[00:00:12] Speaker 02:
Mr. Rivera's trial for strangling his girlfriend, by far the most prejudicial evidence was Jennifer Davidson's testimony that Mr. Rivera had repeatedly strangled her to the point that she saw stars and thought she might die.

[00:00:23] Speaker 02:
And Mr. Rivera's trial counsel recognized how damaging that testimony would be, and her strategy was to exclude it.

[00:00:31] Speaker 02:
She objected before trial, and then later she asked the judge to reconsider his admissibility ruling.

[00:00:37] Speaker 02:
But during trial, after the basis for admitting Davidson's testimony had evaporated, and there were then grounds to exclude the testimony, counsel failed to renew her objection.

[00:00:48] Speaker 02:
The California Court of Appeal found that this was not IEC, but that decision was objectively unreasonable.

[00:00:55] Speaker 02:
I'd like to start by addressing

[00:01:03] Speaker 02:
the facts in light of the state court evidence.

[00:01:08] Speaker 02:
So the California Court of Appeal found that there was a conceivable reason for trials counsel's actions that she made a tactical decision not to object to avoid the prosecutor admitting the arson conviction.

[00:01:22] Speaker 02:
in the record that support Mr. Rivera's IAC claim and that show counsel's perspective at the time of trial, which is what we're supposed to look at under... Help me with your D2 argument, because I don't see that the court made any finding of historical fact that's disputed.

[00:01:39] Speaker 01:
Basically, it was, the court was following the stringent line of cases saying that you

[00:01:52] Speaker 01:
that the district court found that was wrong.

[00:01:56] Speaker 02:
I think the historical fact is that this was tactical and that she was trying to avoid the posture.

[00:02:00] Speaker 01:
Well that's the essence of Strickland, that we indulge every presumption that this issue was tactical.

[00:02:06] Speaker 01:
But what was the historical fact?

[00:02:13] Speaker 02:
Well, let me take one step back just to sort of explain why I think this is a historical fact.

[00:02:18] Speaker 02:
So performance is a mixed question of fact and law.

[00:02:21] Speaker 02:
The ultimate determination that trial counsel's performance was reasonable is the legal determination.

[00:02:26] Speaker 02:
And then there are facts that can be the basis of the court's decision.

[00:02:29] Speaker 02:
And so when 2254D2 says, did the decision, was the basis of it the result of unreasonable determination?

[00:02:41] Speaker 02:
arson conviction was likely to be A. proffered by the state and B. admitted by the trial court.

[00:02:48] Speaker 02:
And both of those facts are just contradicted by the record.

[00:02:51] Speaker 02:
So the judge had told the parties at the eliminate hearing no convictions were coming in, not even any arrests were coming in.

[00:02:58] Speaker 01:
So the question is whether it is likely it would come in as opposed to it did come in or it didn't come in, which seems like a question of historical fact.

[00:03:16] Speaker 01:
repeat that I'm not sure sounds like the district court's determination was is it probable or not probable that's not a fact that's just a question probabilities well I think the finding was again to go back you know I think the finding is this was

[00:03:37] Speaker 02:
And so the state court went back and determined whether there was any conceivable reason.

[00:03:41] Speaker 02:
And the state court said, yes, there was a conceivable reason.

[00:03:43] Speaker 02:
This was tactical.

[00:03:44] Speaker 02:
But that decision that this was tactical and the council had made a decision strategically

[00:03:52] Speaker 02:
That's based on pure speculation.

[00:03:54] Speaker 02:
There's nothing in the record to support that, and the record contradicts it.

[00:03:59] Speaker 02:
So again, not only had the judge said no arson conviction coming in, the state had never even tried to proffer the arson conviction.

[00:04:05] Speaker 02:
When the judge was talking about how the state had to get Golic there to testify, the state never offered the arson conviction.

[00:04:15] Speaker 02:
judge was leaning very hard on the state to get Golick there to testify.

[00:04:18] Speaker 00:
So if we agree with you that this was unreasonable by the state court, whether it's law or fact, you get to de novo review.

[00:04:26] Speaker 00:
But I guess what I'm struggling with is how you can win on de novo review, because it seems like there was so much evidence against your client that I'm not sure this testimony really tipped the balance.

[00:04:36] Speaker 02:
In terms of the prejudice, wrong, Your Honor.

[00:04:39] Speaker 02:
So prejudice, we have to show

[00:05:08] Speaker 01:
people had intervened in disputes that they had that she was injured by him previously.

[00:05:16] Speaker 01:
The government points to all of this evidence in the record.

[00:05:20] Speaker 02:
How does that play into your analysis?

[00:05:24] Speaker 02:
Well, I think what's important in the analysis is the similarity between Davidson's testimony about all of these prior strangulations and then the fact that Ms.

[00:05:32] Speaker 02:
Hickson was strangled.

[00:05:33] Speaker 02:
And so the

[00:05:33] Speaker 02:
There was testimony by the people who lived on the property that the couple frequently argued.

[00:05:38] Speaker 02:
There was an insinuation that he had been violent towards her because they heard an argument and later saw her with a broken nose.

[00:05:44] Speaker 02:
But no one testified about how that happened.

[00:05:46] Speaker 02:
No one had actually seen them, seen Mr. Rivera be violent towards Ms.

[00:05:50] Speaker 02:
Hickson.

[00:05:50] Speaker 02:
And so- And Ms.

[00:05:51] Speaker 02:
Hickson, I think of my notes that Ms.

[00:05:53] Speaker 01:
Hickson told someone that Rivera had beaten, that Rivera tried to rape her and put a hand up her mouth and a knife to her throat.

[00:06:10] Speaker 02:
It wasn't immediately before.

[00:06:11] Speaker 02:
It was the day before.

[00:06:13] Speaker 02:
The morning that her body was found, another couple that lived on the property had had coffee with them this morning, chatted, said nothing was amiss.

[00:06:20] Speaker 02:
They both seemed pretty normal.

[00:06:21] Speaker 02:
Miss Hickson was maybe a little bit more quiet, but no bruises, no nothing.

[00:06:28] Speaker 02:
how close this case was.

[00:06:30] Speaker 02:
It really wasn't.

[00:06:31] Speaker 02:
The jury was out for a day and a half.

[00:06:33] Speaker 02:
The trial only took two and a half days for evidence to come in.

[00:06:36] Speaker 02:
They asked several questions during their deliberations.

[00:06:39] Speaker 02:
They asked for a read back of Tamara Wheaton's testimony, the woman who found Ms.

[00:06:43] Speaker 02:
Hickson, read back of the medical examiners.

[00:06:45] Speaker 02:
And I think really important here in terms of the strangulation and the similarity of the two events is the

[00:06:58] Speaker 02:
this rose to first degree murder.

[00:06:59] Speaker 02:
And we know that the jury was struggling with determining second or first degree murder because they asked a question of the judge, what the standard, what is premeditated, deliberate, willful, mean.

[00:07:08] Speaker 00:
I'm not sure why, how this other testimony affects that though.

[00:07:11] Speaker 00:
I mean, the length of how long it takes to strangle someone I thought was how you're going to get from second degree to first degree.

[00:07:18] Speaker 00:
And that's, I'm not sure how that's affected by the testimony that you're contesting.

[00:07:23] Speaker 02:
Well, I think the fact that he had perhaps done it before, perhaps knew how long you could strangle someone and they pass out, but not die.

[00:07:30] Speaker 02:
I think that was relevant.

[00:07:31] Speaker 02:
I think that's what the prosecution was arguing.

[00:07:33] Speaker 02:
If you go back to 4ER646, that's around where the prosecution is saying, how are you going to determine whether this was willful, deliberate, premeditated?

[00:07:43] Speaker 02:
You get to consider the prior domestic violence.

[00:07:51] Speaker 02:
he did this with Ms.

[00:07:51] Speaker 02:
Hickson.

[00:07:52] Speaker 02:
It's that this particular manner of crime, of abuse that Jennifer Davidson testified to is the exact thing that we're alleging happened here, and he essentially knew what he was doing, knew how long it would take, because that was the argument, was it, you know, a minute or two, he knew how long this would take, and you get to consider Jennifer Davidson's testimony in determining whether this met the first-degree murder standard.

[00:08:14] Speaker 02:
I'll reserve it unless Your Honor's up.

[00:08:16] Speaker 02:
Thank you.

[00:08:32] Speaker 04:
Your Honor, turning first to the first topic of discussion today regarding the D2 determination from the court.

[00:08:39] Speaker 04:
As the court observed in its early remarks, this was not an historical fact that appeared in the state court's appeal.

[00:09:05] Speaker 00:
So are you saying that a probability can't be a fact?

[00:09:10] Speaker 04:
Not a historical fact.

[00:09:13] Speaker 04:
A probability under Strickland would probably be a, not to use the phrase, but a legal conclusion under Strickland.

[00:09:20] Speaker 04:
That would be the deficient performance part of Strickland.

[00:09:23] Speaker 00:
But so, I mean, here the judge had said the convictions don't come in and had also said if you can't get the testimony of the girlfriend

[00:09:36] Speaker 00:
girlfriend, right, or wife.

[00:09:38] Speaker 00:
So why don't those facts amount to facts that would contribute to a prediction about what the court would have done with an objection?

[00:09:46] Speaker 00:
It seems like saying the judge – yes, there is a bit of a probability, but a prediction about whether the judge would have stuck to the old ruling seems like a fact about what the judge would have done.

[00:09:57] Speaker 00:
No?

[00:09:58] Speaker 04:
Well, it's applying the stricken presumption of what a defense attorney would have conceivably thought

[00:10:06] Speaker 04:
had this variance between the district attorney's offer of proof.

[00:10:09] Speaker 04:
As we pointed out in our brief, state law allows a trial court to revisit either on its own if it wants to or on a request from a party to revisit a ruling in limiting.

[00:10:19] Speaker 04:
So the claim is that once Ms.

[00:10:22] Speaker 04:
Davidson or Ms.

[00:10:27] Speaker 04:
prosecution's law for proof that would have allowed the trial court under state law upon request to revisit that ruling and it would have had the discretion to do so.

[00:10:36] Speaker 00:
It definitely would have and that's a question of law right like could this have been admissible seems like a question of law but what this particular judge had said and would likely do given what the judge had said seems like arguably a question of fact.

[00:10:50] Speaker 04:
Well I think the way the motions eliminate played out before trial everybody seemed to be under the assumption that

[00:11:11] Speaker 04:
balancing the probative value versus the unfair prejudice of particular evidence.

[00:11:15] Speaker 04:
At no point did anybody, let alone the defense, dispute the foundation that this event had happened, that the arson conviction would have qualified under California evidence code section 1109 to be an uncharged act of domestic violence.

[00:11:30] Speaker 04:
It's really just the

[00:11:42] Speaker 04:
Yes, Your Honor, but that arose in a particular context.

[00:11:45] Speaker 04:
It was applying a different standard.

[00:11:46] Speaker 04:
So when the trial court made those remarks, it was addressing a motion that one of the parties had made about whether, if hypothetically, Mr. Rivera had testified, could he be impeached with a prior conviction of moral turpitude, which is a different standard than California evidence code section 11.

[00:12:19] Speaker 04:
where trial courts have allowed this type of evidence in arson prosecutions because of assuming there's a nexus with that domestic violence angle that could qualify under California evidence code section 1109.

[00:12:32] Speaker 00:
So even if you're right and this would have come in the arson event

[00:12:43] Speaker 00:
Even assuming you're right that the arson would have come in, how is it a reasonable strategy to say that we'll let the testimony come in instead of this one conviction?

[00:12:52] Speaker 04:
The testimony from Ms.

[00:12:54] Speaker 04:
Davidson.

[00:12:55] Speaker 04:
Well, the defense counsel, again, was trying to do damage control.

[00:13:01] Speaker 04:
And so what she was trying to do is focus her attention up on the potential unfair prejudice of these uncharged acts.

[00:13:07] Speaker 04:
There are more acts regarding the ex-wife, Ms.

[00:13:11] Speaker 04:
Davidson,

[00:13:21] Speaker 04:
evidence.

[00:13:22] Speaker 04:
The defense counsel trying to do that, she objected once during trial, received it once before trial, once in trial right before the witness is testified.

[00:13:31] Speaker 04:
Ultimately, it was unsuccessful.

[00:13:33] Speaker 04:
And so, once

[00:13:37] Speaker 04:
of trial, the defense attorney has to make a judgment call about, do I really want to press this argument a third time?

[00:13:43] Speaker 00:
And so under the Etna standard- But given that the judge had said, if Gullick doesn't give you the link in the middle of the domestic violence, we're not going to have the older domestic violence, I don't understand how the strategy is.

[00:13:55] Speaker 00:
Well, OK, let's let Davidson testify to all of this similar strangling.

[00:13:59] Speaker 00:
That doesn't make sense as a strategy, does it?

[00:14:02] Speaker 04:
It is, because it could be seen, again, applying the

[00:14:07] Speaker 04:
principles under colon versus pinholster, Yarborough versus Gentry.

[00:14:11] Speaker 04:
Because this claim was raised on direct appeal, the record doesn't provide insight about why trial counsel did what they did.

[00:14:17] Speaker 04:
So this case law allows the court, the state court in particular, to consider conceivable tactical reasons why she did what she did.

[00:14:26] Speaker 04:
And that could be seen as a broader picture of risk management particularly.

[00:14:31] Speaker 00:
But the risk management would be

[00:14:34] Speaker 04:
I'd rather have the Davidson testimony than the arson conviction.

[00:14:56] Speaker 04:
So that would have been the point in which defense counsel had to make a decision.

[00:15:00] Speaker 04:
How much do I want to rely on that variance as a basis to bring in the objection?

[00:15:06] Speaker 04:
And again, even though it is related to the uncharged act, it would have been technically a different objection because all the objections up to that point would have been

[00:15:27] Speaker 03:
to justify not objecting later.

[00:15:30] Speaker 04:
Yes, Your Honor, the trial court said part of its rationale about why it was going to let Ms.

[00:15:37] Speaker 04:
Davidson testify was because of Ms.

[00:15:39] Speaker 04:
Golich's proffer testimony.

[00:15:41] Speaker 04:
The prosecution did what the trial court wanted it to do.

[00:15:44] Speaker 04:
They transported her from state prison, came to court.

[00:15:47] Speaker 04:
She testified.

[00:15:48] Speaker 04:
Obviously, she denied

[00:15:54] Speaker 00:
I mean, the reason that the judge said you needed the middle person was to give a link in the chain of domestic violence back to the older person.

[00:16:01] Speaker 00:
And once she says there was no domestic violence, you don't have the link.

[00:16:04] Speaker 00:
So I don't understand how that helps.

[00:16:06] Speaker 04:
Well, we do still have the testimony.

[00:16:07] Speaker 04:
And that's what the trooper, I think, was pressing the prosecution to do.

[00:16:10] Speaker 04:
Because recall, in the record, the prosecution was having trouble getting this inmate prisoner transported.

[00:16:17] Speaker 04:
And so the court was warning the prosecution,

[00:16:28] Speaker 04:
Ms.

[00:16:29] Speaker 04:
Goldick ultimately did testify, and she did provide key facts.

[00:16:32] Speaker 04:
She testified that there was a fire at the house that she lived in.

[00:16:35] Speaker 04:
She admitted she lived there.

[00:16:36] Speaker 04:
She admitted that the defendant and her had an argument right before this fire had started.

[00:16:42] Speaker 04:
We also heard testimony from the other evidence, particularly from Ms.

[00:16:46] Speaker 04:
Davidson, that often what happens in domestic violence cases

[00:16:58] Speaker 04:
I'm sorry, can I interrupt you?

[00:17:01] Speaker 00:
So, say you lose on this, what is your argument about prejudice if we're starting on de novo review?

[00:17:07] Speaker 04:
Even on de novo review, it was not prejudicial.

[00:17:10] Speaker 04:
Although the state's case has some circumstantial evidence regarding particularly the fatal act,

[00:17:20] Speaker 04:
of guilt, we have the witness testimony of what the defendant did before.

[00:17:25] Speaker 04:
Recall, as I co-remarked earlier, there was unchallenged evidence regarding escalating violent incidents between the victim and Mr. Rivera.

[00:17:34] Speaker 04:
There was even evidence about something that had happened at 9th Point the day before the charge of murder.

[00:17:41] Speaker 04:
We have DNA evidence.

[00:17:42] Speaker 03:
Well, DNA doesn't mean much in this context when they were in an intimate relationship.

[00:17:46] Speaker 03:
It's one thing if they were strangers and you find DNA evidence.

[00:17:50] Speaker 03:
left together were intimate relationships, the DNA doesn't mean much here.

[00:17:54] Speaker 04:
Well, it's not just the mere fact that there was DNA, it's the location.

[00:17:58] Speaker 04:
Recall that the prosecution theory that this was death by strangulation, and so where they found the DNA was the point that the prosecution had emphasized that trial.

[00:18:07] Speaker 04:
DNA was on the neck and the fingers and the hands, that would have been the places where, had there been a struggle during a strangulation by hand, that's where you would have expected to see DNA, and that's ultimately where it was found.

[00:18:18] Speaker 04:
We also have the evidence from the medical examiner, I think my time's about to run out, but the medical examiner opined that it would have taken at least two to four minutes of sustained substantial strangulation to kill the victim.

[00:18:30] Speaker 04:
That would make an accident almost impossible.

[00:18:34] Speaker 04:
I'm happy to answer any questions the court has.

[00:18:38] Speaker 01:
Apparently not, thank you.

[00:18:39] Speaker 04:
Please affirm, thank you.

[00:18:42] Speaker 01:
We have a couple minutes left for rebuttal.

[00:18:45] Speaker ?:
Your honor.

[00:18:48] Speaker 02:
First, to your honor's point, Judge Friedland, one thing that we have to keep in mind about whether this would have been meritorious and whether a reasonably competent defense attorney would have objected is also the legal standard here.

[00:18:58] Speaker 02:
1109E says this is presumptively inadmissible

[00:19:04] Speaker 02:
is interest of justice balancing the 403 analysis.

[00:19:07] Speaker 02:
So once Goulet testifies that there's no abuse, as your honor pointed out, there's now that there's no link there.

[00:19:13] Speaker 02:
And so it goes back to being presumptively inadmissible unless the judge makes this finding.

[00:19:17] Speaker 02:
And there was no basis to make that finding.

[00:19:19] Speaker 02:
Once Goulet testified that.

[00:19:20] Speaker 01:
You're just thinking that up, though, right?

[00:19:21] Speaker 01:
Because the court ruled twice that it would allow the information in on the ad that talks about staleness.

[00:19:30] Speaker 01:
The staleness isn't part of the

[00:19:34] Speaker 01:
There's nothing in the statute saying that that's the case.

[00:19:41] Speaker 02:
That's the way the statute is written, Your Honor, is it?

[00:19:43] Speaker 02:
Let me grab it.

[00:19:51] Speaker 02:
It says, evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court does the balancing.

[00:19:58] Speaker 02:
And so the court here

[00:20:01] Speaker 01:
twice and said it was admissible and refers to Ms.

[00:20:06] Speaker 01:
Golich's testimony and says it's important in his thinking, but then Golich did

[00:20:14] Speaker 02:
Well, I think what's important is what the judge explicitly said, and this ties into another point.

[00:20:19] Speaker 02:
He didn't just say that Golick had to take the stand and testify.

[00:20:23] Speaker 02:
The judge says at 4ER-429, the reason I think it isn't so stale to be excluded is that there is similar conduct with a woman after Ms.

[00:20:31] Speaker 02:
Davidson and before Ms.

[00:20:32] Speaker 02:
Hickson.

[00:20:33] Speaker 02:
So I think the court's earlier ruling is correct.

[00:20:35] Speaker 02:
And then he explains later at 434,

[00:20:38] Speaker 02:
The reason it's not too stale is the fact that Miss Golick was going to present an event in 2005.

[00:20:44] Speaker 02:
So she has to specifically testify that he abused her in 2005.

[00:20:48] Speaker 02:
That's the basis of the Judges 403 or 352 balancing.

[00:20:52] Speaker 02:
It's not just that she takes the stand and says anything.