In re Seijas

Filed 8/21/07 In re Seijas CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ORIGINAL PROCEEDING. Petition for Writ of Habeas Corpus. Writ denied without prejudice.

Andrew Reed Flier for Petitioner

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Jason C. Tran, Deputy Attorneys General, for Plaintiff and Respondent.

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Larry Seijas was convicted of second degree murder and we affirmed his conviction in an unreported opinion. In this petition for a writ of habeas corpus Seijas contends his conviction was based on the false testimony of the prosecutions chief witness, Jonathan G. We conclude Seijas has failed to meet his burden of proving by a preponderance of the evidence Jonathan gave false testimony concerning Seijas involvement in the murder. Therefore, we deny the writ.

We realize Seijas has been hindered in his attempt to obtain evidence Jonathan gave false testimony by Jonathans invocation of his privilege against self-incrimination and the district attorneys unreasonable refusal to grant Jonathan immunity from perjury even though the deputy in charge of the case has repeatedly asserted his office has no intention of bringing a perjury prosecution against Jonathan.[1]

Finally, we recognize that if Jonathan falsely testified about Seijas involvement in the shooting such false testimony, depending on its content, may have been substantially material and probative on the issue of Seijas guilt. Accordingly, our denial of the present writ petition is without prejudice to the filing of a new petition after the statute of limitations on perjury expires in November 2008, or sooner should evidence become available which adequately supports Seijas contention.

FACTS AND PROCEEDINGS BELOW

A jury convicted Seijas of the second degree murder of a rival gang member primarily on the basis of the preliminary hearing testimony of a then-13 year old Jonathan G. Jonathan originally told the police he had not seen the shooting and knew nothing about it. He later admitted this was a lie. Then he told police Chico was a passenger in defendants car when the shooting occurred. He later admitted this too was a lie. Finally Jonathan told police Seijas was the shooter.

At the preliminary hearing Jonathan positively identified Seijas as the shooter. He testified Seijas gave him a ride to the market. When they arrived, he got out of the backseat of the car and was standing near the entrance to the market. He saw Seijas leave his car and approach the victims pickup truck.

Prosecutor: What did you see happen?

Jonathan: Um, I saw them - - - I saw a shooting.

Prosecutor: Okay. Who did the shooting?

Jonathan: Larry.

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Prosecutor: [Y]ou definitely saw him shoot?"

Jonathan: Yeah.

On cross-examination defense counsel asked Jonathan if it was true Seijas was the shooter. Jonathan responded: I dont know.

Cross-examination continued with this colloquy:

Defense counsel: So what I want to know is, did you actually see Larry shoot somebody or did you just hear the noises of the gunshot?

Jonathan: I heard them.

Defense counsel: You heard the noises?

Jonathan: Yes.

Defense counsel: So you never saw Larry shoot anybody, correct?

Jonathan: Yes.

Defense counsel: Did you lie today and say that Larry [was the one] you saw do the shooting?

Jonathan: Yes.

On redirect Jonathan testified he had seen Seijas standing next to the drivers side of the victim's truck, heard two or three shots and saw Seijas get back into his car and drive away. From this he assumed Seijas was the shooter.

At trial Jonathan invoked his Fifth Amendment privilege against self-incrimination based on his admitted lies to the police about not seeing the shooting and about Chico being a passenger in Seijas car when the shooting occurred. The trial court found Jonathan properly invoked the privilege and declared him unavailable as a witness. As a result Jonathan's preliminary hearing testimony was read to the jury under the former testimony exception to the hearsay rule.[2]

On Seijas appeal from his conviction we initially held Jonathans invocation of the privilege against self-incrimination was not justified and the trial court committed prejudicial error in admitting his preliminary hearing testimony. Our Supreme Court reversed this opinion and remanded the cause to us to resolve other issues in the appeal.[3] We affirmed the conviction.[4]

Following our initial decision and while its review was pending in the Supreme Court Seijas filed a petition for a writ of habeas corpus in the high court claiming he was convicted on the basis of Jonathans false testimony he was the shooter. Seijas accompanied his petition with the declaration of a defense investigator, David Warkentine, who conducted telephone interviews with Jonathan on April 23, 2004 and May 14, 2004 regarding Jonathans testimony at the preliminary hearing in which he identified Seijas as the shooter.

Warkentines declaration states Jonathan admitted during his first interview hed lied about Seijas involvement in the murder. Jonathan told Warkentine Detective Lumbreras told him to say it was Seijas who did the shooting or Lumbreras would make sure Jonathan went to jail. . . . This conversation between Warkentine and Jonathan was not recorded.

Upon instructions from Seijas appellate counsel, Warkentine contacted Jonathan a second time to try to obtain a declaration or a recorded statement from him admitting he had not told the truth when he testified defendant was the shooter. Jonathan would not agree to making a written or recorded statement and would not repeat his admission he had lied about Seijas being the shooter. He also revised his previous statement in which he said Lumbreras had told him to say it was Seijas who did the shooting. In the second interview Jonathan stated Nobody told me to lie. According to Jonathan, Lumbreras only told him: [I]f I didnt point anybody out then they were going to blame it on me.

DISCUSSION

Penal Code section 1473, subdivision (b)(1) allows relief on habeas corpus where the petitioner shows [f]alse evidence that is substantially material or probative on the issue of guilt or punishment was introduced at the petitioners trial. The petitioner must make this showing by a preponderance of the evidence.[5]

After reviewing the Peoples return to the petition and Seijas traverse we issued an order to show cause and referred the matter to the superior court to conduct an evidentiary hearing and make findings of fact on two issues: 1. What if anything does Jonathan G., a minor, know about Larry Seijas involvement in the shooting of Heriberto Salinas. 2. If the People decline to provide Jonathan G. immunity from any prosecution for perjury which might be based on his December 2001 preliminary hearing testimony and if Jonathan G. refuses to testify based on his Fifth Amendment privilege against self-incrimination the court shall make a factual determination under Penal Code section 801.5 as to the date of discovery of the commission of the offense and the date of completion of the offense and if either of those dates bars a prosecution for perjury the court shall order Jonathan G. to testify.

At the hearing Jonathan invoked the Fifth Amendment on the advice of counsel and refused to answer any questions about the events surrounding the murder. The district attorney persisted in refusing to grant Jonathan immunity with regard to his preliminary hearing testimony. Consequently the trial court was unable to provide us an answer to the first question: what does Jonathan know about Seijas involvement in the murder?

As to the second question, the trigger date for the statute of limitations, the trial court found the district attorney was first put on notice of Jonathans possible perjury on November 23, 2004 when Seijas filed this habeas petition containing the Warkentine declaration described above. Substantial evidence supports the trial courts determination.[6]

Before discussing the merits of the petition we address the Peoples contention the petition is procedurally barred because Seijas did not raise his claim of false testimony on appeal.[7] We reject this argument because an appeal is limited by the four corners of the record[8]and the record shows Jonathan invoked the Fifth Amendment at trial when questioned about the murder. Until Warkentine interviewed Jonathan three years after the trial, Seijas had no evidence to support a claim Jonathan gave false testimony. The very purpose of Penal Code section 1473, subdivision (b)(1) is to allow a convicted defendant to bring before the court evidence of false testimony acquired after conviction.[9]

Seijas argues there is substantial evidence showing Jonathan lied about him being the shooter even without Jonathans admission of that fact at the evidentiary hearing on the petition. The evidence Jonathan lied consists of Warkentines declaration Jonathan admitted in a telephone conversation he lied about Seijas involvement in the murder and his assertion Detective Lumbreras coerced his testimony by telling him to say Seijas did the shooting or Lumbreras would pin the murder on him.

We do not believe Jonathans statements to Warkentine are sufficient evidence to justify a new trial.

The conversation between Jonathan and Warkentine was not recorded so we do not know exactly what Jonathan said regarding his testimony at the preliminary hearing. Nor do we know what Jonathan had in mind when he confirmed to Warkentine he had lied about Seijas involvement in the murder. Jonathan gave two versions of the shooting in his preliminary hearing testimony. In the first version he testified he saw Seijas shoot the victim. In the second version he testified he saw Seijas at the window of the victims car, heard shots, saw Seijas drive away and assumed from what he saw Seijas had shot the victim. The questions which need to be answered are whether one or

both of these versions is false and if one is false, which one. Jonathans admission to Warkentine he lied about Seijas involvement in the shooting does not answer these questions.

Furthermore, there is no independent collaboration of Jonathans claim Lumbreras coerced him into naming Seijas as the shooter in order to avoid being charged with the murder himself. Indeed, a month later Jonathan recanted this claim and told Warkentine the police only wanted him to name someone or they would put the blame on him. Lumbreras, on the other hand, denied making any such threats and denied having any conversations with Jonathan other than the ones which were recorded and introduced into evidence in the present proceedings. In the reference the trial court found Lumbreras credible and we have no basis for disputing this finding.[10]

Based on the numerous contradictions and inconsistencies in Jonathans statements about the murder we can be certain he has lied at some point. We cannot be certain, however, where that point is. And, until Jonathan changes his mind about testifying, the district attorney changes his mind about offering immunity, or the statute of limitations on perjury runs we have no means of finding out.

DISPOSITION

The petition for writ of habeas corpus is denied without prejudice.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, Acting P. J.

We concur:

WOODS, J.

ZELON, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

[1]People v. Seijas (2005) 36 Cal.4th 291, 297-298. The trial court was at a loss, as are we, to understand the Peoples intransigence on the issue of immunity for Jonathan, especially since the People have continually represented to the court Jonathan is in no danger of being prosecuted for perjury. Tough immunity decisions usually arise when the witness was the defendants accomplice. In that situation, the prosecution is compelled to choose between granting the witness immunity in order to gain a conviction of the defendant but thus losing the ability to prosecute the witness for the same crime or denying the witness immunity and retaining the opportunity to prosecute him for the same crime but losing the ability to use his testimony against the defendant.

In this case, however, the prosecution faced no such dilemma. Jonathans possible crimes of perjury and lying to the police had nothing to do with the first degree murder charge against Seijas and they pale in comparison.

It is a cardinal principle of the American judicial system that the duty of the prosecutor is to seek justice, not merely to convict. (Berger v. United States [1935] 295 U.S. 78, 88; In re Sakarias [2005] 35 Cal.4th 140, 159.) We are concerned whether the Deputy District Attorney adhered to that principle in the present case. After hearing the prosecutors explanation for refusing to grant Jonathan immunity the trial court told the prosecutor his justifications were not credible reasons other than you just dont want him in front of the jury. (People v. Seijas, supra, 36 Cal.4th at page 298.) We believe the trial courts evaluation was correct.

On the other hand, assuming a court has inherent authority to grant immunity over the prosecutions objections, Seijas has not met one of the stringent requirements (People v. Stewart [2004] 33 Cal.4th 425, 468) which would have to be satisfied before a court could exercise such authority. As we discuss more fully below, Seijas had not shown Jonathans immunized testimony would be clearly exculpatory. (People v. Stewart, supra, 33 Cal.4th at page 469.)

[2] Evidence Code sections 1290-1291.

[3]People v. Seijas (2005) 36 Cal.4th 291, 308.

[4]People v. Seijas (B160209) December 19, 2005.

[5]In re Cox (2003) 30 Cal.4th 974, 997-998.

[6] The statute of limitations on perjury is four years from discovery of the commission of the offense, or . . . four years after the completion of the offense, whichever is later. (Pen. Code, 801.5.) Thus the limitations period will expire in November 2008.

[7] See In re Dixon (1953) 41 Cal.2d 756 [habeas petitions claims of coerced confession and illegal search and seizure barred for failure to make such claims on appeal].

[8]People v. Waidla (2003) 22 Cal.4th 690, 703.

[9]In re Roberts (2003) 29 Cal.4th 726, 741-742.

[10] As a further reason to distrust Jonathans coercion claims, Jonathans mother told Warkentine she had been present during one of the interviews Jonathan had with Lumbreras and heard Lumbreras tell Jonathan to lie and say he didnt know who the shooter was. (Italics added.) The mothers statement contradicts both of Jonathans statements regarding the alleged coercion.