Petition for Writ of Certiorari — Frander Salguero, Petitioner v. California

Supreme Court briefNov 28, 2023

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Frander Salguero,

Petitioner,

California,

Respondent.

On Petition for a Writ of Certiorari to the

California Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Frander Salguero

Petitioner pro se

c/o Law Office of

Arturo F. Gutierrez

iooo Town Center Drive

Suite 300

Oxnard, California 93036

GCGLaw@Gmail.com

(805) 351-3900

QUESTIONS PRESENTED

“The Legislature finds and declares that post

conviction discovery promotes the fair administration

of justice in seeking to assure that innocent persons

do not remain unjustly incarcerated” (California

Statutes 2018 Chapter 482, Section 1)

Justice Holmes: “For those who agree with me,

no distinction can be taken between the Government

as prosecutor and the Government as judge.”

(Olmstead v. United States, 277 U.S. 438, 470 (1928))

“[SJtate action within the purview of the

Fourteenth Amendment... governs any action ...

‘whether through its legislature, through its courts, or

through its executive or administrative officers.”’

(Mooney v. Holohan, 294 U.S. 103, 113 (1935))

The questions presented are:

1. Whether the effect on due process remains

unchanged as to Brady’s holding, “suppression by

the prosecution of evidence favorable to an accused

upon request violates due process where the

evidence is material” after the prosecutor

concealed the evidence at trial and suppresses it

again upon request after conviction.

2. Whether a state court has discretion under the

Fourteenth Amendment to assist the “suppression

by the prosecution of evidence favorable to an

accused upon request” when presented proof the

existing “evidence is material”.

3. Whether arbitrary state judicial procedures

impairing the ability to prove one is innocent

conform with due process while intending to

deprive this Court of a record to review.

4. Whether a due process sanction of dismissal

applies to situations like the present.

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related

to the case in this Court within the meaning of Rule

14.1(b)(iii), all in California:

• People v. Salguero, No. MA066642, Superior

Court of Los Angeles County. Judgment entered

Oct. 12, 2016.

• People v. Salguero, No. B278249, Second District

Court of Appeal, Division Five. Judgment entered

May 31, 2018.

• People v. Salguero, No. S249843, California

Supreme Court. Review denied Aug. 29, 2018.

• Salguero u. Sullivan, No. CV 19-07414-CJC (AS)

U.S. District Court for the Central District of

California. Judgment entered June 10, 2020.

• People v. Salguero, No. MA066642, Superior

Court of Los Angeles County. Order of denial

entered Sept. 15, 2022.

• Salguero v. Superior Court (I), No. B323872,

Second District Court of Appeal, Division Five.

Order denying as moot entered Nov. 4, 2022.

• People v. Salguero, No. MA066642, Superior

Court of Los Angeles County. Order granting in

part and denying in part entered Nov. 18, 2022.

• Salguero v. Superior Court (II), No. B325061,

Second District Court of Appeal, Division Five.

Order denying mandamus entered Jan. 20, 2023.

• Salguero v. District Attorney (III), No. B325333,

Second District Court of Appeal, Division Five.

Order denying mandamus entered Feb. 24, 2023.

• Salguero v. Superior Court (IV), No. S278394,

California Supreme Court. Order denying review

entered Apr. 12, 2023)

iii

• People v. Salguero (V), No. B328253 Second

District Court of Appeal, Division a. Order

dismissing appeal entered Jun. 14, 2023.

• Salguero v. District Court of Appeal (VI), No.

S278944, California Supreme Court. Order

denying mandamus entered Jul. 19, 2023.

• People v. Salguero (VII), No. S281123 California

Supreme Court. Order denying review entered

Aug. 30, 2023.

• Salguero v. District Attorney et al. (VIII), 23- _

_United States Supreme Court. Petition for

certiorari, filed concurrently.

• In re Frander Salguero (IX), 23United States Supreme Court. Petition for

mandamus, filed concurrently.

TABLE OF CONTENTS

Questions Presented.....................................

Statement of Related Proceedings............

Authorities Cited...........................................

Relevant Opinions Below.............................

Petition for a Writ of Certiorari...............

Jurisdiction...................................

Constitutional Provisions and Statutes ...

Statement of the Case....................................

Constitutional Issues Raised.......................

Reasons of Granting the Petition...............

I. Because California ensured that this

Court should be blocked from accessing

the facts, recognizing the intended protection

and power will prevent significant

litigation.............................................................

II. Only this Court can bring us back to the

intended freedom from oppression that

we have gradually sunk into............................

III. A Brady violation is a core Sixth

Amendment violation, requiring per se

reversal for denial of the community’s

constitutional rights to adjudge.......................

IV. Sanctions have always shown to be

the only teacher. Is not that the very

purpose of the criminal law?............................

Summation............

Conclusion.........................................

Appendix A

Orders in Case...................................

Appendix B

Essential Information

42a

92a

TABLE OF AUTHORITIES

Cases

Banks v. Dretke,

540 U.S. 668 (2004).

13, 16, 20, 24, 36, 40

Blair v. Hamilton,

32 Cal. 49 (1867)....

Brady v. Maryland,

373 U.S. 83 (1963)...

.8, 9, 12, 13, 16, 20, 22, 23,

25, 26, 28-30, 32, 36-38

Briggs v. Brown,

3 Cal.5th 808 (2017)................................

Bryant v. Zimmerman,

278 U.S. 63 (1928)..................................

Catlin v. Superior Court,

51 Cal.4th 300 (2011).............................

10, 11

Cuyler v. Sullivan,

446 U.S. 335 (1980).................................

7, 37

Daniels v. Williams,

474 U.S. 327 (1986).................................

Donnelly v. DeChristoforo,

416 U.S. 637 (1974)................

Duncan v. Louisiana,

391 U.S. 145 (1968)..........................

31, 32

House v. Warden,

547 U.S. 518 (2006)

IAR Sys. Software, Inc. v. Superior Court,

12 Cal.App.5th 503 (2017)....................

In re Steele,

32 Cal.4th 682 (2004).............................

Jackson v. Virginia,

443 U.S. 307 (1979).............

Jencks v. United States,

353 U.S. 657 (1957)..............

28, 39

Katzberg v. Regents of the

University of California,

29 Cal.4th 300 (2002)..........

Kennedy v. Superior Court,

145 Cal.App.4th 359 (2006).

20, 21

Kyles v. Whitley,

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

.8, 9, 16, 29, 40

Live Oak Assn. v. R.R. Comm,

269 U.S. 354 (1926)..............

Mooney v. Holohan,

294 U.S. 103 (1935)..............

i, 7, 16, 19, 37

Napue v. Rlinois,

360 U.S. 264 (1959)

9, 16, 19, 22, 25, 37, 38

Olmstead v. United States,

277 U.S. 438 (1928)

People v. Davis,

226 Cal.App.4th 1353 (2014)

People v. Martinez,

36 Cal.3d 816 (1984)...............

People v. McNulty,

95 Cal. 594 (1892)

Raley v. Ohio,

360 U.S. 423 (1959)................

Ramos v. Louisiana,

140 S. Ct. 1390 (2020)............

33-35

vii

Rinaldi v. Yeager,

384 U.S. 305 (1966)........

Rosen v. United States,

245 U.S. 467 (1918)

Schlup v. Delo,

513 U.S. 298 (1995).........

Schwarz v. Superior Court,

111 Cal. 106 (1896)..........

Strickland v. Washington,

466 U.S. 668 (1984).........

7, 9, 32, 33, 39

Trede v. Superior Court,

21 Cal.2d 630 (1943).......

Trump v. Vance,

140 S. Ct. 2412 (2020).....

United States v. Agurs,

427 U.S. 97 (1976)...........

29, 37

United States v. Burr,

25 F. Cas. 30 (1807).........

26, 28

United States v. Gaudin,

515 U.S. 506 (1995).........

United States u. Hubbell,

530 U.S. 27 (2000)..........

United States v. Nobles,

422 U.S. 225 (1975).........

United States u. Reid,

53 U.S. 361 (1851)

United States v. Ruiz,

536 U.S. 622 (2002)......

29, 38

viii

Vitek v. Jones,

445 U.S. 480 (1980)..........................

Ward v. Dunne,

136 Cal. 19 (1902).............................

Wardius v. Oregon,

412 U.S. 470 (1973)............................

28, 39

Wolff u. McDonnell,

418 U.S. 539 (1974)............................

Weatherford v. Bursey,

429 U.S. 545 (1977)..........................

Wiggins v. Smith,

539 U.S. 510 (2003)........

Constitution of the United States

Article I_________

Article II.................

2, 31, 34, 36

Article III............

Article IV................

Article V

31, 39

Article VI..............

Article VII......

Amendment VI..... 16, 26, 30, 31, 34, 35, 37-39

Amendment XIV... ...................... i, 16, 19, 31, 37

Amendment XVIII

United States Code

Title 28, § 1257(a).............

California Penal Code

§ 1019...

§ 1020...

§ 1054.1

§ 1054.9

............................

3, 11

........3, 11

................................................... 3, 12

3, 8, 10, 12, 15, 16, 17, 18, 20, 23

§ 1096

§ 12370))

§ 1247k...

§ 1248....

§ 1405(c).

§ 1405(k).

1, 4, 17-19

......... 5, 18

.........5, 18

.5, 9

18, 19

California Rules of Court

Rule 3.1304(c).........

Rule 8.532 (b)(2)(A).

Other References

California Statutes 2018

Chapter 482, Section 1..........

Declaration of Independence

6, 10

1,6

RELEVANT DECISIONS BELOW

All decisions are unpublished:

People v. Salguero S281123...................

People v. Salguero B328253...................

Salguero v. Superior Court B325061....

People v. Salguero MA066642

Docket Nov. 18, 2023..............................

Solicitation for Opposition in Response.

Denial Order............................................

43a

45a

51a

52a

54a

56a

PETITION FOR A WRIT OF CERTIORARI

Frander Salguero respectfully petitions for the

writ of certiorari directed to the California Supreme

Court in People v. Salguero S281123, App. 43a.

JURISDICTION

On Aug. 30, 2023, the California Supreme

Court issued an order denying review of a single

justice’s order dismissing a timely filed appeal, Cal.

Pen. Code, § 1237 (b). Cal. Rules of Court, Rule 8.532

(b)(2)(A) (denial final upon entry—no rehearing

possible.)1

Nov. 28, 2023, is 90 days from the denial order.

This petition is from a separate line of review in the

state courts than the false evidence matters. This

pertains to suppression of proven exculpatory

evidence and arbitrary denial of due process.

Jurisdiction is invoked by 28 U.S.C. § 1257(a).

1 Unless clearly federal, all future enactments are referencing

California.

CONSTITUTIONAL PROVISIONS

AND STATUTES

Constitution of the United Stated of America

Article III in petition at 36

Article VI in petition at 39

Amendment VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be

confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his

defence.

Amendment XTV

SECTION. 1. ... nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

United States Code

28 U;S.C. § 1257

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be

had, may be reviewed by the Supreme Court by writ

of certiorari ... where any... right, privilege, or

immunity is specially set up or claimed under the

Constitution... [of] the United States.

California Codes

Penal Code

Pen. Code, § 681

No person can be punished for a public offense,

except upon a legal conviction in a Court having

jurisdiction thereof.

Pen. Code, § 689

No person can be convicted of a public offense unless

by verdict of a jury, accepted and recorded by the

court, by a finding of the court in a case where a jury

has been waived, or by a plea of guilty.

Pen. Code, § 1019 in petition at 11

Pen. Code, § 1020 in petition at 11

Chapter 10. Discovery

Pen. Code, § 1054

This chapter shall be interpreted to give effect to all of

the following purposes:

(a) To promote the ascertainment of truth in trials by

requiring timely pretrial discovery.

Pen. Code, § 1054.1

The prosecuting attorney shall disclose to the

defendant or his or her attorney all of the following

materials and information, if it is in the possession of

the prosecuting attorney or if the prosecuting attorney

knows it to be in the possession of the investigating

agencies:

(e) Any exculpatory evidence.

Pen. Code, § 1054.9

(a) In a case in which a defendant is or has ever been

convicted of a serious felony or a violent felony

resulting in a sentence of 15 years or more, upon the

prosecution of a postconviction writ of habeas corpus

or a motion to vacate a judgment, or in preparation to

file that writ or motion, and on a showing that good

faith efforts to obtain discovery materials from trial

counsel were made and were unsuccessful, the court

shall, except as provided in subdivision (b) or (d),

order that the defendant be provided reasonable access

to any of the materials described in subdivision (c).

(b) Notwithstanding subdivision (a), in a case in which

a sentence other than death or life in prison without

the possibility of parole is or has ever been imposed, if

a court has entered a previous order granting

discovery pursuant to this section, a subsequent order

granting discovery pursuant to subdivision (a) may be

made in the court’s discretion. A request for discovery

subject to this subdivision shall include a statement by

the person requesting discovery as to whether that

person has previously been granted an order for

discovery pursuant to this section.

means materials in the possession of the prosecution

and law enforcement authorities to which the same

defendant would have been entitled at time of trial.

(d) [Pertains to physical evidence and not relevant

here but requires showing good cause.]

Title 9. Appeals in felony cases

Pen. Code, § 1235

(a) Either party to a felony case may appeal on

questions of law alone, as prescribed in this title and

in rules adopted by the Judicial Council. The

provisions of this title apply only to such appeals.

(b) An appeal from the judgment or appealable order

in a felony case is to the court of appeal for the district

in which the court from which the appeal is taken is

located.

Pen. Code, § 1237

An appeal may be taken by the defendant from both

of the following:

(b) From any order made after judgment, affecting the

substantial rights of the party.

Pen. Code, § 1247k

The Judicial Council shall have the power to prescribe

by rules for the practice and procedure on appeal, and

for the time and manner in which the records on such

appeals shall be made up and filed, in all criminal

cases in all courts of this state.

Pen. Code, § 1248

If the appeal is irregular in any substantial particular,

but not otherwise, the appellate court may order it to

be dismissed.

CHAPTER 11. Errors and Mistakes in

Pleadings and Other Proceedings

Pen. Code,§ 1405

the court may order the prosecutor to make all

reasonable efforts to obtain, and police agencies and

law enforcement laboratories to make all reasonable

efforts to provide, the following documents that are in

their possession or control, if the documents exist:

(2) Copies of evidence logs, chain of custody logs and

reports, including, but not limited to, documentation

of current location of biological evidence, and evidence

destruction logs and reports.

(3) If the evidence has been lost or destroyed, a

custodian of record shall submit a report to the

prosecutor and the convicted person or convicted

person’s counsel that sets forth the efforts that were

made in an attempt to locate the evidence. If the last

known or documented location of the evidence prior to

its loss or destruction was in an area controlled by a

law enforcement agency, the report shall include the

results of a physical search of this area. If there is a

record of confirmation of destruction of the evidence,

the report shall include a copy of the record of

confirmation of destruction in lieu of the results of a

physical search of the area.

California Rules of Court

Rule 3.1304

A party may give notice that he or she will not appear

at a law and motion hearing and submit the matter

without an appearance unless the court orders

otherwise. The court must rule on the motion as if the

party had appeared.

Rule 8.532

(b) Finality of decision

(2) The following Supreme Court decisions are

final on filing:

(A) The denial of a petition for review of a

Court of Appeal decision;2

2 Advisory Committee Comment: Subdivision (b). Subdivision

(b)(2)(A) recognizes the general rule that the denial of a petition

for review of a Court of Appeal decision is final on filing.

STATEMENT OF THE CASE

1. Frander Salguero was sentenced to life in

prison for two terms on Oct. 12, 2016, based on a

“contrived a conviction through the pretense of a trial

which in truth [wa]s but used as a means of depriving

a defendant of liberty through a deliberate deception

of court and jury by the presentation of testimony

known to be perjured.” (.Mooney u. Holohan, 294 U.S.

103, 112 (1935)) Proven and stands unrefuted.

The state of California saddled him with a 27time state stipulated incompetent attorney Thomas

Stanley, suspended again five days before being

assigned out to trial, without any warning to Frander

of this known peril. (Strickland v. Washington, 466

U.S. 668, 692-93 (1984); Cuyler v. Sullivan, 446 U.S.

335, 343-45 (1980) state caused prejudice is

presumed). Three days after being sentenced to life in

prison for being the victim of a deadly assault,

according to the affidavit signed before trial by the

prosecutor, the actual suspension of the incompetent

attorney began.

Then was appointed an appellate attorney that

raised insufficiency of the evidence on appeal, without

reviewing the exhibits on appeal. Whom asked

Stanley if he was incompetent, and Stanley said no.

In many cases, as defendant points out, proof of

counsel’s lack of diligence to discover evidence

will demonstrate that counsel was constitu

tionally inadequate... [but] cannot reasonably be

expected to argue his own ineffectiveness; his

client should not pay a penalty because of the

attorney's unwillingness to assert his own

incompetence.

People v. Martinez, 36 Cal.3d 816, 825-826 (1984)

Which is significant because: “Tom Stanley,

Deputy State Public Defender, for Defendant and

Appellant.” (Id., at 818) The man she asked was the

attorney that created that very rule; in a former life

when he was brilliant.

Disbarred by the Ninth Circuit in 2001, and

suspended multiple times by both state and federal

courts thereafter, sic transit gloria.

Frander then paired up with a person holding

a bar card that direct filed a federal habeas petition

without doing any investigation on insufficiency of the

evidence — then after admitting to the federal

magistrate “this is my first Habeas Corpus petition”

he abandoned his client without filing a traverse,

leading to a dismissal with prejudice.3

In August of 2021, an actual attorney showed

up to represent Frander. The end of October obtained

the initial discovery from the post-conviction handling

prosecutor, Mr. Lara. By December of 2021 a massive

volume of known false evidence and concealed Brady

evidence was proven and ascertained.

Investigation continued, then on May 16, 2022,

upon obtaining said affidavit declaring Frander the

victim of a deadly assault signed by the trial

prosecutor, (R.520, 524-25) a 101-page postconviction

discovery motion was filed per Pen. Code, § 1054.9,

supported by 322 pages of exhibits (R.62-485), that

proved 46 items specially recognized under Brady v.

Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley,

514 U.S. 419 (1995) of which nine had been obtained

in part from Lara and part independently, before

filing.

3 2:19-cv-07414-CJC-AS Document 16,p.2:6-11

The motion proved the existence of 36 Brady

items or classes of items and two more items relevant

to Strickland.

Just like this Court felt, counsel believed “this

case merits ‘favored treatment,’ ... cases in which the

record reveals so many instances of the state’s failure

to disclose exculpatory evidence are extremely rare.”

(.Kyles at 455, Stevens, J., concur-ring.) Thus, a

significant volume of proof was submitted to the trial

court, because when one is dealing with the innocent,

it is no time to hold back. Appended to this petition is

the listed 38 items only, with their legal and factual

support as presented to the lower court, it spans 56

pages in the appendix.

To summarize rapidly the procedural history

before getting into specifics: Lara explained a family

emergency required leaving the country; then

provided item #3; in that process it showed he acted

in good faith, but police had not; the trial court was

updated as to both with a request for Pen. Code,

§1405(c) (evidence logs) (R.486-93); devoid of

opposition the trial court denied all (App.56a R.494);

upon receiving a motion to reconsider the denial based

on outdated law (R.497-530), solicitation for

opposition was made (App.54a R.531); mandamus

sought; at the hearing solicitating opposition the court

reluctantly agreed to grant reconsideration, denied

the contested item and continued the matter to hear

from the concealer as to all the rest (App.95a); the

court of appeal was notified, the Napue line was born;

not desiring to bore the Court with specifics but

gamesmanship was afoot and as permitted by law on

this uncontested matter being continued to be

contested, a motion for nonappearance was submitted

along with an objection to hearsay. “The court is in

receipt of a notice of nonappearance pursuant to Rules

of Court, rule 3.1304(c) for Arturo Gutierrez who is the

attorney for this appellate issue.” The actual motion

as well as other critical items were not in the record

on appeal, addressed more in depth later. That was

said to start the hearing held on Nov. 18, 2022.

2. Under Pen. Code, § 1054.9, to be entitled to

this postconviction discovery there is one triggering

act.

It simply says that “on a showing that good faith

efforts to obtain discovery materials from trial

counsel were made and were unsuccessful, the

court shall ... order” discovery. The language

could not be plainer: If that showing is made, the

defendant is entitled to discovery.

Catlin v. Superior Court 51 Cal.4th 300, 305

(2011)

After highlighting prior failed efforts evinced

by returned letters and returned email. A showing

was made of additional effort, on page 5 of the motion

(R.66-67):

[U]tilizing a commercial real estate website,

counsel was able to verify an address listing the title

owner as “Stanley, Thomas A & A M Trust” as the

grantee to a quitclaim deed from grantors “Thomas &

Anita Stanley” on January 18, 2016, for a residential

property at 4461 Sherman Oaks Cir. Sherman Oaks,

CA ([R.183]). Searching State Bar Court records, an

additional email address was located (Tom_alan_

stanley@yahoo.com) ([R.181]). Thereafter, on Septem

ber 23, 2021, a formal demand .... letter addressed to

the home was acknowledged by the United States

Postal Service as “Delivered, Left with Individual” at

that location on Sept. 27, 2021 ([R.188-190] tracking

codes per address). ... the second email address used

was not returned ([R.191]). Stanley has never made

an attempt to contact, or effort to assist or even an

acknowledgement of habeas counsel or the requests.

(See App.l02a for the significant more detail and

effort.)

“The language could not be plainer: If that

showing is made, the defendant is entitled to

discovery.” (Catlin, supra)

The trial court, who repeatedly stated it had

“read and considered” the motions, as to the above and

the 100 times the name “Stanley” appeared in the

motion and exhibits, found:

“And I would note that none of the motions to

compel had anything to did [sic] with Mr.

Stanley.” (RT. 1210-25-26)

If that were true, then the court was statutorily

prohibited from proceeding, for lack of subject matter

jurisdiction. Especially on an issue that was claimed

as privileged, despite the motion proving conclusively

the privileged had been waived by the holder (R.9294), but unlawfully set in place by Mac.

“I do agree with you that the connection

between the eSCAR [suspected child abuse report4]

reporting party and the case at hand with the

discovery is very tenuous. Mr. Gutierrez has made a

lot of assertions in this over 400-page motion and lays

out a lot of discovery that I'm not entirely sure -- no. I

am sure - is not relevant to this motion. That he has

laid out a potential defense does not change the

discovery requirements on the D.A.

[Pen. Code, §1019 (“The plea of not guilty puts

in issue every material allegation of the accusatory

4 It is unclear why that region refers to it with an “e”, possibly

electronic but unsure.

pleading...”) Id., §1020 (“All matters of fact tending to

establish a defense ... may be given in evidence under

the plea of not guilty.”) Id., §1054.1(e) (“Any

exculpatory evidence.”) Id., §1054.9(c) (“defendant

would have been entitled at time of trial.”]

But to accommodate Mr. Gutierrez, the court is

going to order the district attorney to turn over the

reporting party name on the eSCAR. I know that to do

so on a general basis would have a chilling effect. But

given that we're post conviction, this is a habeas

matter, and there are 1054.9 obligations, and I am

going to allow Mr. Gutierrez to have that last name. I

do find that that is the last of the discovery that needs

to be turned over to Mr. Gutierrez given this motion.”

(RT.1211:4-20)

Graciously, the defense was allowed one item of

Brady material; not knowing the court granted two,

as two reports were discussed R.80-94, one previously

fully concealed and one heavily redacted.

The Legislature decreed entitlement with the

command shall. And explained to all the California

courts involved, that only on a second request does the

legislature grant the courts discretion Pen. Code, §

1054.9(b).

All these California courts seem to believe they

hold discretion to allow the defense to have Brady

materials or withhold them. Thus, it seemed prudent

to ask this Court.

3. Some of the aspects proven therein, from the

clues left by the trial prosecutor Steven Mac.

72207* 10/97 (600077) 265A/P <000>

/2238* URN REQUEST (600077)

X,2607,419,CR,V,SALGUERO,KENIA,„F,H,371„

<000>

/2238 • URN 0 015-10552-2607-419” (R.284)

Everything that needs to be said, was just said.

The Court can GVR this cause.

This Court made clear that state games with

due process are prohibited, ‘“the prosecution can lie

and conceal and the prisoner still has the burden to...

discover the evidence,’... A rule thus declaring

‘prosecutor may hide, defendant must seek,’ is not

tenable in a system constitutionally bound to accord

defendants due process.” (Banks v. Dretke 540 U.S.

668, 696 (2004)) The prosecutor hid, Frander sought,

and found, then moved as afforded by the California

Legislature, to seek speedy release for being innocent.

Seeking compulsory process under a state statutory

right to compel production of 36 exculpatory items or

classes of items and two items specific to prior trial

counsel. The California judiciary have actively

participated in denial of due process rights, Brady.

Incidentally, those random letters and

numbers pertained to item #3, received after the

motion was filed from Lara. While the above may not

read clearly, it actually says, I am an exonerating

police report that was concealed for seven years. My

name is 419, and my concealment is why you were

convicted. R.516-518

All counsel had to do was sift through every

fragment of discovery, locate Los Angeles County

Sheriffs Department radio codes & manuals and

learn to read radio and then it was clear as day.

But that was not the reason that task began.

Rather it pertained to hunting down the concealed

major exculpatory witnesses, identified here:

“‘INCIDENT,5392 BLUE SAGE DR,PLM X 50TH ST

E/AV R-8,P ,91 IB >>>> , 11 DMH, JOSEY„661

4920620,DMH RESPONDED TO A CALL WHER,E

FATHER’” (R 283)

The above communicates, I am Frander’s

therapist who was on scene to assist him. But I will be

used as argument to prove his falsely claimed guilt

related to 419 in Mac’s closing:

... and brings that one doctor in to court as a

defense. Not the wife. Not the daughter. Right?

Not anyone else that saw him that day. Not

anyone else that saw him those four or five days

afterwards to say he is crazy. No. He brings in

that doctor. (RT.83:2-6; R.408-409)

“There is also talk about meth. Sure, George

and Mr. Salguero used meth before in the past.... And

then, you know, who is an expert on that? George,

because he uses it. He's been convicted of it.”

(RT.97:27-28; 98:7-8)

The prosecutor turned the probation violating

trafficker into the victim and expert for giving

Frander so much methamphetamine that it caused

psychosis with auditory hallucinations. While Mac

was busy calling Frander crazy, repeatedly, he was

also concealing that George was an unmedicated

schizophrenic.

Item #13 (R.128, App. 119a) pertained to the

Sheriffs drug regimen given to George while in

custody recently to treat the severely disabling mental

disease. Plus, item #11 “true and correct name of the

psychiatric hospital(s)” (App. 116a) that the other

purported victim stayed at, whom is an actual

sociopath. At sentencing, Mac’s communication was

recalled. “George was advised by the D.A. that he part

ways with Mark because the incident had affected

Mark’s mental state to where he was admitted to a

mental institute. George was not made aware of the

location of the mental institute only that Mark was in

one.” ([R.370]) R.126, App. 116a

Mac conveyed he complied with his duties to

provide discovery at trial (RT.1202:26-28). And the

trial court found the D.A.’s office had provided

everything required, (RT.1212:20-22). Which both

must have included in their statements item #26:

‘“George had a lot of meetings. I actually only went to

the court — or to meetings with he and the DA twice, I

think. And all the rest of them, he would tell me about

them, but he would go on his own. Or he and Mark

would go.’ ([R.416]) That was Elston Freeman

speaking with the habeas investigator, he was a

central background figure in the case” “when asked

about the DA, George advised, ‘No. I talked to them

actually when — Before the court case we were talking

on a regular basis for a good month and a half,’

([R.371]) and later, ‘Every time that I spoke to them,

it was in regards to the actual stabbing itself, only’

([R.372])” (R.139, App. 137a-138a)

Eyewitness statements to witness coaching,

was admitted to by the prosecutor by stating he

complied, and the trial court found this was provided.

That was only a discussion of six items, three

were provided. In total 35 items remain outstanding.

Including two that expressly had to do with Stanley,

which the trial court found were provided and

simultaneously found none of the motions had

anything to do with Stanley.

While acknowledging entitlement “1054.9,

which is what this motion is being filed under, entitles

Mr. Gutierrez to any discovery that would have been

available to him at the time of trial.” (RT1202:14-16)

Then the trial court noted Lara “had turned over

essentially everything that was in the D.A.’s

possession. Do you have anything else to add about

that?” (Id.: 18-22) Asking the concealer if he concealed.

His concealing answer was no.

CONSTITUTIONAL ISSUES RAISED

4. Again a rapid summary, after the Nov. 18,

2022, denial a mandamus was sought a second time,

denied declaring no abuse of discretion (App.51a) for

a court to deprive Brady materials; review sought and

an Answer and reply filed, then denied Apr. 12, 2023.

Prior a timely notice of appeal was filed as a back-up,

thus precluding earlier review before this Court. The

intermediate court dismissed without briefing or legal

cause, claiming only mandamus was permitted.

Under California law, that made the prior denial in

excess of jurisdiction.

Trial court level.

The motion was titled, “Motion to Compel

Discovery Pursuant to Penal Code § 1054.9”. Without

any opposition having been filed, the trial court

denied:

“The court has read and considered the defendant’s

request to compel discovery in this post-conviction

matter pursuant to Penal Code section 1054 and

Brady v. Maryland, received on March 26, 2010. The

only provision in Penal Code section 1054 allowing for

post-conviction discovery to a defendant in a criminal

case is section 1054.9...” App.56a.

Brady was “definitely brought to the court’s

attention.” (Live Oak Assn. v. R.R. Comm, 269 U.S.

354, 357 (1926)) At least the trial court resolved the

federal invocation. See also R.70, 76, or any of the

other 50 times “Brady” appears in the motion; Kyles

only 14, Banks 17, Mooney 18, Miller 27, Napue 29,

Ritchie 17 and Fourteenth Amendment 10, but Sixth

Amendment 17.

The greater number reflects the degree of belief

that witnesses in one’s favor directly correlates to the

ability to effectively assist.

Intermediate court.

A notice of appeal is to be interpreted broadly.

The intermediate court dismissed the appeal without

legal authority, its reason was: “The order entered by

the superior court on November 18, 2022 is not an

appealable order. {In re Steele (2004) 32 Cal.4th 682,

692.)” (App.45a)

The cited case addressed capital cases:

Thus, we conclude that when no execution is

imminent, a person seeking specific discovery

under section 1054.9 should first file the motion

in the trial court that rendered the judgment...

But if necessary, after the trial court has ruled,

either party may challenge that ruling by a

petition for writ of mandate in the Court of

Appeal.

In re Steele, 32 Cal.4th 682, 692 (2004)

“It merely reflects the reality that successive

habeas corpus petitions in capital cases present

problems distinct from those in noncapital cases.”

(Briggs v. Brown, 3 Cal.5th 808, 845 (2017))

State highest court.

Under state law, it is beyond resolved that what

occurred here is impermissible. R.28:

“There is no constitutional right to an appeal;

the appellate procedure is entirely statutory and

subject to complete legislative control.” {Trede v.

Superior Court 21 Cal.2d 630, 634 (1943))

Pen. Code, § 1237(b) (“From any order made

after judgment, affecting the substantial rights of the

party.”) “The Legislature has not found that a

convicted defendant has a substantial right to seek

post-judgment discovery, except when section

1054.9 applies.” (People v. Davis 226 Cal.App.4th

1353, 1368, (2014) emphasis added.)

And at R.29:

Since 1872, except for subdivision enumer

ation, the text is identical: “3. From any order made

after judgment, affecting the substantial rights of the

party.”

The present appeal is not from the judgment, but

is an appeal from an order after judgment, from

which, if it affects any substantial right of the

petitioner, he has an undoubted right to

appeal. (Pen. Code, sec. 1237, subd. 3.) That the

order does affect the substantial rights of

the petitioner is clear;

Ward v. Dunne 136 Cal. 19, 20-21 (1902)

Exactly on point is People v. McNulty 95 Cal.

594 (1892). Without equivocation, soundly resolved

the issue in Petitioner’s favor, relying on [Pen. Code,]

§§ 1237(3) and 1248. Two noteworthy aspects: “To

dismiss an appeal is to refuse to consider its merits...”

“By this provision the supreme court is forbidden to

dismiss an appeal in a criminal case unless the appeal

itself is irregular in some substantial particular,” (id.

at 595-96), explaining the instant Petitioner’s appeal

was not irregular.

Per [Pen. Code,] § 1247k there is no Rule of

Court granting authority to dismiss an appeal that is

timely filed, unless there was consent or some fault in

the process by the party, consistent with [Pen. Code,]

§ 1248.

The final conclusive proof of appealability is

found in [Pen. Code,] §1054.9 (d) “The procedures

for... DNA testing are provided in Section 1405, and

this section does not provide an alternative means of

access to physical evidence for those purposes.”

[Pen. Code,] § 1405(k) (“An order granting or

denying a motion for DNA testing under this section

shall not be appealable, and shall be subject to review

only through petition for writ of mandate or

prohibition...”) Reference to a statute that precludes

appealability and announces procedural distinctness

yet does not itself renounce appealability, renders

[Pen. Code,] § 1237(b) expressly viable.

Then on R.30:

“[I]t is now fundamental that, once established,

... avenues [of appellate review] must be kept free of

unreasoned distinctions that can only impede open

and equal access to the courts.” (Rinaldi v. Yeager, 384

U.S. 305, 310 (1966)) The Fourteenth “Amendment

governs any action of a State, ‘whether through its

legislature, through its courts, or through its

executive or administrative officers.’ [Citations.]”

(Mooney u. Holohan, 294 U.S. 103, 113 (1935))

Of course, the Court may still be hesitant based

on comity. But the intentions are revealed by another

issue.

The Napue certiorari was attempted to be

blocked by referring to a claimed afforded habeas

route, while concealing from this Court that with its

other hand, it was denying access to massive amounts

of exculpatory evidence while shoving Frander down

that path.

In this case, the prejudice was intended for this

Court. Counsel for the innocent Frander has been at

this game for 50 years and can read a room. A motion

for request for judicial notice was filed in this matter

as the record was inadequate, (e.g., forgot the trial

RT.l starts with defense case). That notice exposed

the intentions claimed all along.

The breakdown in comity, equal justice under

law, and preservation of individual liberty eroded to

dust, from the petition for review before the state high

court.

“THE RECORD ON REVIEW

Currently the record is incomplete, no

opportunity to augment or perfect was afforded. The

standard of review is de novo, post at 27, requiring

original appraisal of all the evidence, a motion

requesting judicial notice of papers within this Court

was filed with the initial petition. This is permissible

under long standing rules preventing judicial

frustration from reaching the issue, Blair v. Hamilton

32 Cal. 49, 52-53 (1867); applied in Schwarz v.

Superior Court 111 Cal. 106, 112-13 (1896). R.14

As to the end result of lower courts and a

prosecutor acting contrary to several United States

Supreme Court decisions, “suppression by the

prosecution of evidence favorable to an accused upon

request violates due process where the evidence is

material” {Brady, supra, emphasis added) given that

a “rule thus declaring ‘prosecutor may hide, defendant

must seek,’ is not tenable in a system constitutionally

bound to accord defendants due process.” (Banks at

696))

Certainly, if Kennedy is able to identify

materials to which he would have been entitled

at time of trial under Brady, and he has

requested discovery of those materials in the

present motion, then he is entitled to an order for

discovery of those materials under section 1054.9

(assuming he has satisfied all other require

ments for obtaining such an order).

Kennedy v. Superior Court 145 Cal.App.4th 359,

369 (2006)

“[A]ll branches of government are required to

comply with constitutional directives or

prohibitions”. As we observed more than a

century ago, “[e]very constitutional provision is

self-executing to this extent, that everything

done in violation of it is void.” [Citations omitted.]

Katzberg v. Regents of the University of

California 29 Cal.4th 300, 306-07 (2002)

The merits of the appeal, in the above three

paragraphs in just 202 words and four case citations,

established the result was void. “When, as here, there

is an appeal from a void judgment, the reviewing

court’s jurisdiction is limited to reversing the trial

court’s void acts. [Witkin cites.]” (Griset v. Fair

Political Practices Com. 25 Cal.4th 688, 701 (2001))

R.15-16

The state highest court declared itself divested

of power to do what it condoned by the lower court.

Resultantly, we are petitioning this Court because the

state high court disregards its own rules repeatedly.

And in that process tried to preclude the truth from

reaching this court. Per its denial order:

“The request for judicial notice of the court

documents in case numbers B323872, B325061,

and B325333, the briefs and objection in case

number S278394, and the court documents in

case number MA066642 is granted. The

remainder of the request for judicial notice is

denied.

The petition for review is denied.” App.43a

This was a statutory right of appeal. Yet per se

reversal, denied? But notice the language “remainder”

denied. Set out for the Court at App.98a is what was

intended to be denied, i.e., the entire record set up in

the Napue line. The present one is bountiful but not

complete like the Napue record. Then beyond that, the

request for notice included every major exculpatory

item, that was part of the “remainder” that was

denied. If the state high court granted it in part, why

would it deny itself the very thorough and complete

record?

Along with denying the major Brady items on

an appeal pertaining to Brady denial?

If this was truly state grounds, why deny any

part of it?

That court had all the records anyway. Why

deny what they possessed? Unless the denial was not

for them, but for this Court.

See the express items denied to this Court at

App.91a When the issue on appeal was the Brady

items, and those and the Napue record are excluded

from the order granting judicial notice, that is by

negative implication a direct acknowledgment. “There

can be no question as to the proper presentation of a

federal claim when the highest state court passes on

it” (Raley u. Ohio, 360 U.S. 423, 436 (1959)), and “not

necessary that the ruling shall have been put in direct

terms. If the necessary effect of the judgment has been

to deny the claim, that is enough.” {Bryant v.

Zimmerman, 278 U.S. 63, 67 (1928))

Counsel does have a habit of asking the tough

questions...

1. Which remedial vehicle should be pursued to obtain

relief seeking a substantial right involving a

ministerial obligatory task, yet refused, given one

appellate court declares discretion afforded despite

divested by statute and another appellate court

declaring not appealable despite afforded by statute,

to avoid arbitrary adjudicative procedures that violate

due process?

2. To ensure due process is enjoyed and avoid any

future arbitrary adjudicative procedures that declare

discretion vested when divested by statute, what is

the correct standard of review or is there even a

standard of review for non-compliance with statutory

obligations resulting in acts in excess of jurisdiction

for ministerial duties?

3. What is the remedy for willful noncompliance, when

both the People and courts expressly violate the

unequivocal holding of Brady v. Maryland, (1963) 373

U.S. 83, 87 “suppression by the prosecution of

evidence favorable to an accused upon request

violates due process where the evidence is material”,

and all defy the commands of § 1054.9?

While those questions could work before this

Court, it was believed that the Court would enjoy

questions with national applications.

The arbitrary aspects pertained to no standard

of review having been established on this issue in over

20 years. All intermediate courts have been borrowing

from a statute that affords discretion as opposed to

Pen. Code, § 1054.9 that expressly divested discretion.

See R.32-34 and R.36-38.

Ending with, “How much longer will an error of

law reign over litigants and block the legislative

intent to afford the innocent speedy resolution?

That answer does lay within the sound discretion of

this Court.” R.38

But given the gravity and the refusal, while

clearly this Court cannot determine the state

standard of review, the sound discretion in this Court

is found in the state’s inability to preclude review of

their arbitrary treatment of rights. As stated in R.4546:

“The touchstone of due process is protection of

the individual against arbitrary action of govern

ment,” {Wolff v. McDonnell 418 U.S. 539, 558 (1974))

“it serves to prevent governmental power from being

‘used for purposes of oppression,’” {Daniels v.

Williams 474 U.S. 327, 331 (1986)) “due process

protections are necessary ‘to insure that the statecreated right is not arbitrarily abrogated.’” {Vitek v.

Jones 445 U.S. 480, 488-89, (1980) and 491 fn.6.)

“Prosecutors’ dishonest conduct or unwarranted

concealment should attract no judicial approbation.”

{Banks at 696) Will Mac’s felony and dishonesty

directed at this Court attract approbation or

probation?

REASONS FOR GRANTING REVIEW

The Napue petition demonstrates that the

circuits are in open rebellion on false evidence. While

California is trying to block this Court’s access to the

injustice of this case, the focus here is on how we have

strayed so far of course. And why such flagrant

injustice and dereliction of constitutional duty begs of

protection for the small individual, as our Constitu

tion was intended as a means of escaping oppression

—the very purpose behind most amendments.

Including process for papers in favor.

Because California ensured that this

Court should be blocked from

accessing the facts, recognizing the

intended protection and power will

prevent significant future litigation.

While the instant lower courts claim discretion

to defy Brady, this country’s great jurist believed

quite the opposite.

[W]ith respect to his right to apply for papers

deemed by himself to be material. In the one case

the accused is made the absolute judge of the

testimony to be summoned; if, in the other, he is

not a judge, absolutely for himself, his judgment

ought to be controlled only so far as it is apparent

that he means, to exercise his privileges not

really in his own defence, but for purposes which

the court ought to discountenance. The court

would not lend its aid to motions obviously

designed to manifest disrespect to the

government; but the court has no right to refuse

its aid to motions for papers to which the accused

may be entitled, and which may be material in

his defence. These observations are made to

show the nature of the discretion which may be

exercised.

United States v. Burr, 25 F. Cas. 30, 35 (1807)

If Brady is evidence favorable to an accused,

then the Chiefs words were either prophetic or

apropos for the amendment’s meaning, “his means of

defence ... designed by the fundamental law of our

country, ... his right to apply for papers” “the

testimony to be summoned” “the papers” “may be

material in his defence” “process to obtain testimony”

“deemed by himself to be material” (id.).

“Two hundred years ago, a great jurist of our

Court established that no citizen, not even the

President, is categorically above the common duty to

produce evidence when called upon in a criminal

proceeding. ... Burr, 25 F.Cas. at 34.” (Trump v.

Vance 140 S. Ct. 2412, 2431 (2020))

As Justice Thomas explained Burr rejected the

construction of witnesses as only meaning humans,

“holding that the right to compulsory process includes

the right to secure papers — in addition to testimony

— material to the defense. Id., at 34-35. This Court

has subsequently expressed agreement with this view

of the Sixth Amendment. See United States v.

Nixon, 418 U.S. 683, 711 (1974).” (United States u.

Hubbell 530 U.S. 27, 54-55 (2000), Thomas, J.,

concurring, joined by Scalia, J.)

II. Only this Court can bring us back to the

intended freedom from oppression that we

have gradually sunk into.

[T]he trial by jury... regarded as a right of

inestimable value, and the best and only security

for life, liberty, and property. [If] But as the law

formerly stood, the value of this right was much

impaired by the mode of proceeding in criminal

cases.... denied compulsory process for his

witnesses;... nor to have the aid of counsel in his

defence, except only as regarded the questions of

law. Hj] ... Lord Coke... declares... the rule which

prohibited the witnesses for the accused... was

not founded in law... [f] ... as they became States,

placed... safeguards against the restoration of

proceedings which were so oppressive and odious

while they remained in force... and ingrafted on

it the provision which secures the trial by jury,

and abolishes the old common-law proceeding

which had so often been used for the purposes of

oppression.... [|] It was for this purpose that the

5th and 6th amendments were added to the

Constitution.

U.S. v. Reid 53 U.S. 361, 363-64 (1851)

Despite that history, old habits die hard, and

was overruled as to “the dead hand of the commonlaw rule of 1789 should no longer be applied to such

cases” (Rosen v. United States, 245 U.S. 467, 471

(1918)) because “the truth is more likely to be

arrived at by hearing the testimony of all persons

of competent understanding who may seem to have

knowledge of the facts involved in a case, leaving

the credit and weight of such testimony to be

determined by the jury or by the court” (id.) as “the

disposition of courts to hear witnesses rather than

to exclude them” (id., at 470)

We started as a nation adamant that the

defendant was master of his defense. And it was

unthinkable to the Chief that one would be denied

the evidence of his choosing. “It ought not to be

believed that the department which superintends

prosecutions in criminal cases, would be inclined to

withhold it. What ought to be done under such

circumstances presents a delicate question, the

discussion of which, it is hoped, will never be

rendered necessary in this country.” (Burr at 37)

The above, impeaches the below.

There is no general constitutional right to

discovery in a criminal case, and Brady did not

create one; as the Court wrote recently, “the Due

Process Clause has little to say regarding the

amount of discovery which the parties must be

afforded...” Wardius v. Oregon, 412 U.S. 470,

474 (1973).

Weatherford v. Bursey, 429 U.S. 545, 559 (1977)

The lower courts simply read no right to

discovery and ignore “general” and “amount”.

The burden of breadth of law placed on this

Court is immense, law schools cannot contain the

amount of law required to review by this Court. But it

is most certainly universal, those in the criminal law

do not contemplate the word discovery as those in civil

law do. The broad exchange of information, not the

right to solicit it to narrow triable issues, is the focus

of criminal legal minds.

One court in California, does frame it neutrally.

“However, the duty to disclose under Brady is not a

discovery rule, but a due process requirement”

“whether Brady applies is a legal matter, reviewed de

novo.” (IAR Sys. Software, Inc. v. Superior Court 12

Cal.App.5th 503, 513 (2017) pretrial discovery) R.41

We started with the defendant is the master of

his defense and the government had no right to refuse

absent a clear abuse. Which flipped into no general

right, or do not require open files. Why not?

If the government claims witness privilege will

the Court not command dismissal under Jencks?

(Discussed post at 39) And if a President claiming the

most powerful privilege, will he or she still not be

caused to surrender his or her evidence?

If Lord Coke declared the rule prohibiting

witnesses for the accused was not founded in law, then

that rule still living today through permissible non

disclosure to ascertain where a defense may be found

and still unfounded in law, begs a question.

Quo warranto the common prosecutor to defy

the accused the right to his defense, upon his

assistant’s counsel?

According to The Bluebook 1.2 Introductory

Signals (a) Signals that indicate support. This Court

has already made that leap, and in the most unlikely

case.

[T]he right to receive from prosecutors exculpa

tory impeachment material—a right that the

Constitution provides as part of its basic “fair

trial” guarantee. See U.S. Const., Arndts. 5, 6.

See also Brady v. Maryland, 373 U.S. 83, 87

(1963) (Due process requires prosecutors to

“avoi[d]... an unfair trial” by making available

“upon request” evidence “favorable to an accused

... where the evidence is material either to guilt

or to punishment”); United States u. Agurs, 427

U.S. 97, 112-113 (1976) (defense request un

necessary); Kyles v. Whitley, 514 U.S. 419, 435

(1995) (exculpatory evidence is evidence the

suppression of which would “undermine confi

dence in the verdict”); Giglio v. United States,

405 U.S. 150, 154 (1972) (exculpatory evidence

includes “evidence affecting” witness “credibil

ity,” where the witness’ “reliability” is likely

“determinative of guilt or innocence”).

United States v. Ruiz, 536 U.S. 622, 628 (2002)

III. A Brady violation is a core Sixth

Amendment violation, requiring per se

reversal for denial of the community’s

constitutional rights to adjudge.

The Court’s constitutional analysis through the

incorporation clause has sagaciously matured to

honor the obvious intention of the founders when

writing the Constitution. The power that Chapman

granted the every-judge significantly curtailed the

rights of the jury to safeguard; that divestment

bestowed it on the entity intended to be deprived.

Providing an accused with the right to be tried

by a jury of his peers gave him an inestimable

safeguard against the corrupt or overzealous

prosecutor and against the compliant, biased, or

eccentric judge. If the defendant preferred the

common-sense judgment of a jury to the more

tutored but perhaps less sympathetic reaction of

the single judge, he was to have it.

Beyond this, the jury trial provisions in the

Federal and State Constitutions reflect a

fundamental decision about the exercise of

official power—a reluctance to entrust plenary

powers over the life and liberty of the citizen to

one judge or to a group of judges.

Fear of unchecked power, so typical of our State

and Federal Governments in other respects,

found expression in the criminal law in this

insistence upon community participation

in the determination of guilt or innocence. The

deep commitment of the Nation to the right of

jury trial in serious criminal cases as a defense

against arbitrary law enforcement qualifies for

protection under the Due Process Clause of the

Fourteenth Amendment, and must therefore be

respected by the States.5

Duncan v. Louisiana, 391 U.S. 145, 156 (1968)

A vital point can be taken in two ways,

adjusting the wording shows the intended reading in

context: as a defense against arbitrary enforcement of

the law.

Given that arbitrary government was a major

concern expressed throughout the federalist papers,

that rewording more clearly expresses the jury’s role

as part of the guaranteed social compact: we the people

shall determine when liberty is to be surrendered; and

no other.

“In all criminal prosecutions” the jury decides

guilt or innocence, not the prosecutor or the judge.

Deprivation of the Sixth Amendment incorporated

through the due process and equal protection

guarantees of the Fourteenth Amendment render the

judgment and sentence void.

That is the only use of the word “all” in the Bill

of Rights. It appears twice more in the full text of the

Fourteenth and once in the Eighteenth Amendments.6

“The Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury” (Art. Ill §2, cl.3)

The inquiry must be isolated to whether the

issue was a question of fact or one of law. Only the

5 Emphasis added, paragraph intentionally broken up to

highlight points in it.

6 “All persons born” “but all such debts”; “and all territory subject

to”; also 14 times in Article I; 7 in Article II: 6 in Article III; 2 in

Article IV; Article V “shall be valid to all Intents and Purposes,

as Part of this Constitution, when ratified”; 3 in Article VI: 0 in

Article VII.

latter may possibly be within judicial purview. See

United States v. Gaudin, 515 U.S. 506, 510 (1995)

(“We have held that these provisions require criminal

convictions to rest upon a jury determination that the

defendant is guilty of every element of the crime with

which he is charged, beyond a reasonable doubt.”...

‘“must unanimously concur in the guilt of the accused

before a legal conviction can be had.”’)

This right was designed “to guard against

a spirit of oppression and tyranny on the part of

rulers,” and “was from very early times insisted

on by our ancestors in the parent country, as the

great bulwark of their civil and political

liberties.” Id., at 540-541. See also Duncan v.

Louisiana, 391 U.S. 145, 151-154 (1968) (tracing

the history of trial by jury).

Gaudin at 510-511

Thus far, the resolution of the question before us

seems simple. The Constitution gives a criminal

defendant the right to demand that a jury find

him guilty of all the elements of the crime with

which he is charged;

Id., at 511

There is one exception to this, that is limited to

if a retrial or acquittal is appropriate. There are two

tests currently in play.

Under the current Brady-Strickland prejudice

test, undermining confidence requires finding a sole

juror would have voted differently, resulting in a

mistrial. A different result includes the outcome of a

hung jury, all that is required is to convince “the

factfinder... need[ing] to reach a subjective state of

near certitude of the guilt of the accused” (Jackson v.

Virginia, 443 U.S. 307, 315 (1979)) that the

government failed and thus “undermine confidence in

the outcome” (Strickland at 694) meaning “there is a

reasonable probability that at least one juror would

have struck a different balance.” (Wiggins v. Smith,

539 U.S. 510, 538 (2003)). Justice O’Connor wrote

both opinions Strickland and Wiggins. “When a

defendant challenges a conviction, the question is

whether there is a reasonable probability that, absent

the errors, the factfinder would have had a reasonable

doubt respecting guilt.” (Strickland at 695) Factfinder

was not plural in either usage. “A jury must reach a

unanimous verdict in order to convict.” (Ramos u.

Louisiana, 140 S. Ct. 1390, 1395 (2020))

If a reviewing court finds an issue of fact, then

the above dictates retrial is permissible. Yet the other

test is the only time the courts should be allowed to

supplant the outcome.

A finding of innocence entails, “no reasonable

juror would find him guilty beyond a reasonable doubt

— or, to remove the double negative, that more likely

than not any reasonable juror would have reasonable

doubt.” (House u. Warden 547 U.S. 518, 538 (2006))

“The meaning of actual innocence as formulated... It

must be presumed that a reasonable juror would

consider fairly all of the evidence presented. It must

also be presumed that such a juror would

conscientiously obey the instructions of the trial court

requiring proof beyond a reasonable doubt.” (Schlup

v. Delo 513 U.S. 298, 329-330 (1995))

No reasonable juror finds perjury established

“the truth of the charge.” (Pen. Code, § 1096, our

reasonable doubt instruction)

Likewise, any reasonable jury upon learning

the prosecutor is concealing evidence of innocence as

part of “the entire comparison and consideration of all

the evidence,” casts a reasonable doubt on the govern-

merit’s “burden of proving him or her guilty beyond a

reasonable doubt” and thus still “innocent [because]

the contrary [wa]s [not] proved” (id.).

This Court would not tolerate any attorney

lying to it in oral argument, it casts reasonable doubt

on everything said. The standard should not be

presumed to be less for a jury. If they choose to weigh

and disregard, then they performed their difficult

task. If that constitutional obligation is stolen, then

the prosecutor resolved the test.

The fortitude of the premise advanced was best

noted recently, again by Ramos at 1395:

Still, the promise of a jury trial surely

meant something —otherwise, there would have

been no reason to write it down. Nor would it

have made any sense to spell out the places from

which jurors should be drawn if their powers as

jurors could be freely abridged by statute.

Imagine a constitution that allowed a “jury trial”

to mean nothing but a single person rubberstamping convictions without hearing any

evidence.... And if that’s not enough, imagine a

constitution that included the same hollow

guarantee twice —not only in the Sixth

Amendment, but also in Article III.

Four Justices expressed the danger of the

single-judge-jury on appeal, that occurred in the

instant case, without hearing any evidence or causes

advanced.

On what ground would anyone have us leave Mr.

Ramos in prison for the rest of his life? Not a

single Member of this Court is prepared to say

Louisiana secured his conviction constitutionally

under the Sixth Amendment. No one before us

suggests that the error was harmless. Louisiana

does not claim precedent commands an

affirmance. In the end, the best anyone can seem

to muster against Mr. Ramos is that, if we dared

to admit in his case what we all know to be true

about the Sixth Amendment, we might have to

say the same in some others. But where is the

justice in that? Every judge must learn to live

with the fact he or she will make some mistakes;

it comes with the territory. But it is something

else entirely to perpetuate something we all

know to be wrong only because we fear the

consequences of being right. The judgment of the

Court of Appeals is Reversed.

Ramos at 1408, opinion of Gorsuch, J., joined by

Ginsburg, J., Breyer, J., and Sotomayor, J. But was

the judgment of the Court.

Observing “but says nothing else about what a

‘trial by an impartial jury’ entails.” (Id., at 1395) The

answer to that aspect is presented in the mandamus

petition, for the objection to false evidence was listed

in the Declaration of Independence and is the purpose

of the Sixth Amendment.

“For depriving us in many cases, of the benefits of

Trial by Jury:

For transporting us beyond Seas to be tried for

pretended offences

For abolishing the free System of English Laws in a

neighbouring Province, establishing therein an

Arbitrary government...”

—Declaration of Independence

And before that aspect of the objections, noted

the other side of the justice coin:

“For protecting them, by a mock Trial, from

punishment for any Murders which they should

commit on the Inhabitants of these States”

While not a source of law itself, it surely is the

most powerful legislative intent in our history.

The full depth of the meaning was explained in

the record, but because of the judicial usurpation by

the California Supreme Court of this Court’s Article

III obligations, i.e., “The judicial Power of the United

States, shall be vested in one supreme Court,” “The

judicial Power shall extend to all Cases, in Law and

Equity, arising under this Constitution,” “In all the

other Cases before mentioned, the supreme Court

shall have appellate Jurisdiction, both as to Law and

Fact,” when deprived of facts through the partial

denial of request for judicial notice that pertained to

the Brady materials, on a Brady appeal.

TV. Sanctions have always shown to be the only

teacher. Is not that the very purpose of the

criminal law?

The State here nevertheless urges, in effect, that

“the prosecution can lie and conceal and the

prisoner still has the burden to . . . discover the

evidence,” ... A rule thus declaring “prosecutor

may hide, defendant must seek,” is not tenable

in a system constitutionally bound to accord

defendants due process.

Banks, supra, 540 U.S. 668, 696

We find sanctity in another unlikely case.

[T]he State has denied a defendant the benefit of

a specific provision of the Bill of Rights, such as

the right to counsel, Argersinger v. Hamlin, 407

U.S. 25 (1972), ... When specific guarantees of

the Bill of Rights are involved, this Court has

taken special care to assure that prosecutorial

conduct in no way impermissibly infringes them.

Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)

Sanctions teach those humans believing they

are cloaked with power to play fair. In reality the

intention was to perform as civil servants. Nothing

less has inspired them.

California, through its executive and judicial

branches, denied access through compulsory process,

to evidence proven to exist.

That specific right, being historically born of

the Sixth Amendment, a heavy sanction awaits its

defiance, “the constitutional infringement identified

has had or threatens some adverse effect upon the

effectiveness of counsel's representation or has

produced some other prejudice to the defense.”

('United States v. Morrison 449 U.S. 361, 365 (1981)).

“upon a showing that the State participated in the

denial of a fundamental right protected by the

Fourteenth Amendment. The right to counsel

guaranteed by the Sixth Amendment is a

fundamental right.” (Cuyler, supra, 446 U.S. 335, 343)

For as solid as Agurs was on the Mooney-Napue

and even Brady understandings, the logic of this next

part defies all Sixth Amendment cases:

“The problem arises in two principal contexts.

First, in advance of trial, and perhaps during the

course of a trial as well, the prosecutor must

decide what, if anything, he should voluntarily

submit to defense counsel. Second, after trial a

judge may be required to decide whether a

nondisclosure deprived the defendant of his right

to due process. Logically the same standard must

apply at both times.

Agurs at 107-08

The Sixth Amendment right to assistance did

not include the prosecutor and judge in that role. They

may not deprive him, but certainly are not there as

his omnipotent aid. The accused and the attorney

constitutionally assigned to him decide what defense

to make. If “one cannot invoke the Sixth Amendment

as a justification for presenting what might have been

a half-truth.” (United States v. Nobles, 422 U.S. 225,

241 (1975)) Then it surely can invoke it to be protected

from the employ of a half-truth.

The dual aim of our criminal justice system is

“that guilt shall not escape or innocence

suffer,” Berber v. United States, 295 U.S. 78, 88

(1935). To this end, we have placed our confi

dence in the adversary system, entrusting to it

the primary responsibility for developing rele

vant facts on which a determination of guilt or

innocence can be made.

Id., at 230

It is incongruent for the Sixth Amendment’s

witnesses in favor—by testimony or by paper— to be

a personal right of the accused, yet a prosecutor may

unilaterally withhold parts of its file from the One

whose defense is deprived and the Twelve whose

constitutional role may turn “upon such subtle

factors” (Napue at 269). “A prosecution that withholds

evidence on demand of an accused which, if made

available, would tend to exculpate him” “casts the

prosecutor in the role of an architect of a proceeding

that does not comport with standards of justice”

(Brady at 87-88) Assistance of Counsel for his defense,

includes “the right to receive from prosecutors

exculpatory impeachment material—a right that the

Constitution provides as part of its basic ‘fair trial’

guarantee. See U. S. Const., Arndts. 5, 6.” (Ruiz,

supra.)

“In certain Sixth Amendment contexts,

prejudice is presumed... state interference with

counsel's assistance... such circumstances involve

impairments of the Sixth Amendment right that are

easy to identify and... because the prosecution is

directly responsible, easy for the government to

prevent.” (Strickland at 692)

Article VI cl. 2 “This Constitution, and the

Laws... shall be the supreme Law of the Land; and the

Judges in every State shall be bound” which this

Court interprets the listing of constitution before laws

to mean the former is superior.

The cost of actual justification to withhold is

clear:

[I]n criminal causes “... the Government can

invoke its evidentiary privileges only at the price

of letting the defendant go free. The rationale of

the criminal cases is that, since the Government

which prosecutes an accused also has the duty to

see that justice is done, it is unconscionable to

allow it to undertake prosecution and then

invoke its governmental privileges to deprive the

accused of anything which might be material to

his defense....” 345 U.S., at 12.

Jencks v. United States, 353 U.S. 657, 671 (1957)

Yet, absent such good cause, “the price of

letting the defendant go free”7 is to be paid by the

defendant?

The good prosecutors are out there doing

justice. It is the bad ones that require tests such as

these. But they do not deserve tests, “it is this very

lack of predictability which ultimately defeats the

State’s argument.” (Wardius v. Oregon, 412 U.S. 470,

477 (1973))

“Prosecutors’

dishonest

conduct

unwarranted concealment should attract no judicial

7 Quoted and invoked at R.94, 94, 155, 156, 157, 162.

approbation.” (Banks at 696.) “And it will tend to

preserve the criminal trial, as distinct from the

prosecutor's private deliberations, as the chosen

forum for ascertaining the truth about criminal

accusations.” (Kyles at 449)

Mac deceived the jury, concealed innocence and

stole liberty through employ of felonies. And has only

received judicial approbation from California.

Dismissal is the verdict. For he chose to steal

the acquittal from the jury.

The lower courts have proven irresponsible.

The power to decide for the jury was wrongly bestowed

and only this Court can take back what it gave.

SUMMATION

Hamilton’s

“faithful guardians of the

constitution” are the only ones that are constitu

tionally empowered to protect the sanctity of the jury’s

role as arbiters of permitting the state to deprive

liberty. Full open disclosure was the intention, the

Court should give the power back to where the

founders intended it to be, with the master of his own

defense and the constitutionally empowered jury.

It is prayed to restore this protection for all.

CONCLUSION

The Court should grant this petition.

Respectfully submitted,

Frander Salguero

Petitioner pro se

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.