it please the court my name is stephanie attractive and i represent the petitioner brian sanchez sanchez his trial lawyer told his jury a lie that an alibi witness sanchez's father fidel did not tell the lawyer about his alibi testimony until the beginning of trial which was about five years after the charge murder because the california court of appeal held that counsel's conduct was professionally and reasonable the issue in this case is whether sanchez was prejudiced by the lawyers false statement and by its lawyers failure to move to sever sanchez's case from that of a codefendant with a conflicting defense presenting false evidence against a client on trial for murder is extraordinary but in this case counsel's conduct was particularly damaging because the false evidence was presented to the jury as a stipulation ordinarily jurors are permitted to draw their own conclusions about a witness is credibility because the false stipulation of the case was finding the jury was required to accept counsel's law is true and to discredit fidel sanchez's testimony even if they had believed him the prejudice from the false stipulation was not limited to fidel sanchez's testimony because it undermines the credibility of defense counsel's entire presentation after defense counsel stipulated that his own witness had not told the truth when he testified the jury could not have given fair consideration to any other defense evidence or even defense counsel's arguments and some asian trial counsel personally read the false stipulation to the jury and had it admitted as a defense exhibit right and counsel so tenser time is just ticking that it seems to me both of these challenges in both ways that you've mentioned the conduct was grossly below that the and the california supreme court agreed it fell a below an objective a reasonable standard to figure out prejudice which is really the hang up here on because it seems like we have to reimagine this trial completely and it's a bit of a exercise to do that because first all of it would have been severed right so his girlfriend slash wife wouldn't have been there and that was absolutely devastating that she didn't join in the alibi defense she had every reason to do something since she herself was a defendant was looking at jail time but she did not embrace that alibi defense which would have put her with him off seeing a movie and having dinner and right now so if we imagine if we imagine that he had moved for severance and the and the case had been severed then it seems to me the girlfriend's not slash wife we don't have that problem he wouldn't have that problem and he wouldn't have the problem with the defense counsel reading a stipulation into the record that so damaged defendants fathers testimony fathers testimony was that my son was with me basically right but but he still would have had what it seems to me still would have had is that four witnesses to testify that mr was the driver of the blue van and which i'd like you to address because now we're down to six months after the hand and the recording of the individuals in the back of the van after they've been arrested in the police car after they've been arrested it seems to me that those are that your big problems aren't the testimony of you seem pretty damning commit well your honor if one reads their testimony individually they did their stories are completely inconsistent even santos kuk and david cooke when they testified their brothers they supposedly were there the entire time together they gave different stories about what they did today that day one of them said that they were with sanchez all day just hanging out and then in the evening they decided to go commit this murder the other one said they got together with him right before they went out in the van kill you know with a rival gang member so their stories are so completely different that it's hardly devastating to mr sanchez to have them testify they admitted over and over again that they have lied repeatedly made up up some sort of story to tell the police about why they were in the band have the guns and he said i think my fingerprints are on the guns we need to tell them that somebody  witnesses who gave completely different stories every time they were asked said at trial you did i'm not trying to give you a hard time but did any of them ever waiver on who was driving the van they may have given different stories about other stuff that happened that day but what about  who killed the victim who pulled the trigger who was the shooter so so so but but mr sanchez and mr sanchez is now wife were convicted right they were convicted of second degree murder a lesser charge than mr fuentes and the jury also rejected the firearm allegation as to mr sanchez so they could not have believed that he was the shooter they rejected and they didn't need to did they they didn't need to convict him of this crime did they they convicted him as an aider and abettor people believed obviously the testimony that he was in the van as were santos and david cut the two witnesses clearly there so they're going i just said the testimony against your client at the about this theory that they went on and apparently the jury believed is that it was your client's idea and that your client to go to this crime and his girlfriend then girlfriend now why i think she was convicted there was testimony that she tried to one of the guns jammed as she tried to her fingerprints were on it she was apparently trying to help a guy because the issue before the jury was not whether mr sanchez was in the van two days later which is when he was picked up it was whether he was driving it two days earlier during the murder not whether retouched the guns not whether he was there sorry how do his fingerprints get on the gun what was well of course they were there but he thinks he sings out he explained that james felix who is a government informant had handed him and mr aguilar the guns when after they got into the bank so he told the driver to govern them two days later two days later because this van had been stolen on september fifth and obviously these gangs were sharing the van and using it as long as they could mr sanchez said that he got into the van on the eighth they were going to go to his school because there had been some sort of disturbance there and he did want to get in a fight with some other individuals at school and that james felix who was a government informant and also a shock collar for the hoover street gang at the same time an admitted drug dealer he handed him the guns that's what with east can i ask another question there were four incidents i think of this as for instance the vendome and your client's not charged there and in fact arguably was the victim almost a victim of that shooting right different guns then there's this well called the bellevue avenue incident then and this is a august twenty nine the gun is twenty nin vendome incident oh forgive me what state is this six number six forgive me the next day there's an armed robbery that your client winds up pleading guilty to do we have to the jury hear anything about the guns used in that arm robbery there was no information of the details of that incident all ok that's a no thank you and then there's the stop the vehicle stop same right stopped and that's the fourth in my series of four incidents and the same blue van and that conviction was by this jury right and it's conspiracy to go out and you said get in a fight it's not a whole lot like shoot somebody at the high school and i'm i'm paraphrasing but it's the same jury right where they were hearing about this this overarching sort of plan to expand the territory of the gang that's why they were out in incident number one with graffiti spraying graffiti that's how the first shooting happened so so it's really tough when you when you when you go back to the recording in the back of the of the police police car it seems to me this jury has heard about all four of those incidents on the plan and it really sounded from the evidence to me and i want to give you a chance to respond that mr sanchez was really these were his idea to expand the territory of the gang to make sure the gang was getting proper respect at the high school and whatnot and so then you have and and the blue van us et least incident number to bellevue and the high school the same guns that's really tough testimony to hear for the jury to hear your client say my fingerprints are on the straps we've got to blame somebody else we've got to tell in this town that what is your response to that clearly mr sanchez was worried about being pulled over in a stolen van and having handled these guns clearly that does not in any way establish that he was driving that van when the shots were fired that killed the victim because there many people involved in this all of them had their various motivations to be involved in this game conflict in fact the state's own witnesses testified that it was the cut brothers to government witnesses who actually had a conflict with the temple street gang at the location where the shooting occurred and it was them they decided that's who we're going to go over there and shoot it mr sanchez did not have a gripe with those people he didn't live there and he had not been attacked by those people as santos so if this was not mr sanchez's fight it was not a situation where he was directing this at on day four when the blue van was stolen blue van was stopped on the way to the high school was mr sanchez having then he was driving it when it was stopped on the way to the high school so just one final time if i might was there ever any wavering between the witnesses who testified about ok maybe it's two questions was there ever any wavering about the witnesses who testif that mr sanchez was driving the van on the for the bellevue avenue incident at trial they said that he was driving but they gave completely different stories on and off during the entire investigation and they gave inconsistent statements about how they ended up in the van why they went over there and what they were doing it was they did all say that he was the driver ok one more one last question on the on the day of the  is it patch who who think government when it's you who supplies the guns carries the guns out from his house they drive it out over the house to get the guns and his mother remarkably helps carry these guns out know she called to testify did she testify about what i was having she did not testify mr pitch a co said that it was his mother who gave him the guns to give to the people in the band and that was consistent testimony by the way  it up after the policeman mary hearing deciding to give evidence for the government and pleading to manslaughter he he admitted he was facing a life term and he received a  deal in exchange for his testimony as all of them did santos and david kock could have served a life in prison instead they would walk free after giving the testimony the government wanted thank you thank you  the morning honors in may it please the court deputy attorney general john of the cross on behalf of responded to snow cannot show that he is entitle t b s relief in this case because he can't show that the decision of the court of appeal denying relief was contrary to or an unreasonable application of is to follow up with kristen's analysis if you had a trial in which the government's witnesses were who they were not the most believable people and the defense was not contradicted by his lawyer but he put on the most not not the most believable defense and you had not terribly you've ha honor to the extent again petitioners challenging the credibility of these witnesses that was a determination for the jury to make and those quickness credibility determinations are entitle to near total deference the jury heard from these witnesses certainly the jury also heard everything bearing on the different view of the witnesses if they were different you really do have to reimagine the trial because these two mistakes absolutely gutted his defense in this trial and in the california supreme court really still found these rig regis errors right absolutely absolutely all right so so they have to just turn the page and start over if you have the trial let's say if he had been able to sever his trial so that doesn't have the problem with his girlfriend not embracing the alibi that he was with her and his dad testifies my son was with me without having the lawyer stand up and read a statement that really called that entirely into question then then how does that trial look at that point well first like to make the point that petitioner still in order to prejudice as far as the severance issue is concerned he has to show the motion would have been granted and he really can't show that the court of appeal found that it was at least possible it would've been granted it was within the court's discretion grant it but we have a good idea of what would happen with that severance motion given that ross here and several of the other co defendants did make severance motions which were denied by the court that's clear number one the second is the court of appeal explained was who in a different position i'm sorry you are there were a different position well that's right but largely at least ross here is motion to sever was based on the fact that her defense was she felt hurt by the defenses of the other witnesses who placed her as more of an active participant than she claims she was but regardless even if the court were even without i guess recognition of what happened to rosters severance motion the court of appeal explain that under california law to be entitled to a severance you must show more than just the existence of antagonistic defenses you must show that the conflict between these two defendants is so great and that is the only evidence that was presented against these two defendants such that there's no way they could receive a fair trial the conflict doesn't get any greater she's got her neck in the news so to speak as well right shoes on trial as a defendant and if she embraces that alibi which is that we were together somewhere else that's one thing if she says as she did she didn't testify but her lawyer said she was in the van she was basically along for the ride she was you know somebody girlfriend kind of thing how does the conflict get any more you're out of the point i would make is this is too if we imagine again the severance motions granted we take it to that trial which again is very suspect that if we target know exactly what would happen just humorous ok to pretend it fell for it and then here's what we know which argument ross years counsel would not be the closing argument that petitioner he would have been there he would have been that's absolutely right but the evidence that was presented would have been the same the evidence again that was based on the testimony of several witnesses who were in the van who testified the petitioner was the prosecutor made a very compelling argument a closing argument in regard to some of the physical and forensic evidence that supported the witness testimony as the prosecutor pointed out for the jury to hear that petitioner was found in the blue stone van that was used in the shooting with the murder weapon and with the phone use that belonged to his girlfriend's father use on the night of the question to make calls in the area of the shooting for the journey you're on was totally unbelieve and that wasn't helpful to me at all the phone wasn't even the girlfriend's phone it belonged to her dad and it was sort of within a mile or something of the shooting it really wasn't pinpointed to it in the way we see in some cases so why do i care about the phone well the phone was found in petitioner's possession here's why it matters because petitioners defense was that he and his girlfriend were elsewhere that they were farther away from the shooting  that they were at his father's restaurant if the phone made calls the night in question in the radius of where it was pinged then that demonstrates that the defense essentially falls apart that's quite a bit radius though and the record i was trying to figure out so where's the restaurant compared to where the shooting is i'm really i'm i didn't get much help in that regard from this record was the jury told about the distance between the ping and the i believe pizza i believe the jury was i happen to look it up and i notice that the restaurant was way outside of the radi of that two mile or whatever what so i didn't i just wasn't moved by that at all so suppose so the read the other evidence was the witnesses in the van and the recording correct was there anybody in the van who testified that mr any deals the other witnesses may have gotten the individual who's convicted of actually pulling the trigger first degree isn't going to disappoint us yes and mr fuentes after he was all done with his prosecution he was willing to execute a declaration in favor of mr sanchez which of saying that that that he wasn't the driver he wasn't there what should we do with that but your honor respectfully that was not part of the record here was not part of one of the appeal issues i know it was something that the court of appeal weighed the impact of the declaration but i'm not prepared to speak on fact basically that he was found again in the car even if we threw the phone out found in the van used in the shooting with the murder weapon the prosecutor are going to close and i thought very compellingly that for the jury to hear all that and yet somehow believe that petitioner was an innocent victim in all this they would have to believe he was the single unluckiest person deference the jury heard that evidence they heard all the things that made that testimony strong and even weak they still believe that it was supported by the forensic evidence and the alibi defense such as it was is incredibly weak and on implausible this idea that he was somewhere else without any physical evidence while it's of course true that the prosecution bear the burden here of proving the case if the defendant petitioner wanted to present this alibi defense and if you wanted it to be believed by the court it probably would have behoove him to provide something anything that would have corroborated what was otherwise a very implausible set accomplices in a homicide of first degree murder and could have gone to prison for the rest of their lives there is a quotation from the trial transcript in my brief where when mr santos cut was being questioned about how he was how he had come by this deal he said that the detective had told him that he wanted to help him and that you know if that unless he wanted to go to life and to spend his life in prison and deal with the detectives he was going to have to start giving them the information only what the charges were dropped it's that he was never charged was never charged the three of the the both the brothers both brothers and doormen mendez who was boss gets his girlfriend but she wasn't a i right that the brothers were members of the gang i want to yes ok we're all members of the eighteenth street gang although the couple but not a number of click what you just said they were all members but i think you want i think she wasn't they said that she wasn't a member of the gang she was the girlfriend of a gang right the witnesses said but that wasn't corroborated by any fingerprint evidence oh it wasn't ok thank you thank you very much g