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SUPERIOR COURT OF THE STATE OF CALIFORNIA Fij counrvor onan, cenrraLiusnicecenter — “tage oaeee SD Mag ee n Ac 2 2s PEOPLE OF THE STATE OF CALIFORNIA ar, tc ye : ee i seort ea surpeenra uLN wwrooucron Inanuary of 2014 this defendant fed a series of motions which alleged misconduct onthe pat of ‘members ofthe Orange County Dist Attorney’ offs and ther aw enforcement partners. In these motions, the defendant sought several forms of rel. iter eonducting a lengthy evidentiary hearing related to these allegations, his courtssued a written ruling August of 2014 Later that ea, the ‘defendant requested reconsideration ofthat ruling alongwith a supplemental evidentiary hearing on ‘the issues involved based upon his ble that he ha dscovered relevant new evidence. The People itimately joined Inthe request for 2 supeiemental hearing and so, despite tinal reluctance to do so, ‘hls court commenced that hearing on February, 2018 The hearing, which put back nto play the defendant's mations 3 obar the People rom seklng 2 death udgment agains him; and 2) to recuse the ene Office of the Orange County Distr Attorney from further particpation inthis prosecution, conced its eldetiary phase on Friary 18,2015 Inthis Supplemental Ruling, the court confirms its orginal findings and rulings inal respects except for those thit are specially addressed herein, In alton tothe Issues on whlch tis cour original ruled, ‘the court wl now address these adlvonal questions: 1} Hasthe supplemental evidence, when consiered along with al ofthe other evidence produced uring this entre hearing, demonstrated that this defendant has suffered a personal due proces ation nthe form of cutrageous government conduct andor seriou dscovery \Wolatons whlch warant the impostion fan addtional al sanction? 2} Does the supplemental evidence, wen considered along with af the evidence produced uring this hearing. require the recusl of the entire Oran County District torn’ office? [MOTION FOR SANCTIONS RELATED TO “OUTRAGEOUS GOVERNMENT MISCONDUCT” “The defence allegation that triggered the supplemental evdentory heering was prima the contention thatthe defense had developed new evidence suggesting that one or mare of the law enforcement witnesses who testified during the intial phase ofthe hearing lied during thet testimony. This ‘conterton focused largely onthe testimony of Orange County Sherif’ deputies Seth Tunstall and Ben ‘car, _Abrief background statement is necessary to pace the current Issues into contest. The defendant's ‘tinal prosecutorial misconduct allegations focused on events that occurred in October of 2011, shorty afer he defendants atest, when he was placed into a patcular cll iside the Orange County Jn. nthe deect adjacent coll was an active Inmate informant. The defendant alleged that he was purposeful laced in that partlculr coll by lw enforcement inthe hope tat the nformavt could ‘obtain neninatng statement rom hi. The People's postion was that no improper att had occured. ‘uring the fst phase ofthe evidentiary hearing on these motions the court heard many weeks of “testimony which etabished that aw enforcement had engaged in legal act nother cases not ‘elatedte ths defendant’ case, During the itl testimony of depuis Tunstall and Gare, they were ached abou: ther experience within hej “special handling” deputies, and whether they hed been Involved nar had any knowledge of any ofthe alleged misconduct, Both denied any suchIwoWement, ‘and, when examined mare special, essential Indicated that they had limited recollectons of many ‘ofthese events and no means of refreshing thelr vague recollections ofthe relevant events related to thls defendint’s housing inthe jl The court not privy tothe exact means whereby the People andthe defendant became aware, ater ‘the coneluson ofthe fst phase of his hearing, thatthe Orange County Serf has for many years ‘maintaneduithin ts all records system a database known as TRED. Nonetheless the court has now heard testinony that the TREDsystom has ested for atleast decade, that cssfiation and special handing deputies access ton a dally bas, and thatthe TRED records contain signfiant information bout Inmate cel movements and the reason for sch transfers. Dring the ital testimony, esate ‘eldngngues tat shoud logically have trgered responses abou the existence and content of TRED cords, nether Tunstall nor Garcia ever mentioned ther krowiedge and regular use of TED during the years they worked nthe al ‘Deputy Tusa during hs recent appearance before tls cour, tested that, despite is bol that ‘TRED records would be the bes place to look for information concerning inmate transfers, and his Understand before his orignal tstimony that the reason fo his defendant’ cell plaerient was teal othe resolution ofthe pending motions about which he was testing It “never crossed Ns ‘mind toloa¢a the TRED recrds orto revel their existence to counselor his court In espane to ‘questions posed by thi court, Tunstall texte that TRED access was limited to “lsafeaton, pedal handing, nd upper administration.” He also tld the cour that he was never specealliisruced not ‘tomentonthe existence of TRED recordin cour and that he would have scussed themif anyone had specaly asked him about them despite his traning that all TRED records ware “confidential” Duis supplemental testimony deputy Garcia informed the court that he had evewes TED records in reparation for his orignal testimony because he understood the issues alse bythe detendsn’s motion and the most reliable wayo determine “who moved who and why" Irie the ‘range Count Jal would be to review the Inmate's TRED records. Nonetheless, he agreed tht, despite this belief andthe dlrect ature ofthe questions he was asked, he never mentioned the existence of the “TRED records during his nal testimony. After offering several posible reasons fo his, Deputy Garde utmately explained his prior lence by stating “that's the way we were trained.” _Aterlterngto thelr recent testimony, and comparing to the rior testimony ofboth deputies, this court concludes that deputies Tunstall and Garis have ether intentional led or wilfuly withhold ‘matrial evidence fm ths cour during the couse of thelr various testimonies. Fr ths court's current purposes, ones bad asthe other anit therefore not necessary to engage Inthe serail nays required to determine which ofthese posites has ocurred. Ths court wil eave that ‘valuation to rosacutors employed by the execute branch of government What cyst clare ths, Deputies Tunstall and Garcia were swo ofthe Orange County Shen's most ‘experienced dassfieation and special handing deputies. Both worked nthe Orange Count ln those ‘capacities formany years. During the years both became thoroughy familiar withthe exsence and function ofthe TRED records system, Each personally made thousands of entries inthe TRED stem “They understood tat Inmate moves were documented and often explained onthe TRED system, Both ‘ested that review ofan inmate's TRED records woul ely be the best way to determine when end why thtinmate’s housing was changed. Tunstall and Gara at least generly understood when they were frst calladto testy on the current motion what the suesto be discussed would be, and that these sues involved inmate movement within the [al Nelher mentioned the estence or ontentof the TRED reccds at any time during thelr Inka esimony on te current motions. “To perhaps clarty the record, this isnot the st time during this protracted hearing tat deputy “Tunstal'stestmony lacked ereiby. This cour did nt beleve the eater testimony of eter Tunstall or deputy dsc attorney Ere Peterson when they unsuccesfly ied to shit responsiblity for “selous discovery breach in another case tothe shoulders ofa forme federal prosecutor. In making its crediiy findings, the court ges substantl weight othe testimony of deputy Jonathon Larson another Special Handing deputy. Deputy Larson knew and worked with both Tunstall and Garcia His dies apcoximated thers. This court found Larson's acknowledgement of his informant responsible stralgntorward and credible: ‘Quesion: "Was one of your Jobs to kind of develop Informant inthe jl deniy them and manage thom if they were of assistance?” ‘Answer "| woul say yes." (Reporter's Transco, page 6740) ‘Thistestimony dretycontrades that ofboth Tunstall nd Garcia on this subject ‘The course found one aspect of deputy Wllam Grover’ testimony remarkably candid, Grover was nother longtime clasfstion and special handling deputy nsde the Orange County al. Grover knew and worked with both Tunstall and Gari for many yers. Deputy Grover testified that he was trained from “day ont..n clasifaton and special handing” (RT. 6700) that he was never to mention the cstence of the TRED records since they were part an internal sheriffs department secured data system and we don't sus (RT. 6702), Grover'stestiony Is often inconsistent with the recoletons ofboth Tunstall and Srcia on key ses ‘Asa resultof uch testimony, and this cours evaluation of the demeanor of hese witnesses they testified and the Inconsistency of ther various sworn statements, the court finds, as stated above hat ‘both Tunstall and Garca lacked cedity. The court further believes that these sheriffs deputies, due tothe tralnng and experience tentioaly falled to tell anyone outside of limited numberof hers personel at ny time aout the enstence of he RED record system, even when sich Information was called fr by questions asked of them underoath in court. InPeople.Gullen (2034) 227 Cal. App 934, which was discussed by this cout in its oigal ruling, ‘the well-respected presldng juetke of Grange County local Cour of Appeal wrote that trial court ‘may appropltelydimiss a criminal prosecution based upon a finding oF “outrageous goverment ‘eonduet” when such conduct Isso grossly shocking and so outrageous as to vile the unlversl sense of utc.” Guillen, supra, 227 Cal. App. 4a p. 2008, That rule may not sity apply t the current maton, however, snc thls defendant doesnot seek the dismissal of any charge. nfact he has entered ‘ult ples toll ofthe seriou charges fled agsnet im and doesnot askto withdraw his aly peas. Ratherhe asks that this court bar a penalty ta es arguable whether or not the evidence currently before this court related to alleged prosecutorial misconduct reaches the standard of “outrageous government conduct” dlscussed In Gullen and other ‘case, What canna be debated isthe fact that serous, ongoing dicover volstons continue to ecu ‘this case. This court therefore now elects to Impose ational sanctions fr these discovery vilation, rather than for any broader course of ongoing prosecutorial misconduct. Tiss consistent with the the acts committed by tls defendant on October 12,2011; 2) statements made by the defendant ‘before his booking atthe Orange Count si and 3) vem impact evidence. Any ational aggravating ‘evidence i eccuded from te People’s penalty casein chet presentation. Should any counsel fel tha: this court shoud reconsider any aspect of his order asa result of developments a al, before any ‘other aggravating evidence s mentioned nthe presence ofthe jury counsels ordered to broach the ‘ubjoct ith na cour outside the ur’ presence. This court believes that such evidence fs not ely 2 produce an “ritraryand capricious” vert snc evolves only evidence tet erect relates to evens that tne defendant himself has admitted through is own pleas of guilty, RECUSAL MOTION ‘Asfor the defendant's motion to recuse the District attorney's oe, the egal rules concerning recus remain the same as previously discussed. To justify recusa order, ts the defendant's burden to demonstrate that 2) the Distet Attorney hs conf of interest and) the confit is “so wave 2510 make» altri uke" Haraguchi Superior Cour (2008) 4 Cal. 4* 706,723, This court previously ‘ule thatthe defendant had flied to meet this burden, ‘tthe evidentiary ground has now shifted. nits orignal ung, tis court wrote that it had “nat lst confidence tat the duly elected District Atte of ths county haste ality to competent and _etlely complete the prosecution of tis serious mater” and therfore denied the recusal request. Ns rang was largely based on the cours conelision that any prosecutorial misconduct the court found in ‘other eases was not related to the misconduct inthis case, Therefore, the prior rlng concluded that "te unrelated misconduct becomes relevant othe resolution ofthe pending motion.” night ofthe recent evidence, the court no longer harbors ths bel Ins erga rng ths court exprested concern over the fot that “hroughout ths pending gation ‘tional materials that appear to have been subject otis court's Januar, 2033 discovery order have continued tc emerge.” Is now apparent thatthe saver station In this ass far worse than the cour previo realized, n facta wealth of potently relevant dsovery materil-an entre ‘computerzad database but and maintained by the Orange County her over the course of many Years whichis repository fr information related rect tothe very issues that this court was ‘raving a: 2 resut ofthe defendant's mation-remaned sere, despite numerous specif dscovety ‘ordesnsued by this cout, unt long after the ntl evidentiary hearing inthis ase was concludes nd rings were made [Asstated above, theres no eect evidence to suggest thatthe District Attorney actvlypartcipated ‘the conceslnent ofthis information from the defense an the cour. Which realy just aggravates the entre seuaton because someone has tobe In charge of criminal Investigations and prosection In (range Coury. Atstimes this may create a confit of interest between prosecutors bound by ther legal and ethical constraints and peace officers who may tr to cu legal comers forthe sake of expedeney or some other purpose. The evidence Inletes that such aconfletof intrest exstsin tis ase. Under such cheuritances isthe District Attome/sreszonsblty to resolve any such conflet by respecting and protecting the rule of aw athe than by Ignoring any attempt to compromise a suspect's statutoy ‘orconttusioal rights The evidence lndeates that such resolution has not ocurred inthis case ‘Aste cle aw enforcement ofcer in ths county the Dstt Atorney responsible forthe acions of his agents, nthe case the evidence demonstrates hat some of those agents have habitual gre ‘thelaw overan extended perio of tne to the detriment ofthis defendant. Asa esu, after reconsidering the evidence lt heard during the ntl phase of ths hearing along with the recent supplemental evidence, this court has reached the folowing conluson ‘The District Attorney has a conflict of interest inthis case which has actualy deprived ths defendant of due processin tne pat. And given ths ongoing confi, the Dre astomey's continued partake ‘his prose wl ely prevent thls defendant from reclving 2 fa tril inthe future. Ate aperiod cof what can at best be described as benlgnneplect concerning the actions of his aw enforcement partners, the Dstt Attorney cannot or wll at In this cae comply wit the dscovery orders ofthis court andthe related constutional and statutory mandates that guarentee this defendant's ight to due process anda fa trial. Therefore, the defendant's motion to reuse the ffce ofthe Orange County sre. Attomey must be and is ranted, Tis court des nt order the District Attorneys recusal as a punitive measure, As the Supreme Court seid in peone v. Bryan (2014 60 Cal. 4 335,374, recsal “isnot a mechanism to punlsh past rosectors mconduct”Recusal i insted remedial measure designed to insure that any fueure ‘ili fa Thats exact thi cour’ aim in sung this extraordinary recuse order. ‘CONCLUSION ‘certain spect ofthe District Attorney's performance in ths case might be described as eames of ‘rors but fer the fact that it has ben so sal defclet. There is nothing funny about thf. Infact what makes the stution here especialy lsconcering that tls performance has deprived tis defendant, ‘the people cf Orange County, and especialy he comunity of Seal Beach, of he timely resoluton of this case which al pars deerved And which should have, could have, and likely would have been acheved bu for ths performance usice deayedhas resulted Inthe denial fuse toll concerned ere, it that thought in ind this court now answers ts own questions: 1) Theaddtonal evidence presented convinces this court thatthe defendant has sffereda permnal due proces deprivation as a result of lnifcan dscovery oltions which thecour. was unaware of when it made ts inal findings and orders ‘As discussed in People vGuile, supra, 2 pages 1003-04, “The liitations ofthe Dve Process Cause of ‘the th Amendment come nt play ony when the (glovernment arty In question votes some protectd right of the defendant "(tng Hamotonv United States (1876] 425 US. 484, a 480) Here the cour finds tat when the People presented fase and/or Intentionally mileading testimony uring this defendants own motions the defendant's due process rights were vilated to hs personal devine, Tie 0 whether or not the prosecution wes ectuallyaware thatthe testimony of omy witness was ether false o intentionaly misleading since the Distr Atorney legal responsible for the ats of his agents Noto/thstanding tis finding, nthe exerese of ts lseretion the court elects to impose addtional sanctons related to the defendant’ fest motion (the metiono preclude @ penalty trian thismatte) ‘onthe bass ofits finding that serlous adtlnal discovery voatlons have occured since the cour. Issued singling Asa result of those srover violations, the court now orders that, dung the People's cas in chi presentation during the defendants penalty trial, evdence willbe limited to tht whieh 3) rect relates tothe defendant's conduct on October 22, 201 n Seal Beach; 2} statements ‘he defendant made before he was booked Into the Grange County all and 3 tim Impact evidence. ‘The defendants spect motion to preclude a penalty a's denied, ‘The People contend tha People Uribe (2013) 199 Ca. App negates the court's abiltyo impose addtional sanctions. This court respectfully dlesrees. The cases are dstinguishable, and the Ube cour ‘se observed that “when prosecutor misconduct impairs a defendant's consttutional ght ofa ‘tal Itmay constitute outrageous government conduct warranting sms” Ure, spr, at 8%. but today’s onde dismisses nothing, neler any charge nor anyother allegation or enhancement, Ner sre the atonal sanctions imposed based upon a finding of outrageous government conduct. Rather, these penalty tral sanctions are imposed pursuant to the iseretlon conferred on this court bythe Supreme Court in Jnkins, supra for serious dcovery vilatons. 2) The addtional evidence force his court to reconslde ts oil rug onthe recusal mote, ‘Asa resutof that econelderatin, thi court finds It necessary torecuse the entie offs of be (Orange County District attorney. vena ths te date, after more than two years of concerted effort by 2 team of OCDA's most ‘experienced prosecutors, the cout finds thatthe District Attorney lacks the apparent ability toachewe ‘amplance with his constitutional and statutory covery obligations inthis case This chronic falure stems from 8 conflet of Interest on the part ofthe Ostet Attorney 3 discussed herein. Tis onfleot Interesthas to date deprived the defendant of his right to due process an fal trl. Unies the tuations corrected immediately, wil continue tod so. The court makes ths inding despite the rte’ tpuation that, since this court made its pvotal discovery order In ate January of 2033, the People have produced over tiny thousand pages of informant related discovery Inti as, the Der Attorney's conf of Interest not imaginary. It apparently stems from his loyalty to his ew enforcement partners tthe expense ofhis other constitutional and statutory coblgton. nthe face of ths conflict of intrest the evdence demonstrates that, inthis case the Disret Artorneycannator wl no insure compliance by other team members wth the orders ofthis court. The defendant has 2 a result ofthis conflict of teres suffered a personal due proces lation ‘that as deprive him ofa rl for well over two years and wil key continue to do so inthe future. AS ‘result the Dsvet attorney andl of hs deputies must be recuse. Despite the foregoing rungs, this court remains fly aware of ts obligation to both this defendant and ‘this community. As the court observed in Gull, tal rights are implicated on both sides. ‘The rights ofthe respective partes here are extremely important ones, namely, defendant's right to2 flr tral and the People's right to prosecute persons beleved to be responsible forthe ‘commiséon of serous crimes.” Gullo, supra, at pages 1005-07, cng Ube, supra at 857-58, “These potently competing Hahts must be arly and ppropltely reconcle never case, based on ‘he fac of eachnddual case, California's criminal sie system Isto remain respected and viable. itis tscour’s espns t conscious engage in that reconllation proces ona case by ase ‘bas. th that esponsaity in mind, his cour finds that the evidence at hand inthiscase demonstrates ht addtional sanctions must be imposed here. The evidence also requtes thatthe Devic ttmeyand his deputies be rellevedof the essonsbities inthis mate. Those responses shall immediately be assumed by Colforna'sAtforney Generel. This case mst then proceed debertly tts just conclusion through a penalty trl during which uaifed representatives ofthe Orange Ceuny community will determine the appropriate punishment forthe crimes ths defendant has admit commiting over tre yer go. “The court once sala commends tigation counsel for thelr reparation and presentations during the hearings on thismetien. “ots MM