Petition for Writ of Certiorari — Michael Allen, Petitioner v. Fidencio N. Guzman, Acting Warden

Supreme Court briefJun 13, 2024

Ask Donna

What actually matters in this document.

Text

9TH CIRCUIT COURT OF APPEALS RULING

Case: 24-1321, 05/14/2024, DktEntry: 5.1, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

MAY 14 2024

MICHAEL ALLEN,

Petitioner - Appellant,

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 24-1321

D.C. No. 2:22-cv-09110-SVW-MAA

Central District of California,

Los Angeles

ORDER

SEAN MOORE, Warden,

Respondent - Appellee.

Before:

BADE and VANDYKE, Circuit Judges.

The request for a certificate of appealability (Docket Entry Nos. 3 and 4) is

denied because the underlying 28 U.S.C. § 2254 petition fails to state any federal

constitutional claims debatable among jurists of reason. See 28 U.S.C.

§ 2253(c)(2)-(3); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (“When ... the

district court denies relief on procedural grounds, the petitioner seeking a COA

must show both that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.”’) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Any pending motions are denied as moot.

DENfED.

U.S. DISTRICT COURT CENTRAL DISTRICT

OF CALIFORNIA

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL ALLEN,

Petitioner,

FIDENCIO N. GUZMAN,

Case No. 2:22-cv-09110-SVW-MAA

ORDER ACCEPTING AMENDED

REPORT AND

RECOMMENDATION OF

UNITED STATES MAGISTRATE

JUDGE

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended

Petition (ECF No. 8), Respondent’s Motion to Vacate Order Requiring Response

(“Motion”) (ECF No. 10), Petitioner’s Opposition to the Motion (ECF No. 16),

Petitioner’s Application for a Certificate of Appealability (“Application”) (ECF No.

21), Respondent’s Opposition to the Application (“Opposition”) (ECF No. 25),

Petitioner’s Reply to the Opposition (ECF No. 26), the other records on file herein,

and the Amended Report and Recommendation of the United States Magistrate

Judge (ECF No. 28).

The Court also has reviewed Petitioner’s objections to the Amended Report

and Recommendation, filed on November 29, 2023 (“Objections”). (ECF No. 29.)

As required by Federal Rule of Civil Procedure 72(b)(3), the Court has engaged in

de novo review of the portions of the Amended Report and Recommendation to

« /

which Petitioner specifically has objected. The Objections lack merit for the

reasons stated in the Amended Report and Recommendation. The Court finds no

defect of law, fact, or logic in the Report and Recommendation. The Court concurs

with and accepts the findings, conclusions, and recommendations of the United

States Magistrate Judge, and overrules the Objections.

IT THEREFORE IS ORDERED that (1) the Amended Report and

Recommendation of the Magistrate Judge is accepted; (2) Respondent’s Motion

8 II (ECF No. 10) is GRANTED; (3) Petitioner’s Application (ECF No. 21) is

DENIED; and (4) Judgment shall be entered denying the First Amended Petition

and dismissing this action without prejudice.

DATED: February 1,2024

g-'i

HONORABLE STEPHEN V. WILSON

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL ALLEN,

Petitioner,

Case No. 2:22-cv-09110-SVW-MAA

ORDER DENYING CERTIFICATE

OF APPEALABILITY

FIDENCIO N. GUZMAN,

Respondent.

Rule 11 of the Rules Governing Section 2254 Cases in the United States

District Courts provides:

(a)

Certificate of Appealability. The district court must

issue or deny a certificate of appealability when it enters a final order

adverse to the applicant. Before entering the final order, the court may

direct the parties to submit arguments on whether a certificate should

issue. If the court issues a certificate, the court must state the specific

issue or issues that satisfy the showing required by 28 U.S.C.

§ 2253(c)(2). If the court denies a certificate, a party may not appeal

the denial but may seek a certificate from the court of appeals under

Federal Rule of Appellate Procedure 22. A motion to reconsider a

denial does not extend the time to appeal.

(b)

Time to Appeal. Federal Rule of Appellate Procedure

4(a) governs the time to appeal an order entered under these rules. A

timely notice of appeal must be filed even if the district court issues a

certificate of appealability. These rules do not extend the time to

appeal the original judgment of conviction.

Pursuant to 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue

“only if the applicant has made a substantial showing of the denial of a

constitutional right.”

‘When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should

issue when the prisoner shows, at least, that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here, jurists of reason would not conclude that “dismissal on procedural

grounds was debatable or incorrect.” Id. at 485. Thus, the Court finds that

Petitioner has not satisfied the requirements for a certificate of appealability.

Accordingly, a certificate of appealability is DENIED.

DATED: February 1,2024

HONORABLE STEPHEN V. WILSON

UNITED STATES DISTRICT JUDGE

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL ALLEN,

Case No. 2:22-cv-09110-SVW-MAA

Petitioner,

JUDGMENT

FIDENCIO N. GUZMAN,

Respondent.

Pursuant to the Order Accepting Amended Report and Recommendation of

the United States Magistrate Judge,

IT IS ORDERED AND ADJUDGED that the First Amended Petition is

denied and the action is dismissed without prejudice.

DATED: February 1, 2024

HONORABLE STEPHEN V. WILSON

UNITED STATES DISTRICT JUDGE

CALIFORNIA STATE SUPREME COURT RULING

SUPREME COURT

FILED

APR 2 0 2022

Jorge Navarrete Clerk

S272095

Deputy

IN THE SUPREME COURT OF CALIFORNIA

En Banc

In re MICHAEL ALLEN on Habeas Corpus.

The petition for writ of habeas corpus is denied.

CANTIL-SAKAUYE

ChiefJustice

SUPREME COURT

•1“

LbD

JUL 2 7 2022

Court of Appeal, Second Appellate District - No. B318252 Jorge Navarrete Clerk

S275010

Deputy

IN THE SUPREME COURT OF CALIFORNIA

En Banc

THE PEOPLE, Plaintiff and Respondent,

MICHAEL E. ALLEN, Defendant and Appellant.

The petition for review is denied.

CANTILSAKALIYE

Chief Justice

SECOND APPELLATE COURT OF APPEALS

(CALIFORNIA)

♦

CALIFORNIA STATUTE PENAL CODE § 1473(f)

LINE 8-10 PAGE # 2

..1^

AUTHENTICATED

fl.-;*50MCl£wAk VAJiT'AL

State of California

PKNAI. CODE

Section 1473

1473. (a) A person unlawfully imprisoned or restrained of their liberty, under any

pretense, may prosecute a writ of habeas coipus to inquire into the cause of the

imprisonment or restraint.

(b) A w fit of habeas corpus may be prosecuted for. but not limited tu, the foilou inii

reasons:

0) False evidence that is substantially material or probative on the issue of guilt

or punishment was introduced against a person at a hearing or trial relating to the

person's incarceration.

(2) False physical evidence, believed by a person to be factual, probative, or

material on the issue of guilt, which was known by the person at the time of enterina

a plea of guilty, which was a material factor directly related to the plea of guilty bv

the person.

(3) (A) New evidence exists that is credible, material, presented without substantial

delay, and of such decisive force and value that it would have more likely than not

changed the outcome at trial.

(B) For purposes of this section, "new evidence’’ means evidence that has been

discovered after trial, that could not have been discovered prior to trial bv the exercise

of due diligence, and is admissible and not merely cumulative, corroborative, collateral,

or impeaching.

nature of the evidence referred to in paragraphs (1) and (2) of subdivision (b) is

immaterial to the prosecution of a writ of habeas corpus brought pursuant to paragraph

(I) or (2) of subdivision (b).

(d) 1 his section does not limit the grounds for which a writ of habeas corpus mav

be prosecuted or preclude the use of any other remedies.

(e) (I) For puiposes of this section, "false evidence” includes opinions of experts

that have either been repudiated by the expert who originally provided the opinion at

a hearing or trial or that have been undermined by later scientific research or

technological advances.

(2) This section does not create additional liabilities, beyond those already

recognized, for an expert who repudiates the original opinion provided at a hearing

or trial or whose opinion has been undermined by later scientific research or

technological advancements.

(f) Notwithstanding any other law, a writ of habeas corpus may also be prosecuted

after judgment has been entered based on evidence that a criminal conviction or

\ sentence was sought, obtained, or imposed in violation of subdivision (a) of Section

(

745 if judgment was entered on or after January I, 2021. A petition raisins a claim

o'f tills nature" for llieTirst time/or on the Basis of new discovery provided bv the state

or other new evidence that could not have been previously known by the petitioner

with due.diligence, shall not be deemed a successive or abusive petition. If the

petitioner has a habeas corpus petition pending in state court, but it has not vet been

decided, the petitioner may amend the existing petition with a claim that the petitioner's

conviction or sentence was sought, obtained, or imposed in violation of subdivision

(a) of Section 745. Th£petmon shall state if the petitioner requests appointment of

counsel and the court shall appoint counsel if the petitioner cannot afford counsel and'

either the petition alleges facts that would establish a violation of subdivision (a) of /

Section 745 or the Stale Public Defender requests counsel be appointed. Newlv /

appointed counsel may amend a petition filed before their appointment, the court’ j

shall review a petition raising a claim pursuant to Section 745 and shalTdetermine if /

the petitioner has made a prima facie showing ofentitlement to relief. If the petitioner/

makes a prima facie showing that the petitioner is entitled to relief, the court shall

issue an order to show cause why relief shall not be granted and hold an evidentiarv

hearing, unless the state declines to show cause. The defendant shall appear at the

hearing by video unless counsel indicates that their presence in court is needed. If the

court determines that the petitioner has not established a prima facie showing of

entitlement to relief, the court shall state the factual and legal basis for its conclusion

on the record or issue a written order detailing the factual and legal basis for its

conclusion.

(Amended by Stars. 202(1. Ch. 317. Sec. 4. (AB 2542) Effective Januarv 1.2021.)

DENIAL OF COUNSEL ON RACIAL JUSTICE ACT

r<i ’

.r •-!•.• ••*'

--•^iV. \

■ j ii

t;*f,.^ -' ? *2-?

MINUTE ORDER

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE PRINTED: 01/24/22

CASE NO.

BA016472

THE PEOPLE OF THE STATE OF CALIFORNIA

VS.

DEFENDANT 01:

MICHAEL ERIC ALLEN

COUNT 01; 187(A) PC FEL

COUNT 02: 211 PC FEL

ON 08/10/21 AT

830 AM

IN CENTRAL. DISTRICT DEPT 100

CASE CALLED FOR HABEAS CORPUS PETITION

PARTIES: SERGIO TAPIA (JUDGE)

JESSICA CABRERA

(REP)

NONE

(DDA)

NONE

DEFENDANT IS

(CLERK)

NOT PRESENT IN COURT, AND NOT REPRESENTED BY COUNSEL

PETITION FOR WRIT OF HABEAS CORPUS DATED 8/1/21 AND "REQUEST

FOR APPOINTMENT OF COUNSEL PURSUANT TO PENAL CODE SECTION

1473(F) WITH DECLARATION OF;INDIGENCY" IS FILED THIS DATE AND

FORWARDED TO THE WRIT CENTER.

NEXT SCHEDULED EVENT:

PROCEEDINGS TERMINATED

PAGE NO.

HABEAS CORPUS PETITION

HEARING DATE: 08/10/21

-13-

B. Background on Our Incarceration Crisis

Our ballooning prison population did not result from an increase in crime. In tact, our crime rate

has declined dramatically since the early 1990’s. Rather, harsher sentencing laws like Life Without

the Possibility of Parole, an increase in mandatory minimum sentences for indeterminate

sentences, Three Strikes sentencing, and requirements that that restrict people to complete 85% of

their imposed time now keep people in prison for longer than ever before, long after they pose any

safety risk to their community.

There are currently more people serving life sentences in America than were locked up in prison

at all during the 1970s. One in seven people behind bars is serving a life sentence.

California has led the way in this explosion. We had 23,000 people incarcerated in 1980. By 2000,

we had over 160,000 people. By 2010 we had 164,000. In the last 10 years, spurred by a United

States Supreme Court decision holding that California’s overcrowded prisons constituted cruel and

unusual punishment, as well as by a growing public awareness that we are incarcerating too many

people for too long, we have moved to reduce our prison population. However, we have five times

as many people incarcerated as we had in 1980.

California spent a shocking SI 5.7 billion on prisons in 2019-2020. This represents 7.4% of all state

funds. This is occurring while people are sleeping in our streets, our parks are trash-ridden, our

schools are in need of repair, our once-free public universities arc underfunded and tuition rises,

people are hungry, and we need major infrastructure repair to even do things like provide clean

water to the people of California.

In Los Angeles County alone we currently have almost 30,000 people in CDCR.

Nationally, our criminal justice policies have disproportionately impacted minority populations.

60% of people in prison are Black, despite making up just 13% of the population. One out of every

five Black persons behind bars has a life sentence.

Almost’93% of people sent to prison from Los Angeles County arc Black people and people

of color. Black people are approximately 9% of Los Angeles’s population. They constitute 38%

of Los Angeles’s state prison population. We can no longer deny that our system of hypercriminalization and incarceration is anything other than racist.

The incarceration rate of women is also on the rise. In 1980, there were 13,206 women in prison;

in 2017, there were 111,360.

Harsh sentencing laws have also meant that the prison population is old. If we continue at current

rates, one in three people behind bars in state prisons will be over 50 by 2030. Ln 1993, there were

45,000 people over 50 in U.S. state prisons. Twenty years later, there were 243,800. The growth

in the aging prison population has continued. Since 1999, New York has decreased its prison

population by 30 percent but during that same time span saw a doubling of its over 50 population.

Between 2001 and 2014, 29,500 people over 55 died in federal and state prisons.

*7,

»l sfc

;

i i.M.j it »ii< >vv-i jj j

Source: Special Circumstances Conviction Project, UCLA Center for the Study of Women:

Survey of 2,437 LWOP cases

4 &

■

7 (of 22) special circumstances have not been used at all

49% of these LWOP sentences are for felony murder

•

No data on % that was principal vs. aider/abettor

78% of those people are people of color

41% are Black

67% were 25 or younger

■

*•

sc-

14% of these LWOP sentences involved gang special circumstances

98% people of color

75% were 25 or younger

STATISTICS AND DATA ON LIFE WITHOUT THE

POSSIBILITY OF PAROLE

Ph.D., Q.M.&

Cl.lN'ICAI. / Hoicn.vsic PSYCHOLOGY

2Vina

-**+***. • ’

i<c. # PSV70C24

COp Cuc,p VuZ/cy P^o, Sui'/c 200, Hr,,; Touiar

Rallina Hills Estates, CA 00274

T‘l: 3 1 0.373.7172__

Fax: 310.341 .Q30S~'

January 19, 2007

RE: Mr. Michael E. Allen H42389

Calipatria State Prison

Introduction

This report is prepared per a written request of Mr. Michael E. Allen- H423S9, Calipatria

State Prison.

This examiner has no knowledge of the reason in which Mr. Allen is incarcerated.

On September 4th, 2006, Mr. Allen requested in writing that this examiner review hismedical records and two laboratory, descriptions of the medication he reportedly had been

taking (prednisone) prior to his incarceration.

Air. Allen believes that he should have been evaluated for the possible side effect of

prednisone that could have affected his mental status and that possibly he did not recievea

a fair trial.

This study is limited to the following phases:

_______

T Review of the records as described above.

2. Literature review of the Crohn’s disease.

3. Common treatments of Crohn's disease

4. Side effect of the medication.

5. General opinions on the psychological effects of such medication on a person

subjected to such medication in long-term and systematic treatment.

Review of Mr. Allen’s Medical Records

A. 19S7-Diagnosed with Crohn’s Disease-USC Medical Center.

Treatment: 40mg of prednisone,

B. 6/16/19S8 to 2/9/1989-West Covina Medical Clinic. Inc.- 7 visits followed with

treatment of prednisone decreased to 15mg and then 20mg.

Michael E. Allen H423S9

C. 10/30/1989-Kaiser Permanente, West Los .Angeles, Prednisone 40mg was prescribed.

11/30/1989-Follow up for Crohn’s Disease- continued Prednisone therapy.

C. 6/27/1990-Hospitalized-Treatment for abdominal cramps..Diagnosis: Exacerbation

of Crohn’s Disease. Cramps, vomiting, fever Treated with prednisone 40mg.

D. 7/13/1990-UCS Gastro-Intestinal Clinic Record-Visit to doctor, was given

prednisone, tapering it but recommended to taper the prednisone.

•L..

Review of current and most-recent literature on-common treatment of

Crohn’s Disease

A review of relevant scientific studies on conventional therapy for Crohn’s Disease:

'Crohn’s Disease is multi-factorial disorder of unknown causes, it’s inflammatory bowel

disease (IBD).

Crohn’s Disease symptoms include:

-Pain in the stomach area

-Rectal Bleeding

-Wight Loss

-Fever

-Painful swelling of the lining of the affected organs, (small intestine or anyw nere in the

digestive track)

-Sores or ulcers in affected area.

__________

r •

Medication used to treat Crohn’s Disease:

The Conventional treatment of Crohn’s Disease has been Corticosteroids, which

continues to piny a central role in induction of remission in active Cronn s Disease.

However, their use comes at a price of significant adverse effects when used repeatedly

or for extended periods of time (Otley A, Steinhort .AH, 2005)

Lernamn M, Allez M.

Article 2005

Indicated that in active Crohn’s disease, corticosteroids represents the main treatment.

-v

Michael E. Allen H423S9

Review of recent and current literature on side effect of

~ Prednisone/corticosteroids treatment/thereapy

Side effect:

r *•

Roxane Laboratories. Inc.

The formal publication regarding the Prednisone. In description of prednisone under

clinical pharmocology indicates that it causes “profound and varied mental effects.” and

warns that in patients on corticosteroid therapy subjected to "unusual stress,” and that the

drug-induced secondary adrenal cortical insufficiency could “persist for months after

discontinuing medication therapy. It also indicates that psvchic derangement.ranging

from euphoria, insomnia, mood swings, personality changes and cevere depression to

frank psvchosis manifestation could occur. In addition, it's indicated that, “existing

emotional instability or nsvchotic tendencies mav be aggravated bv corticosteroids.”'

Prednisone and Violence.

Mood Disorder was associated with prednisone. (By-Behray H. and Pumariga. AJ. 1998)

• The uses .of corticosteroids, particularly high-potencv steroids for the treatment of various

inflammatory conditions, has been frequently associated with mood disturbance and

i psvchosis.

Studies indicated prednisone can cause dementia:

Sacks.O., Shulman. M.. 2005

. Which is also called “steroid dementia syndrome” (University7 of CA, San Francisco,

School of Medicine, 2006) ■

Mood and cognitive disturbance associated with corticosteroid therapy (Prin Care

“ Companies Journal of Clinical Psychology,-2001): — ..........

Mood and Cognitive Change Duty Systemic corticosteroid therapy, appear to be

common.

Psvchosis in patients with the treatment 5% of a prospective cohort of 92 patients with

treatment of corticosteroids (Psychosomatic 2003, May-June).

Summary7 and Conclusions

Per my review of the submitted medical records, Mr. Allen was treated with prednisone

routinely and systematically for severe symptoms of Crohn's Disease from 19S7 the

1990. The dosage was mostly at 40mg. According to scientific literature this is a common

JHSjr

MEDICAL EXPERT REPORT # 2

!\{ ‘

K-

Alan M. Goldberg SBN? 136988 (Limited Scope)

THE LAW OFFICE OF ALAN GOLDBERG

5660 Etiwanda Avenue, Suite 3_____

Tarzana. CA 91356

818-921-2226

—

alangoldbergIaw@gmail.com

Attorney for Defendant Michael E. Allen

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES

‘

Case No.: BAO16472

PEOPLE OF THE STATE OF CALIFORNIA,)!

)

Plaintiff,

)

vs.

)

MICHAEL E. ALLEN,

)

Defendant.

)

SUPPLEMENTAL DECLARATION OF

JANCI C. LINDSAY, PhD IN SUPPORT OF

REPLY TO OPPOSITION TO PETITION

FOR HABEAS CORPUS BY MICHAEL E.

ALLEN

Date: 7/23/18

Dept. 105

— )I

nm ARATION OF JANCI C. LINDSAY. PhD.

I Janci C. Lindsay, PhD., declare and say as follows:

I am a consulting toxicologist and full member of the Society of Toxicology. I have

more than 25 years of scientific experience and hold a doctorate in Biochemistry and Molecular

Biology from the University of Texas Health Science Center at Houston and M.D . Anderson

Cancer Center. I have extensive experience in analyzing the complex dynamics of toxicity, such

as chemical pharmacology, exposure route, host metabolism, the dose/response relationship,

genetic susceptibility and subsequent cellular effects as they relate to the contribution of specific

substances to injury, impairment, human disease and cancer. I have consulted as an expert

witness since 2006 and have testified in both civil and criminal cases in state and federal

jurisdictions. A true and correct copy of my curriculum vitae is attached to my first declaration

dated 4/9/1 8. I have personal knowledge of the facts contained in this declaration and if 1 am

Supplemental Declaration of Janci C. Lindsay for Reply

*).

* I

called upon to testify as to these facts I could and would competently testify thereto . I submit this

declaration in support of the Reply to OppositionlTthe habeas corpus petition of Michael Allen.

While some side effects of Prednisone were known in the 1990s, the scientific literature

base has advanced exponentially since then. The difference between what was known then and

what is known now about the effects of Prednisone on human behavior is substantially different

with respect to w hat is known about the mechanisms of action of the gluco and cortico-steroids

. While it

on the central nervous system and the incidence and prevalence of the psychotic effects

was once thought that these drugs merely enhanced the existing tendenc) tow ards h) _teria or

mania and aggression, it is now understood that these drugs initiate behav ior that is de no% o as

well as completely adverse to typical behavior. This is in complete contradiction to the long held

belief that these drugs merely enhanced tendencies that were already present in an individual or

group of individuals.

The manufacturer's warnings have also been updated to reflect the grow mg scientific and

medical knowledge about the variety of psychiatric conditions to w hich these drugs can

predispose as well as the incidence of these effects which are now estimated to be quite

prevalent. In a meta-analvsis study of 2,555 patients from 13 studies on corticosteroid therapy,

the w eighted average incidence of severe psychiatric disturbances was 5.7%. Yet, despite

numerous scientific and medical publications regarding the potential for severe psychotic

reactions in individuals on prednisone therapy, these ps)chiatric reactions were not listed on the

prescribing guide of the major manufacturer of the medication, until just recently and even so,

they are buried towards the end of the guide rather than listed up front as their severity and

prevalence w arrants.

In another meta-analysis of 11 studies by the same authors, the incidence of mild to

Supplemental Declaration of Janci C. Lindsay for Reply

-v

moderate psychiatric reactions was

..... 2

27.6%, in 935 patients. These studies illustrate that rather

than varying psychoses being rare side effects of these drugs, they are

be confused with innate behavior. Much of this was not known at the time of Michael's trial and

was not considered. It is my opinion that if the cu

rrent scientific knowledge had been known

. Allen was tried and presented to the jury there is a reasonable probability that the

when Mr

result of the trial would have been different outcome more

should have grave doubt about the correctness

Allen. Mr. Allen’s conviction

favorable to Mr. Allen. The court

of the verdict because it w as prejudicial to Mr.

, w ithout consideration of this new scientific evidence, has

undermined the confidence in the outcome of his case.

quite common and could

As recently as last year, involuntary intoxication was

successfullv argued as a defense in

the case of a Minnesota mother charged with 2 counts of attempted homicide follow ing her use

asthma. (Jozetta R. Byrd (2015), Ramsey County

of an inhaled corticosteroid for her severe

District Court, case #: 62-JV-l5-382 and 62-JV-16 -37).

1 reserve the right to

amend and/or supplement my conclusions and opinions should

further information become available to me concernin_ this cas

and correct and based on my'

I declare under penalty of perjury that the foregoing is

i. true

research and analysis.

Executed this 9th day of July, 2018 in Sealy, Texas.

s5~

a:______

--.i

Janci Chunn Lindsay, Ph.D.,

Directing Toxicologist, Principal Consultant

Toxicology Support Services. LLC.

Supplemental Declaration of Janci C. Lindsay for Reply

«i

CALIFORNIA ROBBERY STATISTICS

2020 ANNUAL REPORT

COMMITTEE ON REVISION Of THE PENAL CODE

CLRC.CA.GOV

ESTABLISH TAT LOW-VALUE THEFTS WITHOUT SERIOUS

INiLiRY OR USE OF A WEAPON ARE MISDEMEANORS

pa-Oe

by race 7

■: «--v

■*

*^40% •.

f :

• BLACK

-* LATINX

• WHITE

■ OTHER

The Penal Code defines robbery as any taking ofany property, regardless of value, if

“accomplished by means of force or fear."171 Following the landmark People v. Estes173

case in 1983, courts have allowed prosecutors to charge robbery in cases that were

previously considered simple shoplifting. In effect, shoplifting can be elevated from

a mandatory misdemeanor to a violent crime with a mandatory sentence to state

prison. Purse snatches and stealing a cell phone can also be considered robbery, even

if a victim is not physically touched. In addition, robbery's automatic classification as

a “violent felony,” regardless of the circumstances, can subject a person to enhanced

penalties, including a life sentence under the Three Strikes law.173

"Estes robberies” are extremely common. In 2019, over 8,000 unarmed commercial

robberies were reported throughout the state.

REPORTERS TRANSRIPTS OF RACIAL CODED LANGUAGE

3-3-SL8

>.i

DOESN'T STOP.

IOES THROUGH THE INTERSECTION.

IE T OUT OF THE CAR,

AND HE'S PINNED IN WITH HIS BRACE.

AND HE FIRES AGAIN.

WHY?

THAT'S WHY.

DOESN'T CARE.

HE FIRES.

JUAN SLUMPS OVER.

JORGE,

WHY?

THE CAR

HE'S TRYING TO

BECAUSE HE'S A KILLER,

HE DOESN'T CARE ABOUT HUMAN LIFE.

HE SAYS

"GET OUT,

TRYING.

AND HE FIRES ON THEM AGAIN.

GET OUT."

AND HE'S

JORGE IS DOING HIS VERY BEST TO GET JUAN OUT.

THAT IS AGGRAVATION.

IS WHAT THEY MEAN WHEN THEY SAY,

ADD TO THE ENORMITY OF THE OFFENSE?

IN A ROBBERY-MURDER,

THAT

WHAT DOES THAT DO TO

IT CAN GO DOWN WHERE

THE GUY COMES IN,

JURY SELECTION, AND THE CLERK MAKES SOME FURTIVE

MOVEMENT,

BUT THIS ONE,

INNOCENT CITIZENS ON THE STREETS AT A TRAFFIC LIGHT,

YOU HAVE NO CONTROL OVER YOUR ENVIRONMENT. .. .YOU ARE A

SITTING DUCK.

COMMUNITY, A VULNERABLE VICTIM.

ESCAPE.

HE DIDN'T CARE.

INCREASES THE ENORMITY OF THE OFFENSE.

TO THE TOP.

AS THE JUDGE USED IN HER EXAMPLE IN

AND THE GUY GETS NERVOUS AND HE SHOOTS HIM.

LADIES AND GENTLEMEN,

GOES TO THE TOP.

YOU ARE WHAT WE CALL IN THE LEGAL

YOU HAVE NO CHANCE OF

AND HE KNEW THAT WHEN HE FIRED IN THERE.

THAT INCREASES HIS GUILT,

BUT

THAT

THAT TAKES HIM

AND THEN HE GETS ON THE STAND HERE, AND THEN

YOU WANT SO MUCH FOR HIM TO SHOW SOME SORT OF

SENSITIVITY.

WERE,

YOU WERE ROOTING FOR HIM,

BECAUSE I KNOW.

Katherine Parker-Riike,

I KNOW YOU

LOOK -AROUND AT YOU,

CSR#2830

YOU ARE NOT v

Official Reporter

1Q Q Q

k BUNCH OF RED NECKS.

AREN'T RALLYING TO THE CRY,

^T WHO YOU ARE SITTING NEXT TO .;

YOU PEOPLE ARE FAIR,

YEAH,

AND THAT IS THE POINT.

YOU PEOPLE

LET'S GET HIM.

LOOK

THE POINT IS THIS

3UY GOT ON THE WITNESS STAND,

EXCUSES,

SOMETHING THAT YOU WOULD BE ABLE TO USE WHEN YOU GO IN

THE JURY ROOM TO SAY,

ALIVE.

AND MADE UP ALL KINDS OF

AND YOU WERE HOPING HE WOULD JUST SAY

SEE,

LOOK,

WE SHOULD KEEP HIM

DID YOU HEAR WHAT HE SAID?

BUT HE DIDN'T

GIVE US THAT,

DID HE?

AND YOU WERE HOPING HE WOULD.

AND HE FELL FAR SHORT.

HE LIED OVER AND OVER AGAIN.

AND YOU WANTED HIM TO SAY,

A MAN THAT DID A HORRIBLE THING.

LET ME LIVE.

I'M SORRY,

FORGIVE ME.

YOU WANTED THAT TO HAPPEN,

YOU KNOW WHY?

BE;

BE .

I WAS

PLEASE

AND IT DIDN'T.

BECAUSE HE'S NOT THE MAN YOU WANT HIM TO

THAT'S THE PROBLEM.

I'M SORRY.

MITIGATION.

HE'S NOT WHAT YOU WANT HIM TO

ANY FACT,

CONDITION OR EVENT

WHICH AS SUCH DOES NOT CONSTITUTE A JUSTIFICATION OR

EXCUSE FOR THE CRIME IN QUESTION,

AS AN EXTENUATING CIRCUMSTANCE IN DETERMINING THE

APPROPRIATENESS OF THE DEATH PENALTY.

THIS MEANS ANYTHING.

OYSTER.

ENGENDER SOME SYMPATHY OR MERCY,

ENDED.

BUT MAY BE CONSIDERED

THE WORLD IS HIS

WHATEVER HE WANTS TO PRESENT TO YOU TO

Katherine Parker-Rijke,

CSR#2830,

IT'S OPEN,

OPEN

Official Reporter

No.

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL ALLEN

_ — PETITIONER

(Your Name)

VS.

FIDENCIO N. GUZMAN

— RESPONDENT(S)

PROOF OF SERVICE

I. MICHAEL AT.T.EM

______ ______

—:---- ;— > do swear or declare that on this date,

Tp^t enCl0Sed M0TI°* FoFleAVE TO PROCEEDW^Sil^p^p^JJ

hpaf"z™ f wfT op cetorari m each ^ *> SS

that party s counsel, and on every other person required to be served by depositing

to m Jh Ttr"4311"^ ‘i16 ab°Ve documents in the United States mail properly addressed

• a"d Wlth fet'dass postaSe P*P«H or by delivery to a thW-2tv

commeicial earner for delivery within 3 calendar days.

^ ^

The names and addresses of those served are as follows:

CALIFORNIA ATTORNEY GENERALS

LOS ANGELES, CALIFORNIA 90043

OFFICE, 300 SOUTH SPRING STREET

I declare under penalty of perjury that the foregoing is true

Executed on

and correct.

&// 3/^

.*r3e=_

(Signature)

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.