[00:00:01] Speaker 03: Good morning. [00:00:02] Speaker 01: Good morning. [00:00:03] Speaker 01: Good morning, Your Honors. [00:00:08] Speaker 01: My name is Greg Ellis, and I'm here on behalf of Appellant Raul Quiroz. [00:00:12] Speaker 01: I'd like to reserve five minutes for rebuttal, please. [00:00:14] Speaker 03: Thank you. [00:00:14] Speaker 03: Well, thank you for telling me who you are. [00:00:16] Speaker 03: Every day, no one wanted to tell me who they were, and I had to keep asking, please tell me who you are. [00:00:21] Speaker 03: All right, go ahead and proceed. [00:00:24] Speaker 01: Sure. [00:00:26] Speaker 01: We covered a lot of ground in the briefing, and I think it was pretty thorough. [00:00:31] Speaker 01: What I'd like to do this morning, in addition to answer questions the court might have, is step back and take one category of ineffective assistance and look at that with a wider lens to explain how we view determining the error, whether there's error or not, the first prong of Strickland. [00:00:54] Speaker 01: The category I'm going to take is the audio recording, the clandestine jailhouse audio recording. [00:01:02] Speaker 01: And there are a lot of issues that sprung off of that. [00:01:09] Speaker 01: But basically, the audio recording itself is the nucleus. [00:01:14] Speaker 01: And the conduct or the omissions of trial counsel relating to that is what gave rise to a cascading series of errors. [00:01:24] Speaker 01: When we talk about cumulative prejudice, which we also, I'm not planning to talk about today, but I can, [00:01:32] Speaker 01: That is a situation where something might not be prejudicial, but when various elements of error are brought together, as the court knows, the combined effect is prejudicial. [00:01:48] Speaker 01: But the term cumulative error, and I tried to clarify this a bit in the reply brief, and I want to emphasize it again here, does not mean that if you have one [00:02:01] Speaker 01: omission, one morsel of conduct that's not error, and you have another one that's not error, you can bring them together and say, combined, they constitute error. [00:02:16] Speaker 01: We understand that. [00:02:17] Speaker 01: But what we are arguing is something like this court talked about in Browning, that it's more of an ongoing and continuous [00:02:30] Speaker 01: below standard representation regarding a category, a particular category. [00:02:35] Speaker 01: So when deciding, for example, whether his review of the audio tape was too cursory, he didn't even realize it was only 19 days. [00:02:46] Speaker 02: I have a question on the audio. [00:02:48] Speaker 02: It was not clear where the audio resurfaced, the original audio. [00:02:55] Speaker 02: Did that ever come up? [00:02:56] Speaker 02: Was that reviewed in state court? [00:02:58] Speaker 01: What happened was, yeah, it's not clear what the original audio is. [00:03:08] Speaker 01: On habeas, I asked for it. [00:03:12] Speaker 02: So did somebody have an opportunity to listen to the original audio at some point? [00:03:21] Speaker 01: Not from the defense team. [00:03:23] Speaker 01: And what happened was, [00:03:25] Speaker 01: This issue, of course, came up on habeas. [00:03:27] Speaker 01: We couldn't bring it in the direct appeal. [00:03:29] Speaker 01: I sent the letter to the DA and said, you know, this is not the original. [00:03:34] Speaker 01: My expert tells me this is stepped on, and we need to see the original, please. [00:03:39] Speaker 01: And they responded, what we gave you is what we have. [00:03:42] Speaker 01: And that's it. [00:03:43] Speaker 03: Now, what I had was- But maybe you can sort of surround that. [00:03:47] Speaker 03: I have some questions just because- Sure. [00:03:51] Speaker 03: Loftus does say he listened to some of the video, correct? [00:03:57] Speaker 03: Yes. [00:03:58] Speaker 03: I don't see anything, my understanding of the record as it's before us, that your client never said anything to Loftus about Kano confessing at the time. [00:04:18] Speaker 03: that that came later, because you said you didn't bring up on direct appeal. [00:04:24] Speaker 03: So when's the first time Mr. Kittos said that Kano confessed on this video? [00:04:34] Speaker 01: In the habeas, we have a declaration from Mr. Kittos, where he said, I told, he kept telling trial counsel all the inculpatory stuff. [00:04:46] Speaker 01: all the inculpatory statements, whether by Kano or by Rachel Burr, her inferences. [00:04:54] Speaker 01: He kept saying, if you listen to the audio, you will see I never said that. [00:04:59] Speaker 01: And we have his declaration saying that. [00:05:02] Speaker 01: And I thought we had cited it in terms of him telling Loftus. [00:05:09] Speaker 03: But what does Loftus say? [00:05:11] Speaker 03: Does Loftus say that your client told him that? [00:05:15] Speaker 01: You know, off the top of my head. [00:05:17] Speaker 01: Well, that's kind of important. [00:05:23] Speaker 01: OK. [00:05:23] Speaker 01: I actually have his declaration here. [00:05:25] Speaker 01: So if the court will indulge me for one second. [00:05:58] Speaker 01: You know, quickly looking at it, I don't see that he said anything. [00:06:04] Speaker 01: But in terms of the habeas proceeding, what Mr. Kiro said was sufficient to make a prima facie showing. [00:06:13] Speaker 01: But also, I don't even think it's necessary, because I don't think that our position is [00:06:23] Speaker 01: that I'm sure that Mr. Kiros told Mr. Loftus, I never confess. [00:06:34] Speaker 01: But I don't think that's a necessary element, because Loftus's litigation of the case going forward [00:06:46] Speaker 01: reflected that he did not believe the client confessed either. [00:06:52] Speaker 03: Okay, do you allege that the un-listened-to portions of the recordings contained exculpatory evidence? [00:06:59] Speaker 01: Yes. [00:07:01] Speaker 03: And what is your best evidence of that? [00:07:06] Speaker 03: So is there any evidence in the record that we now have a recording that says [00:07:15] Speaker 03: Kano, I did it. [00:07:17] Speaker 01: That's a two-level question, because the audio that we had, so no one has heard the audio that I think Rachel Burr listened to, which was given to her by her husband, who ran the jailhouse operation. [00:07:37] Speaker 03: The audio that you have, is there anything in that audio that's exculpatory? [00:07:42] Speaker 01: There is conversation in that between Cano and Quiroz where [00:07:49] Speaker 01: It's we've had two experts listen to it because we don't You know, it's it's difficult. [00:07:56] Speaker 01: We had one expert. [00:07:57] Speaker 03: We had an audio expert and then you're kind of just tell me Okay, what the evidence says is that evidence do you have that's in the record? [00:08:06] Speaker 03: There's that's exculpatory. [00:08:08] Speaker 01: Okay, there's Burr testified that [00:08:12] Speaker 01: Kiros said stuff. [00:08:14] Speaker 03: But on video, on the audio. [00:08:15] Speaker 01: On the audio, right. [00:08:16] Speaker 01: On the audio. [00:08:17] Speaker 01: I'm trying to get my arms around what you have. [00:08:18] Speaker 01: OK, I understand. [00:08:19] Speaker 01: I'm sorry. [00:08:20] Speaker 03: We're talking past each other. [00:08:22] Speaker 01: We do a little context, so I apologize. [00:08:25] Speaker 01: There are back and forth conversations with Kano and Kiros where Kiros, according to our point of view, [00:08:37] Speaker 01: did not say, I killed this guy. [00:08:39] Speaker 01: That there's a dialogue that says, did you hear about that? [00:08:43] Speaker 01: And Kiro said, yeah, was that you? [00:08:45] Speaker 01: And then he said something like, yeah, I smoked him, or I did this, or something. [00:08:50] Speaker 01: Our people say, our, my associate, and then the audio experts say that was, [00:08:57] Speaker 01: Cano, who said that, trying to intimidate, continue to intimidate, Kiros. [00:09:03] Speaker 00: And Burr testifies that she did not hear him say that. [00:09:05] Speaker 01: She did not hear him say that. [00:09:07] Speaker 00: I've got a different question, and that is, he was convicted on one of two alternative theories. [00:09:14] Speaker 00: One is that he was the shooter, and the other one is that he aided and abetted. [00:09:18] Speaker 00: Now, if he's convicted on aided and abetted, I don't know how much this tape helps you, even if the tape unambiguously says, I didn't do it. [00:09:27] Speaker 00: Because on an aided and abetted theory, he doesn't have to have done it. [00:09:32] Speaker 01: I think the reason the tape, he was convicted, okay, the one, we don't, we never really had aiding and abetting. [00:09:39] Speaker 01: They were given the instruction. [00:09:42] Speaker 01: And but it never was broken down that way. [00:09:45] Speaker 01: But as I recall it, but the enhancement for using a gun in the commission of the crime was found not true by one person. [00:10:02] Speaker 01: And then all the other 11 jurors found it to be true. [00:10:06] Speaker 01: So we argued on direct appeal that implicitly that juror [00:10:11] Speaker 01: was finding he was an aider and abetter, but we then did the whole argument about why the prosecution didn't meet the requirements of aiding and abetting, and we showed that. [00:10:20] Speaker 01: So when it came to habeas, we took what we had, which we had to, but the point is that [00:10:28] Speaker 00: Are you still arguing that there was insufficient evidence to support aiding and abetting? [00:10:34] Speaker 01: No, we did not. [00:10:35] Speaker 01: We didn't make that. [00:10:36] Speaker 00: So I accept then that there was enough evidence of aiding and abetting. [00:10:41] Speaker 00: So I'm back to my question then. [00:10:43] Speaker 00: Why does it matter whether he was the shooter or not for our present purposes? [00:10:48] Speaker 01: Because he was convicted of being the shooter. [00:10:57] Speaker 01: He had to have been, because otherwise, in other words, 12 people didn't say aiding and abetting. [00:11:04] Speaker 01: So we had at least 11 people who said he was the direct shooter. [00:11:09] Speaker 00: Well, he was convicted of first degree murder on one of two theories. [00:11:13] Speaker 00: One, that he was the shooter, and the other one was the aider and abetter. [00:11:17] Speaker 01: But we think it's possible to infer from the actual breakdown of the ballots, because the only thing that led to the aiding and abetting would have been the enhancement. [00:11:29] Speaker 01: And the enhancement shows that 11 people found he used a weapon in the commission of the crime. [00:11:35] Speaker 00: Well, 11 did, but one did not. [00:11:38] Speaker 00: One did not. [00:11:39] Speaker 00: So the only thing he was convicted of was first degree and fell into possession. [00:11:44] Speaker 01: Yes. [00:11:45] Speaker 01: Yes. [00:11:45] Speaker 00: So, in other words, there were two theories on the table and it looks as though one of the jurors, I agree with you, one of the jurors convicted on aiding and abetting. [00:11:57] Speaker 01: The reason, our position on this is that Cano [00:12:01] Speaker 01: I mean, if you, so I'm working backwards through the IAC. [00:12:06] Speaker 01: If Loftus had hired somebody, or if he had, when he had objected to Kano, because this audio tape covered the time when Raul, when Mr. Kuro supposedly confessed. [00:12:20] Speaker 01: And so to just let it lie dormant and not even go to the court and say, Your Honor, we have a problem here. [00:12:27] Speaker 01: The prosecutor told the jury they can't hear or read a transcript of their recording because it's unintelligible. [00:12:35] Speaker 01: But now you have a police witness who's going to say things and says things bad for us, even though she said, well, I didn't hear him confess. [00:12:42] Speaker 01: She also said, well, that might have been on another part of the tape I didn't listen to. [00:12:46] Speaker 02: Was the tape ever, was there ever a motion at some point afterwards, I know there wasn't at the trial level, but a motion to suppress the confession based on coercion? [00:12:59] Speaker 01: We raised that on direct appeal. [00:13:04] Speaker 03: Which means you raised it in, you also raised it in the trial court. [00:13:07] Speaker 01: We raised it here, yeah. [00:13:08] Speaker 03: You raised it in the trial court, you raised it on direct appeal, and then you're raising it again here. [00:13:13] Speaker 03: So there's the issue of [00:13:15] Speaker 03: do you get to do it again here? [00:13:17] Speaker 03: I realize we're taking you, you're using up most of your rebuttal time. [00:13:21] Speaker 03: I know, we have to have the questions. [00:13:24] Speaker 01: I want to make sure I'm explaining it right, because it gets a little- I'm sorry. [00:13:28] Speaker 01: No, is that what you were wondering? [00:13:29] Speaker 01: Because of the double levels with IAC, and it gets a little attenuated. [00:13:36] Speaker 01: But we're saying that that's one of the- well, he tried to. [00:13:43] Speaker 01: He tried to create a record on the trial, at the trial, of coercion by cross-examining Kano. [00:13:52] Speaker 02: But there was no motion to suppress the statement. [00:13:55] Speaker 02: And then you move on to the appeal. [00:13:57] Speaker 02: And was there a hearing on that at the state level? [00:14:01] Speaker 02: Was there a decision on that? [00:14:02] Speaker 01: No. [00:14:02] Speaker 01: The only time, in the appellate level, the only time, because I think there were the two coercions. [00:14:11] Speaker 01: One was Ruben Gonzalez. [00:14:13] Speaker 01: In the other words, so maybe it applied to both. [00:14:17] Speaker 01: But the Court of Appeal, I believe, on direct appeal, said you don't have a record, sufficient record, to say on the face of this record, there was coercion. [00:14:25] Speaker 01: So then we circle back around with habeas. [00:14:28] Speaker 03: Because the confession isn't a confession to the officer. [00:14:31] Speaker 03: It's people talking through the toilet, isn't it? [00:14:35] Speaker 01: No, it was to Kano, who was not an officer. [00:14:38] Speaker 01: He was an inmate. [00:14:39] Speaker 01: Well, but he's not an officer. [00:14:41] Speaker 01: Right. [00:14:42] Speaker 03: And Kano was impeached because he was trying to work down his own issues. [00:14:50] Speaker 03: He had felony convictions, correct, and he had inconsistencies in his testimony. [00:14:56] Speaker 01: Right. [00:14:57] Speaker 01: And the prosecutor, though, said, you know, don't believe Kano by himself. [00:15:00] Speaker 01: You need corroboration, and we have it. [00:15:02] Speaker 01: You have it. [00:15:02] Speaker 01: Now you can convict him. [00:15:04] Speaker 01: Rachel Burr. [00:15:05] Speaker 01: And all of that was about trial counsel should have brought some kind of a motion. [00:15:13] Speaker 01: How can it not be ineffective assistance when all these kind of little moments are happening? [00:15:22] Speaker 01: And because he doesn't know what's on the audio tape, he can't respond. [00:15:26] Speaker 03: But did you object in the trial court to the admission of that testimony? [00:15:30] Speaker 03: You did, didn't you? [00:15:32] Speaker 03: Isn't there some objection in the record? [00:15:34] Speaker 01: I don't think he did. [00:15:34] Speaker 01: I think he just tried to impeach him. [00:15:36] Speaker 01: Tried to impeach him? [00:15:37] Speaker 01: Tried to impeach him. [00:15:39] Speaker 01: I have to go back. [00:15:40] Speaker 02: Did Loftus say that he didn't know he could, in the declaration, that he didn't know he could? [00:15:49] Speaker 01: That was for Gonzalez. [00:15:50] Speaker 01: For Gonzalez, OK. [00:15:51] Speaker 01: Yes, he didn't know. [00:15:53] Speaker 01: my bad, you know, kind of. [00:15:55] Speaker 01: But it was for Gonzales, not Cano. [00:15:57] Speaker 01: No, Cano, I think he just tried, because the coercion was more, you know. [00:16:03] Speaker 03: Well, how could you have been successful? [00:16:06] Speaker 03: How could a lawyer have been successful? [00:16:08] Speaker 03: And it would be sort of like, OK, let's do the hypothetical. [00:16:11] Speaker 03: I'm a prosecutor, and I'm going to call some witnesses that are damaging to your client. [00:16:18] Speaker 03: And you say, Your Honor, I object to letting that person testify. [00:16:22] Speaker 03: Well, that's not a basis for keeping evidence out. [00:16:27] Speaker 03: You can cross-examine, you can diminish the evidence, but if there's no legal basis for keeping it out, so what is your legal basis right here and now for keeping that evidence out? [00:16:40] Speaker 01: So that exactly makes my point. [00:16:43] Speaker 03: Well, I don't think I think it made your point. [00:16:47] Speaker 01: But maybe help me on that. [00:16:49] Speaker 01: So our basis now is IAC, because we're in 2254. [00:16:56] Speaker 01: But at the trial level, what we've argued in this habeas proceeding is he could have [00:17:04] Speaker 01: You know and he could have hired an audio expert we did and our audio expert You know using the technology he he was able to hear stuff and he was able actually to to hear [00:17:19] Speaker 01: Cannell make inculcatory statements about himself that Rachel Burr had attributed to the two heroes. [00:17:28] Speaker 01: Okay. [00:17:29] Speaker 03: Well, you're already two and a half minutes over. [00:17:31] Speaker 03: Okay. [00:17:31] Speaker 03: Unless my colleagues have questions right now, I'm going to cut you off here. [00:17:36] Speaker 03: Okay. [00:17:36] Speaker 03: I will give you two minutes for rebuttal so we can listen to what your friend on the other side has to say. [00:17:42] Speaker 03: Thank you. [00:17:42] Speaker 03: So you'll have an opportunity to respond. [00:17:44] Speaker 00: All right. [00:17:45] Speaker 03: Thank you. [00:17:54] Speaker 04: Good morning. [00:17:55] Speaker 04: Good morning, Your Honors. [00:17:56] Speaker 04: Deputy Attorney General Susan Kim for Respondent. [00:18:00] Speaker 04: I want to begin by responding to some of the issues that were raised by Your Honor's questions to current counsel for petitioner. [00:18:07] Speaker 04: And the first thing I want to do is kind of give the background of the audio recording issue regarding his claim of ineffective assistance of trial counsel, Mr. Loftus. [00:18:15] Speaker 03: So the declaration- Well, maybe in part of that you will then address why [00:18:22] Speaker 03: it was not ineffective assistance to not review all of the audio. [00:18:27] Speaker 03: I will. [00:18:28] Speaker 04: So I do want to just summarize a little bit of the factual background just for clarity. [00:18:32] Speaker 04: So Mr. Loftus in his declaration, which was attached as an exhibit to the state habeas courts as well as the federal habeas courts, declared in part that he and a Spanish translator [00:18:44] Speaker 04: you know, began to listen to this audio tape that he received from the DA's office, but they, you know, he felt that it was really difficult to understand and unintelligible. [00:18:53] Speaker 04: So he, his tactical decision was, we're not going to be able to really decipher this. [00:18:59] Speaker 04: So he didn't hire a [00:19:00] Speaker 04: forensic audio expert, and that's what he declared. [00:19:03] Speaker 04: Now, current counsel, Mr. Ellis, in his habeas petitions, he attaches two declarations that are relevant to this issue. [00:19:11] Speaker 04: The first declaration is by Mr. Kent Gibson, who is a forensic audio expert, and he lists his qualifications. [00:19:18] Speaker 04: And Mr. Gibson, and again, these declarations were all before the state courts as well as the federal court on habeas. [00:19:24] Speaker 04: Mr. Gibson declares in relevant part that he used his audio enhancing equipment [00:19:30] Speaker 04: And this is with regard to the CDs that they have, that Defense does have. [00:19:35] Speaker 04: And for major portions of it, he really couldn't make anything of it, even with that equipment. [00:19:40] Speaker 04: And his declaration also includes that Mr. Ellis, speaking of current counsel, asked Mr. Gibson to look for two statements, whether he could hear two statements on this audio. [00:19:50] Speaker 03: The first statement was, I— So the audio that this expert was listening to, how does that compare to the audio that was available? [00:20:00] Speaker 04: It is the same audio. [00:20:01] Speaker 04: The only difference is that Mr. Gibson, with his background and expertise, used whatever audio enhancing equipment he had to listen to what he thought he could listen to, the parts he could. [00:20:11] Speaker 03: So is it the same audio that Loftus listened to? [00:20:14] Speaker 04: that he began to try to listen to this. [00:20:17] Speaker 03: I may be confused, but I was understanding Mr. Ellis to say it wasn't the same audio. [00:20:22] Speaker 04: No one else has a different audio from what I have reviewed on the record. [00:20:27] Speaker 04: This is the same audio recording. [00:20:30] Speaker 02: Is it the same audio that Bird listened to? [00:20:32] Speaker 04: She listened to a copy, I'm not sure if it's the identical same copy, but the substance as far as the length and the approximate number of days, it should be the same audio recording. [00:20:42] Speaker 00: When you say should be, how do you know that? [00:20:44] Speaker 00: Because it sounds to me, at least from what I've read, [00:20:47] Speaker 00: possible that Burr listened to a better version of this audio? [00:20:50] Speaker 04: So I think the copy she had perhaps might have been a better, I don't know, to be honest. [00:20:55] Speaker 04: I don't know the exact copying of the audio, but as far as the substance, it appears that it should be the same substance. [00:21:01] Speaker 00: Well, of course the substance is the same. [00:21:03] Speaker 00: The question is whether you can understand what's on the tape. [00:21:05] Speaker 00: And I was under the impression that Burr listened to an audio that had better quality. [00:21:10] Speaker 00: I may be wrong, but that's progression. [00:21:12] Speaker 04: I think her testimony at trial said that she did listen to parts that were intelligible, but that a great part of it was not intelligible, and she was unable to listen to it. [00:21:20] Speaker 04: I actually listened to part of it myself. [00:21:22] Speaker 04: The part that's pertinent is day one around hour three. [00:21:25] Speaker 04: When you say you listened to it, you listened to the degraded one? [00:21:29] Speaker 04: The one that current counsel provided to me. [00:21:31] Speaker 04: So it is difficult to understand, I will have to say. [00:21:34] Speaker 04: But I do want to bring up that Mr. Gibson, [00:21:39] Speaker 04: said that the two statements at Cano testified at trial. [00:21:41] Speaker 04: He heard petitioners say to him during this jail conversation. [00:21:44] Speaker 04: The first one was, I think, quote, I smoked that fool. [00:21:47] Speaker 04: And the second was something to, quote, blasted him maybe four times, like those kind of words. [00:21:54] Speaker 04: And Mr. Gibson said when he listened to what he could of the audio, he didn't hear those two statements. [00:21:59] Speaker 04: And it's really important to note that this is exactly what Detective Rachel Burr testified to at trial. [00:22:05] Speaker 04: And so Loftus had declared in his declaration, I used Rachel Burr's testimony on crash examination to impeach Conno's more harmful statements, those two statements I just quoted. [00:22:16] Speaker 04: So even in retrospect, trial counsel Loftus did not perform efficiently because he ended up with the same result that current counsel is trying to get his own forensic expert to say. [00:22:28] Speaker 04: And the other second declaration that current counsel appears to rely on is, and he referred to it, is of Petitioner's other current defense attorney, Mr. Jeffrey Harper, who, one, is not an audio expert. [00:22:40] Speaker 04: He does not list in his declaration any expertise related to forensic audio recordings. [00:22:45] Speaker 04: He's an attorney from Florida who is assisting Petitioner in his current habeas case now. [00:22:50] Speaker 04: And he declares in a very lengthy declaration that he listened to all approximately 19 hours of this audio with just [00:22:57] Speaker 04: an unenhanced version. [00:22:59] Speaker 04: So he, again, does not have any enhanced equipment like Mr. Gibson apparently would have. [00:23:04] Speaker 04: And then he then interprets what he believes he hears on this audio. [00:23:08] Speaker 04: So the things that he says he heard, first of all, given that he's not an expert, that's questionable. [00:23:15] Speaker 04: And I do want to point to one specific example. [00:23:18] Speaker 04: And one of the questions that Your Honor has asked before was, what can current counsel point to in this audio that [00:23:25] Speaker 04: is supposedly helpful to petitioners' defense to show that he's, you know, to help his case. [00:23:32] Speaker 04: And I'm not sure because it's not specified in the briefing, but it appears I read all the declarations and the pertinent Harper declaration, Attorney Harper, on [00:23:42] Speaker 04: the excerpts of record, page 622, there's a statement that Mr. Harper says, petitioners said, and it's, quote, I know it wasn't us. [00:23:51] Speaker 04: But at the same time, that same statement, I know it wasn't us, Rosario Gonzalez, who was a district attorney investigative assistant, she reviewed the first three and a half hours of this audio tape. [00:24:03] Speaker 04: and she transcribed portions of it that were relevant to this case. [00:24:07] Speaker 04: And that same statement, I know it wasn't us, she attributed that to Mr. Cano. [00:24:12] Speaker 04: So even that statement, if Petitioner is currently relying on that as some type of expropriatory evidence, it's questionable whether who said that. [00:24:21] Speaker 04: So that is something to note. [00:24:23] Speaker 04: And just in general, as far as all these claims have been effective at system counsel, as Your Honor did bring up, it's important to note that appellant was [00:24:32] Speaker 04: At trial, the prosecution had two theories of the murder as a direct liability theory of the being the actual shooter of the victim, as well as an aider and a better. [00:24:41] Speaker 04: So even apart from the Kano audio tape, all this evidence surrounding this particular area, [00:24:48] Speaker 04: Even apart from that, he cannot show strictness and prejudice because there is abundance of other evidence to support his guilt. [00:24:56] Speaker 02: So what about the cumulative theory? [00:25:02] Speaker 02: There seems to be these little things. [00:25:05] Speaker 02: For example, the prosecutor argued at the trial that Kidos stated he shot him four times, and that's something that [00:25:17] Speaker 02: wasn't out in the public yet or the newspapers, it wasn't available by the newspapers in the newspapers. [00:25:24] Speaker 02: But later on, I guess petitioner argues. [00:25:28] Speaker 02: that it was available in newspapers and all Loftus had to do was do a search to find these newspapers and that would have rebutted the prosecution's, you know, reliance on this theory that it wasn't available to the public and that Guido's only knew things because he must have been there. [00:25:47] Speaker 02: So that would cover the aiding and the vetting and would also cover, would assist them in their defense. [00:25:55] Speaker 04: Just to respond to that newspaper issue, [00:25:57] Speaker 04: Um, the declaration by Loftus, he specifically addresses in newspapers and says that he made that tactical decision, you know, to you, because Rachel were testified at trial, many things, but she did refer to petition or referring to newspaper articles during that jailhouse conversation. [00:26:16] Speaker 04: and trial counsel Loftus also said at trial in his closing, these newspapers, who knows what they said, but that's not my burden to show. [00:26:25] Speaker 04: That's a prosecution's burden. [00:26:26] Speaker 04: So that's clearly a tactical decision he made to say, OK, if he even said something like, well, if anyone could read the newspaper, then anyone could have committed this. [00:26:37] Speaker 04: So he used the, he didn't specify what was in, [00:26:41] Speaker 04: these newspaper articles, but he argued about them by saying, OK, Detective Byrd testified about them, and if it's out there, then it's out there. [00:26:52] Speaker 04: So it's not something he let go. [00:26:53] Speaker 04: It wasn't something he decided to ignore, but he was aware that they were out there, and he decided to use it to his advantage for his defense at trial. [00:27:04] Speaker 02: I thought it was the opposite, that the prosecution was arguing that Kidos had made statements [00:27:11] Speaker 02: that were not in the newspapers, that were not in the public. [00:27:14] Speaker 02: Yes, that is correct. [00:27:15] Speaker 02: And so Loftus could have very easily done some research and brought in those newspapers that now, I guess, the current council has found and said, look, it was out there that he was shot four times, that he was, you know, whatever other information. [00:27:30] Speaker 02: And doesn't that just fall to the [00:27:34] Speaker 02: below the Strickland standard in and of itself? [00:27:38] Speaker 04: Well, I think in this case, it had over 70-plus exhibits. [00:27:42] Speaker 04: And I think with the limited resources that trial counsel Loftus had at the time of trial, he made tactical decisions. [00:27:48] Speaker 04: And many of them were quite reasonable. [00:27:50] Speaker 04: And perhaps this tactical decision not to pursue the newspaper article path was something he thought was less important than other more important tactical decisions, like using whatever testimony that Detective Burr would have provided [00:28:03] Speaker 04: so that he could undermine Conno's more harmful statements about direct being the direct shooter. [00:28:09] Speaker 04: So I think looking at the many decisions that were made by trial counsel, I don't believe that he performed efficiently under the Strickland standard, including the newspaper, including the audio tape, including the many other issues. [00:28:23] Speaker 03: Obviously, when you're convicted, no one's ever happy, you know, things that tactical decisions you made, you hopefully wouldn't make them the same again. [00:28:32] Speaker 03: But I think Judge Fletcher, was he convicted of being the shooter? [00:28:40] Speaker 04: Well, he was convicted of first degree murder of the victim. [00:28:43] Speaker 04: Yes. [00:28:44] Speaker 04: But it's not specified. [00:28:45] Speaker 04: And one thing I do want to clarify, based on my review of the record, I believe that as far as the personal firearm enhancement, it was 11 to 1, but I don't believe the record states which way the jury voted, whether it was true or not true. [00:28:58] Speaker 04: So I don't well is that but he wasn't convicted of that. [00:29:02] Speaker 04: He wasn't he was found It was found not true, but the record indicates the numbers were 11 to 1 but it doesn't say Either way, I believe mr. Ellis is Suggesting that it was that they found him Not guilty of having the you know, like either way. [00:29:19] Speaker 03: It's not clear from the record well, I guess from the standpoint that I [00:29:26] Speaker 03: That would go to how was he prejudiced if he wasn't convicted of being the shooter. [00:29:32] Speaker 03: I mean he was convicted of first-degree murder and the prosecution argued two different theories and we don't know and I don't think we're required to know which one was the one that carried the day. [00:29:46] Speaker 03: But had he been convicted of the firearm enhancement [00:29:51] Speaker 03: that would have said that the jury said he was the shooter. [00:29:55] Speaker 03: So would he be able to show more prejudice by not looking at those articles if he had been convicted of being the shooter? [00:30:04] Speaker 04: I think the articles and the other evidence that Petitioner is currently alleging as a basis for his claims of ineffective assistance [00:30:13] Speaker 04: You have to look at, I do want to address a strict and prejudice prong, and I do want to summarize some of the other evidence apart from the ones that he's complaining of. [00:30:22] Speaker 04: So first of all, Kano isn't the only person that Petitioner told that he shot the victim. [00:30:28] Speaker 04: Nikki Woods, who was also in jail at the same time as Petitioner at some other date, they were both in a cell where, my understanding is, through toilets there's vents where you can hear each other. [00:30:39] Speaker 04: And Nikki Woods and Petitioner knew each other in the same social circles. [00:30:45] Speaker 04: Many of their friends sold drugs, used drugs. [00:30:48] Speaker 04: And Petitioner asked her, you know, is Shiloh, I guess another one of their mutual acquaintances, is she mad at me? [00:30:57] Speaker 04: Nikki Woods said, why? [00:30:59] Speaker 04: And then petitioner replied, because I, quote, blasted Brian. [00:31:02] Speaker 04: Brian is a victim's first name, Brian Sosek. [00:31:04] Speaker 04: So there is another time where he admitted to someone else that he shot the victim. [00:31:08] Speaker 04: And in addition to that, you have to look at the, and I know my time is up, but if I may just quickly sum up. [00:31:14] Speaker 03: Well, you're not, it's not up. [00:31:15] Speaker 03: You still have some time. [00:31:16] Speaker 03: Oh, OK. [00:31:16] Speaker 03: There's a little warning light. [00:31:17] Speaker 03: Yeah, I'll give you a little extra, because I already gave him an extra. [00:31:21] Speaker 03: Oh, thank you. [00:31:22] Speaker 04: So looking at his behavior, petitioner's behavior before the shooting and after the shooting, [00:31:27] Speaker 04: It's important to note that petitioner borrowed this Pontiac car from Mr. Navarrete the night before the shooting. [00:31:36] Speaker 04: He and Ruben Gonzalez went to the resident, or went to pick up the victim, Brian Sosek. [00:31:42] Speaker 04: then they drove around and I think Mr. Espinosa joined them at some point in the car. [00:31:47] Speaker 04: And this is in large part also based on Gonzales' interview statements. [00:31:52] Speaker 03: Well, there's some passenger that's in the car when the shooting occurs and the car has some damage and the car was cleaned up, right? [00:32:00] Speaker 04: Yes, but Petitioner was very active and after the shooting he brought the car back to Mr. Navarad, said that he would help him repair it. [00:32:06] Speaker 04: The car at that point had broken glass. [00:32:09] Speaker 04: Petitioner actually got a vacuum and tried to clean up the glass at another property location. [00:32:13] Speaker 04: And subsequently, after petitioner was arrested, he actually called that person. [00:32:18] Speaker 04: His name is Gary Klein Smith. [00:32:19] Speaker 04: Her name was Leanne. [00:32:20] Speaker 04: He thought he called Leanne and said, oh, tell Gary to get rid of that stuff. [00:32:25] Speaker 03: Wasn't there something lay low? [00:32:26] Speaker 04: Yes, he also warned him to lay low with Mr. Nav Red. [00:32:30] Speaker 04: He told Mr. Gonzalez, don't say anything after the shooting. [00:32:34] Speaker 04: And you have to understand the context of why would Petitioner want to kill Brian Sosek? [00:32:39] Speaker 04: They were childhood friends. [00:32:40] Speaker 04: And it all goes back to the fact that Mr. Sosek was an informant and he worked with law enforcement to have other drug, people who were selling drugs and have them arrested, one of them being Hector Flores. [00:32:52] Speaker 03: Does the jury know this? [00:32:53] Speaker 04: Yes, the jury is aware of this. [00:32:54] Speaker 03: That was that Mr. Sosek was an informant. [00:32:57] Speaker 04: Yes, and that goes to why this all happened because if, and also, [00:33:03] Speaker 04: So there was a conversation, a phone conversation between Petitioner and Hector Flores, who was one of the people who were selling drugs who was impacted by Sosec's involvement with law enforcement. [00:33:15] Speaker 04: And Hector Flores told Petitioner, I think your guy, meaning the victim, you know, he's working with the police or is undercover. [00:33:22] Speaker 04: And they had a conversation to the effect of, are we on? [00:33:26] Speaker 04: Like, basically, take care of this. [00:33:28] Speaker 04: And then when Petitioner was back out of, I think, jail or something, he actually called his high school friend, who was also a childhood friend of the victim, his name is Chris Ellis. [00:33:39] Speaker 04: And he called Chris Ellis and said, hey, where's Brian? [00:33:41] Speaker 04: You know, have you seen Brian? [00:33:42] Speaker 04: And Chris Ellis said, oh, I haven't seen him. [00:33:44] Speaker 04: I don't know what's going on. [00:33:45] Speaker 04: So he started actively looking for the victim. [00:33:48] Speaker 04: He got this car, borrowed from this other man, drove the victim around. [00:33:52] Speaker 04: And most importantly, there's gas station evidence in Santa Barbara, which there were a group of four people. [00:33:59] Speaker 04: Their names were Christopher Grabeel, Misty Aguilera, and Tanya Velasco, and a third man, Andrew Castor, who actually didn't provide any information. [00:34:07] Speaker 04: But at this gas station, these four people were in Santa Barbara, roughly, the shooting happened on August 26, around 4 a.m. [00:34:18] Speaker 04: in Oxnard, on August 27, excuse me, in the early morning hours. [00:34:23] Speaker 04: On August 27, like in the very early morning hours, these four at the gas station met [00:34:29] Speaker 04: a petitioner, Brian Sosek, and two other men, including Gonzalez. [00:34:34] Speaker 02: But one of them testified that, first of all, one of them was intoxicated, or they were all intoxicated. [00:34:40] Speaker 02: And then one of them said, I don't recognize him, or withdrew his identification. [00:34:46] Speaker 02: And then the other three never IDed petitioner. [00:34:49] Speaker 04: So just to clarify, so yes, Christopher Grabeel and Andrew Castor did admit they were drinking that night. [00:34:54] Speaker 04: And they did admit some level of intoxication. [00:34:56] Speaker 04: That was presented to the jury for their credibility to be determined. [00:35:00] Speaker 04: And Andrew Castor did not identify anybody that he's one of the four that did not provide any information. [00:35:05] Speaker 04: But Christopher Grubiel did later when he spoke to DA investigator, Mr. Coughlin, picked a photo of a petitioner and said, oh, I spoke to this person at the gas station that early morning. [00:35:19] Speaker 04: because he asked me for directions to a casino. [00:35:23] Speaker 04: And then he specifically, yes, he admitted his intoxication, but he also did make that identification. [00:35:28] Speaker 04: So there is an identification of petitioner at that location at that time. [00:35:33] Speaker 04: The other two women, first, Missy Aguilera. [00:35:36] Speaker 04: She was drinking not as much as the other two men, but she also admitted that she was out, because they were out there going to bars and were driving around other parts before that. [00:35:44] Speaker 04: Ms. [00:35:45] Speaker 04: Aguilera said that she was at the gas station in their car, and she, when shown a picture of the victim, said, oh, this man was in that other car, referring to the car, the Pontiac. [00:35:56] Speaker 04: So she identified the victim at that gas station location at that time. [00:36:00] Speaker 04: And as far as identification, I believe her words to the police officer were, it kind of looks like him. [00:36:08] Speaker 04: So it wasn't, as Your Honor said, like the clearest of identifications. [00:36:11] Speaker 04: But she didn't say, oh, no, I'm talking about Petitioner, excuse me, not Brian Sosek. [00:36:15] Speaker 04: But when she was shown a picture of Petitioner, she said, it kind of looks like him. [00:36:19] Speaker 04: So there was that. [00:36:21] Speaker 04: And then the other person, Tanya Velasco, and this is very important, Tanya Velasco was not drinking because she was their designated driver of the four people in their own car. [00:36:29] Speaker 04: She said she was in the car and she, you know, when one of the men, Mr. Grabeel, came and said, oh, these guys want some directions to the casino. [00:36:36] Speaker 04: Ms. [00:36:36] Speaker 04: Velasco took her gas station receipt, a piece of paper, wrote the casino directions on it, and then gave it to that group of men. [00:36:42] Speaker 04: And then, you know, she said when asked by the police officer and shown all these pictures, Ms. [00:36:47] Speaker 04: Velasco said, of a pellet, he looks very familiar. [00:36:51] Speaker 04: So there's that. [00:36:52] Speaker 03: But most importantly- Okay, we're quite a bit over. [00:36:55] Speaker 04: May I just add one final sentence, please? [00:36:58] Speaker 04: The gas station receipt was found at the body of the victim in the alley. [00:37:03] Speaker 03: So for all these reasons. [00:37:04] Speaker 03: I'm assuming that your rather extensive review of the record goes to the evidence that was before the jury and to prejudice. [00:37:13] Speaker 03: Is that correct? [00:37:14] Speaker 04: Yes, that is correct, Your Honor. [00:37:15] Speaker 03: All right. [00:37:15] Speaker 03: Thank you. [00:37:16] Speaker 03: Thank you very much, Your Honor. [00:37:21] Speaker 03: I'm sorry, if either of my colleagues have additional questions. [00:37:26] Speaker 03: So with your two minutes I'm giving you now, I've tried to be fair to both of my children here. [00:37:32] Speaker 03: So I think I've evened it up. [00:37:33] Speaker 03: We appreciate it. [00:37:36] Speaker 01: So first of all, when there's a guilty plea, and you're after the fact looking back and picking out little pieces of evidence that would be consistent with that, [00:37:50] Speaker 03: That's, in my opinion, is not- When you say where there's a guilty plea, do you mean a guilty verdict? [00:37:55] Speaker 01: I meant verdict, I'm sorry. [00:37:56] Speaker 01: Okay, thanks. [00:37:57] Speaker 01: When you go back and look, they're all going to be, that's the whole thing about evidence not getting in, exculpatory evidence. [00:38:05] Speaker 01: It's always inconsistent with, after there's been a conviction, with what you have. [00:38:10] Speaker 01: All those circumstantial things, I mean the talking through the toilet, once we got into habeas, the AG kind of abandoned that witness because she was not very incredible. [00:38:22] Speaker 01: So, you know, yes, they can go through and pick these things consistent with the verdict, but that doesn't mean that if we got relief on habeas, there wouldn't be prejudice because, and this is the last thing I want to say, prosecution, Kano is our main witness. [00:38:40] Speaker 01: That's what he said. [00:38:42] Speaker 01: Unique corroboration, Rachel Burr. [00:38:45] Speaker 01: So if you take, and the reason he's their main witness is because he's going to say Raul, that Kiros confessed. [00:38:53] Speaker 01: Rachel Burr is going to loft his hopes that he would be able to undermine Kano by her testimony. [00:39:01] Speaker 01: He wasn't able to. [00:39:03] Speaker 01: So now we have their primary witness, and we have their corroborative witness. [00:39:10] Speaker 01: And we have an attorney who has no idea what's on that tape. [00:39:15] Speaker 01: And you're right that what Rachel Burr was listening to, it's not clear. [00:39:20] Speaker 01: But to me, it seemed like she was given something by her husband. [00:39:26] Speaker 01: And there was ancillary statements on habeas that different people had their own recorders while this was going on. [00:39:37] Speaker 01: So how can that, we're saying, how can it not be when you have a recording [00:39:43] Speaker 01: that this witness is testifying about, how can the jury not be given that? [00:39:49] Speaker 01: And how can there not be a transcript? [00:39:52] Speaker 01: There's something wrong. [00:39:53] Speaker 01: And just because there was this other evidence about after the fact, that doesn't undermine that. [00:39:59] Speaker 01: It's just below the standard for him not to have brought it up to the court, brought a motion to keep it out or obtained. [00:40:08] Speaker 01: done something, maybe back then there would have been, nobody ever saw on the defense the actual master recording. [00:40:15] Speaker 01: And Ken Gibson said, the one we have was a copy, may have been a copy of a copy, he said. [00:40:20] Speaker 01: And the other issues we've raised, we're still adhering. [00:40:25] Speaker 01: We're submitting them on the briefing, including the newspaper article. [00:40:30] Speaker 03: We're not ignoring any of those. [00:40:32] Speaker 01: Thank you very much. [00:40:33] Speaker 03: Thank you both for your arguments. [00:40:35] Speaker 03: In this matter, it will stand submitted.