was contrary to the law on this point.

CONCLUSION

For the reasons discussed hereinabove, petitioner Oscar Amezcua Cabrera respectfully

requests this court to grant this petition for writ of certiorari.

DATED: January 5, 2020

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APPENDIX “A”

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