[00:00:02] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:00:04] Speaker 00:
My name is Jason Campbell.

[00:00:05] Speaker 00:
I'm here on behalf of the petitioner, Jacinto Valdivino.

[00:00:09] Speaker 00:
I'd like to reserve three minutes for rebuttal, please.

[00:00:12] Speaker 00:
I'll watch the clock.

[00:00:13] Speaker 03:
OK.

[00:00:15] Speaker 00:
This is a Laffer case, and I believe the deficient performance prong has been adequately briefed.

[00:00:22] Speaker 00:
The magistrate judge in the district court also issued an opinion with thorough analysis.

[00:00:28] Speaker 00:
So unless Your Honors have questions about that,

[00:00:31] Speaker 00:
I'd prefer to focus on prejudice, which was the basis upon which the state court denied relief to Mr. Valdivino.

[00:00:39] Speaker 03:
And in doing so, the— Before you get to that, let me just ask you this.

[00:00:47] Speaker 03:
Judge Beckman made a credibility determination here.

[00:00:50] Speaker 03:
Is there any evidence in the record other than the statement by your client and the statement by former counsel, Mr. Ruffcom, that would give us any thing to look at as to who's telling the truth?

[00:01:09] Speaker 03:
Your client alleged that there were three offers, plea offers made.

[00:01:14] Speaker 03:
He didn't take them because Mr. Ruffman said various things at various times.

[00:01:19] Speaker 03:
Mr. Ruffman said your client said he wouldn't accept a plea that involved jail time under any circumstances.

[00:01:24] Speaker 03:
But that's just what they said.

[00:01:26] Speaker 03:
Is there anything in the record that you can point to that would verify or buttress your client's claim?

[00:01:34] Speaker 00:
Absolutely, Your Honor.

[00:01:35] Speaker 00:
And I think that that's actually one of the

[00:01:38] Speaker 00:
chief concerns here is that Judge Bachman ignored the record for the most part.

[00:01:44] Speaker 00:
The reality is in this case, and I think one of the striking aspects of it is that Mr. Valdivino was out on bail.

[00:01:54] Speaker 00:
And he decided to go to trial on a time not waived basis, which is unorthodox in any situation.

[00:02:00] Speaker 00:
He's out on bail, especially if you accept the claim that he was concerned about his sick mother.

[00:02:07] Speaker 00:
And why would he go to trial on a time not waived basis?

[00:02:11] Speaker 00:
in a case where he's facing the rest of his life in prison.

[00:02:13] Speaker 00:
Well, the reason is because Max Ruffcorn told him that he had the possibility of a dismissal.

[00:02:19] Speaker 03:
Well, I know that's what your client says happened, and that's what you're saying, but I'm just saying, is there anything that would buttress what Ropman originally allegedly said to your client?

[00:02:29] Speaker 00:
Right, no, and I understand what you're saying, and I'm saying that the decision to go to trial on a time not waived basis

[00:02:37] Speaker 00:
is one that most defendants would not make, out of custody defendants would not make, but for the advice of counsel that there was some reason to do so.

[00:02:47] Speaker 03:
For what do you rely upon that comment?

[00:02:49] Speaker 00:
Because he had said that he wanted to, that his mother was sick.

[00:02:53] Speaker 00:
He was out of custody.

[00:02:54] Speaker 00:
There was, you know, typically when a defendant's out of custody, they prefer to remain out of custody as long as possible.

[00:03:01] Speaker 00:
And instead, he went to trial on this expedited basis, which is consistent with his claim, with Valdivino's claim, that rough corn had a strategy of trying to precipitate a dismissal.

[00:03:16] Speaker 00:
And as it turns out, a dismissal was never in the cards.

[00:03:19] Speaker 00:
I mean, that was an unrealistic outcome under any circumstances.

[00:03:24] Speaker 04:
Why was it so unrealistic?

[00:03:26] Speaker 04:
I mean, the issue here is whether the victim testifies.

[00:03:29] Speaker 00:
Well, that's the issue.

[00:03:31] Speaker 00:
And I think Magistrate Judge Hollows was correct on this, that Mr. Valdivino, immediately in the aftermath of the shooting, when he was interviewed by police, he admitted to the shooting.

[00:03:45] Speaker 00:
And so there was no issue of identity, nothing that could have

[00:03:50] Speaker 00:
where he could have made an argument that he wasn't involved.

[00:03:53] Speaker 00:
He had admitted to the shooting, now he had a claim that was in self-defense, but even the DDA on the case Fitzgerald said that it certainly wasn't a very strong claim of self-defense, especially with one of the shots hitting him in the back.

[00:04:11] Speaker 00:
The likelihood that he would have gotten a dismissal is almost nil.

[00:04:17] Speaker 00:
And Fitzgerald said that.

[00:04:19] Speaker 00:
Fitzgerald said, even without Santoya, I thought I could try this case and get convictions.

[00:04:24] Speaker 00:
And he was very confident and he testified.

[00:04:27] Speaker 00:
the state has not offered any evidence to the contrary.

[00:04:30] Speaker 00:
Fitzgerald seemed confident that based upon Valdivino's statements, based upon the fact there was a bullet fragment found, there was a holster, an empty holster found in Valdivino's possession, there were a lot of things out, would it have been ... All of which suggests that your client's options weren't

[00:04:49] Speaker 04:
real encouraging in terms of possibly beating it all together, except for the reality, and we see these cases all the time when defendants turn out to make wrong guesses or defendants counseled perhaps by the attorney make wrong guesses as to what's going to happen when trial proceeds.

[00:05:11] Speaker 04:
In this case, if the victim does not testify,

[00:05:16] Speaker 04:
Then the prospects of winning an acquittal do seem to be substantially larger, even if not quite as good as may have appeared to counsel at the time.

[00:05:26] Speaker 04:
So we're stuck with the EPTA standard trying to look back.

[00:05:34] Speaker 04:
How can we say that no reasonable jurist would come up with a conclusion that opted for the position the state is now putting forth, the position that was testified to by Mr. Ruffcorn, as opposed to accepting what your client, who admittedly fired the shot, was involved in gang activity, and whose credibility coming into the courtroom probably is under a cloud anyway?

[00:06:04] Speaker 00:
Well, and you said that the chances for an acquittal would have been better if Santoya didn't testify.

[00:06:10] Speaker 00:
And that seems to be obvious.

[00:06:12] Speaker 00:
I agree with that.

[00:06:13] Speaker 00:
But the chance of an acquittal, that doesn't make the chance of an acquittal great.

[00:06:17] Speaker 04:
No, but as compared, I mean, he's got a choice.

[00:06:21] Speaker 04:
And I get your point in terms of freedom now as opposed to what's going to happen in the future.

[00:06:26] Speaker 04:
But he's looking at some pretty serious charges.

[00:06:28] Speaker 04:
He's in for many years.

[00:06:32] Speaker 04:
The present value for time for a lot of young people, I value today more than the future.

[00:06:42] Speaker 04:
I get that, and that's your argument why he wouldn't have opted to go to trial because he was out at the time.

[00:06:52] Speaker 04:
And yet, the difference between

[00:06:56] Speaker 04:
getting out altogether or fairly soon looking at what's going to be a lengthy sentence if he accepts the deal, how can we be so confident that your client's testimony is what we should take as credible and what every reasonable jurist would take as credible, given that we see all the time people making the other choice?

[00:07:22] Speaker 00:
I understand, Your Honor.

[00:07:23] Speaker 00:
And again, what I would say is that, I mean, it's indisputable that Max Ruffcorn was operating under the mistaken belief that at a minimum,

[00:07:33] Speaker 00:
the Corpus Delicti rule would preclude admission of Valdivinos and culpatory statements.

[00:07:39] Speaker 00:
That was unsure.

[00:07:43] Speaker 00:
That's why Max Ruffcorn, and at the hearing, he was very clear.

[00:07:47] Speaker 00:
He said he thought that there would be a dismissal.

[00:07:49] Speaker 00:
He said that in his declaration.

[00:07:50] Speaker 00:
He said that in the October 27th hearing.

[00:07:53] Speaker 00:
So there was no doubt that Max Ruffcorn was operating under the belief

[00:07:59] Speaker 00:
that a dismissal was possible, not even an acquittal, but a dismissal, and not even having to go through the chance, the rolling the dice of a trial, that the DA would walk in and say, we're done.

[00:08:10] Speaker 02:
But the court held against him on that, that the court said it didn't happen, right?

[00:08:18] Speaker 02:
I'm sorry.

[00:08:18] Speaker 02:
I don't understand.

[00:08:19] Speaker 02:
The court upheld Ruffino's, or Ruffcorn's, statement that he didn't say that, right?

[00:08:26] Speaker 00:
No.

[00:08:28] Speaker 00:
Certainly the magistrate judge said that he thought that that was the primary basis for finding deficient performance was that Max Ruffcorn.

[00:08:37] Speaker 00:
And he said that at the October 27th hearing.

[00:08:41] Speaker 00:
He said that he believed that Mr. Valdivino's statements wouldn't come in, and that there would be a dismissal.

[00:08:48] Speaker 00:
And the DA, the case would, quote, go away.

[00:08:50] Speaker 03:
I think what I struggle with, as you very well know, Strickland has two prongs.

[00:08:57] Speaker 03:
The first prong has to do with counsel's

[00:09:00] Speaker 03:
performance being at a level well below that which would be normally acceptable.

[00:09:07] Speaker 03:
Since counsel is not required to be clairvoyant and be able to guess what was going to happen in the future, as I look at at least certainly the cases that we have, I'm not sure that counsel even violated the first prong.

[00:09:22] Speaker 03:
But even if you accept for a moment what the magistrate did that he did, here's a guy who

[00:09:29] Speaker 03:
He admits he shot this guy.

[00:09:32] Speaker 03:
And as my colleague has pointed out, he's looking at some serious jail time no matter what.

[00:09:39] Speaker 03:
Then your client, you know, once he's convicted, he abscends.

[00:09:47] Speaker 03:
And the district judge is left with the choice, or not district judge, the trial judge, is left with the choice of who's telling the truth, the attorney or the guy that the jury found was a liar and who has absconded.

[00:10:01] Speaker 00:
Well, there's a lot to wrestle with there.

[00:10:04] Speaker 00:
First of all, what you said, Your Honor, that he was going to do serious jail time no matter what, that's the crux of the deficient performance, because he was going to do serious jail time no matter what.

[00:10:15] Speaker 00:
But Max Ruffcorn said, no, this is going to be dismissed.

[00:10:18] Speaker 00:
You might be walking out of there that day.

[00:10:20] Speaker 00:
So that's the first point.

[00:10:22] Speaker 03:
There were three different pleas, three different times.

[00:10:25] Speaker 03:
And by the time he got to the third one, I wasn't saying that anymore, as I understand it.

[00:10:30] Speaker 03:
But your client, according to Roughcorn, said, hey, if there's any jail time involved, I'm not going to plead.

[00:10:37] Speaker 00:
Well, then let me just skip forward then to just address the credibility determinations and what I think is significant about them.

[00:10:45] Speaker 00:
And I think Taylor versus Maddox provides the framework for that.

[00:10:53] Speaker 00:
We're looking at this in terms of whether it was an unreasonable fact-finding procedure and whether the factual findings that Judge Bachman made are reliable.

[00:11:02] Speaker 00:
And you know, Max Ruffcorn, Judge Bachman said he had no incentive to lie.

[00:11:09] Speaker 00:
And whether that's true or not, I don't know.

[00:11:11] Speaker 00:
But what I do know is that Max Ruffcorn made material misrepresentations during the hearing.

[00:11:16] Speaker 00:
For instance, at the hearing, he said,

[00:11:19] Speaker 00:
point blank.

[00:11:20] Speaker 00:
I never told him that there was a chance that Santoya would not testify or that he would invoke his Fifth Amendment privilege.

[00:11:27] Speaker 03:
And what do you cite in the record that countermands that?

[00:11:32] Speaker 00:
So at the October 27th hearing, 2010, the first day of trial, which is the most transparent and honest

[00:11:39] Speaker 00:
statement we have from Max Roeckhorn, because he's an officer of the court.

[00:11:44] Speaker 00:
He's presumably telling the truth.

[00:11:46] Speaker 00:
He said, this plea deal, this is a quote, this plea deal that was just announced by the DA, the code requires, I believe, 30 days notice in writing, rather of any plea deal or reward or benefit for somebody's testimony.

[00:11:59] Speaker 00:
And I'm paraphrasing, but I forget what is in the code.

[00:12:01] Speaker 00:
The reason why that is important is I made no bones about how it is with pending felony charges, serious felony charges,

[00:12:09] Speaker 00:
that Adam Santoya would get up on this stand and not invoke the fifth.

[00:12:12] Speaker 00:
I suppose it's possible, but highly, highly unlikely.

[00:12:16] Speaker 00:
And absent the testimony of Santoya, then it is my opinion that there's no corpus.

[00:12:20] Speaker 00:
There's no other even slight evidence of corpus.

[00:12:23] Speaker 00:
And so any statement by my client and culpatory statements would not be coming in and the case goes away.

[00:12:28] Speaker 00:
That's Max Ruffcorn's vision.

[00:12:31] Speaker 00:
That was the time closest to the incident.

[00:12:35] Speaker 00:
That was a time when he's speaking to the court, an officer of the court,

[00:12:38] Speaker 00:
And he says he thought that Santoya would invoke the fifth.

[00:12:41] Speaker 00:
In his declaration, he said the same thing.

[00:12:43] Speaker 00:
And then lo and behold, in 2017, at the hearing, he says, no, I never said such a thing.

[00:12:50] Speaker 03:
He said he didn't say it to your client.

[00:12:53] Speaker 00:
Well, but he also said all along, I've been awaiting this notice referring to that fictitious 30-day notice.

[00:13:00] Speaker 00:
And if it was going to come, that this is what we're going to do with Mr. Santoya.

[00:13:04] Speaker 00:
I thought Mr. Fitzgerald just hadn't really taken a look at the case close enough to figure it out.

[00:13:08] Speaker 00:
And so again, this is his strategy, which he imparted to Valdivino.

[00:13:14] Speaker 00:
And he also said that at one point during that same hearing, he said, well, my client's relying on me to tell them what's best.

[00:13:21] Speaker 03:
And that's a strategy.

[00:13:22] Speaker 03:
That's a strategy.

[00:13:22] Speaker 00:
Right.

[00:13:23] Speaker 00:
So, I mean, the notion that he had, and I'm sorry, I did want to reserve time, but— You're eating up your time, so you can decide whether you want to use it or— Well, I have much to say, but I do want to reserve some time for a bottle.

[00:13:35] Speaker 00:
Thank you, Your Honors.

[00:13:36] Speaker 00:
Okay.

[00:13:36] Speaker 00:
Very well.

[00:13:38] Speaker 00:
Okay.

[00:13:40] Speaker 03:
We'll hear from Mr. Feinstadt.

[00:13:43] Speaker 03:
Is that right?

[00:13:44] Speaker 01:
Yes, Your Honor, Feinstadt.

[00:13:47] Speaker 01:
May it please the court, Deputy Attorney General Max Feinstadt for the respondent.

[00:13:53] Speaker 01:
This case comes down to a credibility determination.

[00:13:57] Speaker 01:
The Superior Court found that Petitioner's statement that he would have accepted a plea if not for trial counsel's advice was not credible.

[00:14:07] Speaker 01:
And Petitioner needs to show clear and convincing evidence on the record that

[00:14:15] Speaker 01:
that credibility determination was unreasonable.

[00:14:18] Speaker 01:
Let me ask you this.

[00:14:19] Speaker 03:
You heard your opposing counsel read from the record something that Mr. Ruffcom said in a hearing, not necessarily what he said to the defendant, which shows, if you will, a misunderstanding of what the rules were.

[00:14:40] Speaker 03:
Under prong one of Strickland,

[00:14:44] Speaker 03:
Is that necessarily conduct that fails to meet the standard of the community?

[00:14:51] Speaker 01:
No, Your Honor.

[00:14:53] Speaker 01:
There's no question that Mr. Ruffcorn had a misunderstanding of the rules at the hearing.

[00:15:01] Speaker 01:
It is unclear what he advised the petitioner about the law and about the strength of the case.

[00:15:15] Speaker 01:
It was certainly reasonable to think that if the victim did not testify, the case would be a lot weaker for the prosecution.

[00:15:26] Speaker 01:
Petitioner's claims about self-defense would have gone unchallenged at trial.

[00:15:34] Speaker 01:
He wouldn't have the victim's testimony that

[00:15:37] Speaker 01:
petitioner showed him a gun, which scared him to get in the car, that petitioner punched him in the face and searched for a place to basically take him out of the car and execute him.

[00:15:50] Speaker 01:
All the jury would have had is just petitioner's statements that, yeah, you know, I got him to have a chat with him, maybe get some information, and then I thought he was pulling a gun, and so that's why I shot him, which the jury could have found

[00:16:06] Speaker 01:
was reasonable self-defense.

[00:16:09] Speaker 01:
So having a strategy of pushing to trial, having a strategy of trying to get to trial before the victim has a deal in place to testify, particularly as Petitioner Candidly admitted, he knew it was a gang case, he knew there were the, he was a high-ranking Norteno member of the Norteno street gang,

[00:16:34] Speaker 01:
He knew gang members don't like to testify.

[00:16:37] Speaker 01:
They're not supposed to.

[00:16:39] Speaker 01:
So he had all this in his mind when he was deciding whether or not to plea.

[00:16:45] Speaker 01:
And he decided that he wanted to go to trial.

[00:16:48] Speaker 02:
What was the bad advice that Ruffcorn gave to the person who was the victim here?

[00:16:57] Speaker 01:
Your Honor, I would argue that it's not clear Ruffcorn gave

[00:17:03] Speaker 01:
petitioner any unreasonable advice?

[00:17:05] Speaker 01:
Telling petitioner we should go straight to trial so there's a chance the victim doesn't testify is reasonable advice, particularly in the context of this gang case.

[00:17:17] Speaker 01:
And petitioner argues that trial counsel misinformed petitioner about the law, that he told him about this 30-day rule and that he told him that the case would be dismissed.

[00:17:32] Speaker 01:
But trial counsel denied that at the hearing.

[00:17:35] Speaker 01:
And there's no contemporaneous evidence that trial counsel gave him these misstatements of law outside of what trial counsel said at the hearing, which doesn't indicate it's what he told petitioner.

[00:17:51] Speaker 03:
But if he had a misunderstanding, there is no contemporary evidence that proves that Ruffkorn told the defendant, the petitioner in this case,

[00:18:01] Speaker 03:
that the 30-day rule applied, or that he shouldn't testify?

[00:18:05] Speaker 03:
Or he shouldn't?

[00:18:06] Speaker 01:
Yeah.

[00:18:06] Speaker 01:
Right.

[00:18:07] Speaker 01:
But regardless, the question is, what was the effect of that misunderstanding?

[00:18:13] Speaker 01:
So even if trial counsel told Petitioner, there's a 30-day rule, or there might be a dismissal, or if the victim doesn't show up, that tells Petitioner the case

[00:18:32] Speaker 01:
is much weaker for the prosecution if the victim doesn't testify.

[00:18:37] Speaker 04:
So... Which is obviously true.

[00:18:40] Speaker 04:
I mean, it's reflected in the offers that the prosecution made.

[00:18:44] Speaker 04:
Exactly.

[00:18:44] Speaker 04:
So that's... But the defendant, petitioner here, but I get too complicated, too confused by the change in terminology, so I'll keep calling him the defendant

[00:18:55] Speaker 04:
doesn't understand even if he's told the 30-day rule.

[00:18:59] Speaker 04:
I mean, the reality is people in that position are trying to get whatever guidance they can.

[00:19:05] Speaker 04:
And so he hears, he alleges, he hears that, gee, I can beat this altogether if I take this path.

[00:19:17] Speaker 01:
Well, as the trial court noted, the first two offers

[00:19:24] Speaker 01:
occurred without a trial date set.

[00:19:28] Speaker 01:
Petitioner could do math and could see that if I reject this offer prior to 30 days to trial, the 30-day rule is not going to bar the victim from testifying.

[00:19:44] Speaker 01:
That's not going to play into his decision of whether to accept or reject an offer.

[00:19:52] Speaker 01:
The trial court noted that in its finding, that Petitioner was intelligent and that he could clearly see the 30-day rule was not a consideration at the time he was rejecting these pleas.

[00:20:11] Speaker 02:
Was there any basis for that 30-day rule in the court background or rules?

[00:20:22] Speaker 01:
Not necessarily for exclusion, Your Honor.

[00:20:24] Speaker 01:
Cal Penal Code 1054 says that evidence should be disclosed 30 days prior to trial, but that's not an exclusion.

[00:20:36] Speaker 02:
Kind of an agreement that they had with the prosecution and defense counsel or something in other cases.

[00:20:43] Speaker 01:
Well, the evidence was disclosed because the police reports of the victim and whatnot were disclosed, but whether somebody's actually going to testify is different than an evidentiary disclosure rule, because you may not know.

[00:20:58] Speaker 03:
To get back to the point you made a minute ago, there were three plea offers.

[00:21:03] Speaker 03:
The first two were more generous, but you're saying that because no trial date had been set, the 30-day rule, even if it existed,

[00:21:12] Speaker 03:
would have made no difference because the trial date had not been set.

[00:21:16] Speaker 03:
So you couldn't count on that.

[00:21:17] Speaker 03:
That was obvious.

[00:21:19] Speaker 03:
What about the third offer?

[00:21:20] Speaker 03:
Was the trial date set then?

[00:21:22] Speaker 03:
And if such a rule had existed, would it have made a difference?

[00:21:26] Speaker 01:
The third offer, the trial date was set.

[00:21:30] Speaker 01:
And so in that case, it could have made a difference.

[00:21:34] Speaker 01:
But again, we have the credibility determination by the court that he wasn't going to plea.

[00:21:41] Speaker 01:
regardless.

[00:21:43] Speaker 03:
The third plea, if I recall correctly, was much more severe than the original one.

[00:21:48] Speaker 03:
Is that correct?

[00:21:49] Speaker 01:
Correct, Your Honor.

[00:21:49] Speaker 01:
It was an 18-year floor.

[00:21:51] Speaker 01:
So it was unclear from the record what exactly that entailed.

[00:21:56] Speaker 01:
So it could have been anything from 18 years to an indeterminate sentence.

[00:21:59] Speaker 03:
And if I recall correctly, Mr. Ruffman testified that the defendant, a petitioner here, said he would accept no plea that involved jail time.

[00:22:11] Speaker 03:
Is that correct?

[00:22:11] Speaker 01:
Correct.

[00:22:12] Speaker 01:
Petitioner hinted at those reasons as well.

[00:22:15] Speaker 01:
He said, my mother's sick.

[00:22:17] Speaker 01:
I want to spend time with her.

[00:22:18] Speaker 01:
I don't want to go back to prison again.

[00:22:21] Speaker 01:
He was afraid of being put in the SHU in Pelican Bay.

[00:22:28] Speaker 01:
His conduct after trial indicates his desire to escape custody as well.

[00:22:36] Speaker 01:
he absconded and was gone for nearly two years before he was found indicates that he would basically do anything to avoid prison.

[00:22:46] Speaker 03:
So basically from the state's perspective, here's a situation where all you've got is the word of the petitioner and the word of the attorney.

[00:22:57] Speaker 03:
The judge said, OK, I've seen this.

[00:23:02] Speaker 03:
The jury didn't believe the petitioner.

[00:23:06] Speaker 03:
He absconded.

[00:23:07] Speaker 03:
He'd been gone for two years now.

[00:23:09] Speaker 03:
The other is an attorney.

[00:23:11] Speaker 03:
I've seen him before.

[00:23:12] Speaker 03:
He's now retired for, I think, 12 years.

[00:23:15] Speaker 03:
He has nothing to gain by misrepresenting that.

[00:23:18] Speaker 03:
I choose to believe the attorney.

[00:23:21] Speaker 03:
Is that basically what this case is at this point?

[00:23:23] Speaker 01:
Correct, Your Honor.

[00:23:25] Speaker 01:
Yeah.

[00:23:26] Speaker 01:
Everything that petitioner has pointed to is nebulous as to whether it indicates he would have taken an earlier deal.

[00:23:35] Speaker 01:
Because as we said, the fact that he went to trial time wave couldn't indicate he just didn't want the victim to testify.

[00:23:42] Speaker 01:
The fact that he absconded could indicate he was willing to do anything to avoid prison.

[00:23:48] Speaker 01:
So none of these things rise to that standard of clear and convincing to overturn this credibility determination.

[00:23:56] Speaker 01:
And that's what we need to defer to.

[00:23:58] Speaker 01:
If there are no other questions from the court, respond to it.

[00:24:03] Speaker 01:
Other questions?

[00:24:04] Speaker 03:
I think not.

[00:24:05] Speaker 03:
Very well.

[00:24:05] Speaker 01:
Thank you.

[00:24:05] Speaker 01:
Respond and submit.

[00:24:06] Speaker 01:
Okay.

[00:24:07] Speaker 01:
Counsel, you have some rebuttal time.

[00:24:10] Speaker 00:
Thank you.

[00:24:11] Speaker 00:
It wasn't a matter of whether it would be easier to, or whether acquittal was more likely, or what, the point is that

[00:24:20] Speaker 00:
Mr. Valdivino was led to believe that a dismissal was possible.

[00:24:24] Speaker 00:
So the reason why that's important is because if he was facing, and I think I did a rough calculation of perhaps 12 years minimum if he, if Santoya did not testify, just based on his own, his own statements, that was partly based on admission from the state in their brief.

[00:24:41] Speaker 00:
If he was looking at 12 years versus the rest of his life in prison, and there's a 16 year offer in the middle, and he knew he was gonna have to do 12 years,

[00:24:50] Speaker 00:
Why on earth would he not take the 16?

[00:24:53] Speaker 00:
And the problem is the reason why he didn't do that is because he was told that he was going to get zero if Santoya took the fifth.

[00:25:00] Speaker 03:
Again, with respect, counsel, what we struggle with here is we know what your client said, Mr. Ruffman said.

[00:25:08] Speaker 03:
Mr. Ruffman said he didn't say that.

[00:25:10] Speaker 03:
Indeed, he said just to the contrary.

[00:25:12] Speaker 03:
What is your response to the state's comment that the first two offers occurred

[00:25:20] Speaker 03:
before a trial date was set, and therefore any 30-day reference, if it were made, would have made no sense.

[00:25:27] Speaker 03:
He couldn't have tied it to anything.

[00:25:29] Speaker 00:
Yeah, just real quick.

[00:25:30] Speaker 00:
Your Honor said that Roughcorn, it's not clear that Roughcorn said that to Valdivino.

[00:25:33] Speaker 00:
They had a lot of communication.

[00:25:35] Speaker 00:
Roughcorn said that on October 27th.

[00:25:37] Speaker 00:
And I think that has to be assumed that that was communicated to his client if he's saying it on the record.

[00:25:42] Speaker 00:
But as to the 30-day rule, I do believe

[00:25:46] Speaker 00:
No one seems to have taken it seriously that the 30-day rule at a minimum did affect that last plea offer, which I think the record, contrary to what opposing counsel said, I think it did establish there would be a determinant top, but no one seemed to remember what that determinant top was.

[00:26:02] Speaker 00:
Nevertheless, even as to the first two offers, the idea that this 30-day rule existed,

[00:26:10] Speaker 00:
would have been yet one more way that Santoya might not have shown up or might not have been able to testify, which would have, according to Ruffcorn, caused a dismissal.

[00:26:21] Speaker 00:
So there's multiple ways.

[00:26:23] Speaker 00:
He might not have shown up because of the Fifth Amendment, invoking his Fifth Amendment privilege, the 30-day rule, or he just might not have shown up.

[00:26:30] Speaker 00:
It seems unlikely that he wouldn't have shown up at all because

[00:26:33] Speaker 00:
Your time is up.

[00:26:34] Speaker 03:
Let me ask my colleagues whether either has additional questions or canceled.

[00:26:38] Speaker 03:
I think not.

[00:26:38] Speaker 03:
Thank you both for your argument.

[00:26:40] Speaker 03:
We appreciate it.

[00:26:42] Speaker 03:
The case of Valdivino versus Acheli is submitted.

[00:26:47] Speaker 03:
We will now hear argument in the case of AIU Insurance Company