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Prosecutors use of inconsistent theories about identity of a shooter did not violate due process

People v. Ramirez (Cal., Aug. 25, 2022, No. S099844) 2022 WL 3653756, at *1

Ramirez was convicted of a variety of crimes including murder and sentenced to death.

Motion To Disqualify the Prosecutor’s Office at Trial

Ramirez moved to disqualify the Kern County District Attorney’s Office on two grounds because the prosecutors had adopted inconsistent theories about who was the shooter in the murder of Ibarra.

Under section 1424, subdivision (a)(1), a motion to disqualify the district attorney “may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” The superior court’s factual findings are reviewed for substantial evidence.

Here, the  allegation of inconsistent theories did not establish a conflict of interests sufficient to warrant recusal of the district attorney’s office. The prosecutor relied on legal authority to urge that he could argue Ramirez shot Ibarra so long as the evidence was subject to different interpretations. The argument did not demonstrate a lack of integrity or impartiality warranting recusal.

Prosecutor’s Inconsistent Theories Regarding the Shooter of Javier Ibarra

The prosecutor introduced evidence of Ramirez’  involvement in the uncharged murder of Javier Ibarra as a circumstance in aggravation. The evidence showed that Ramirez, his brother Cipriano, and Gabriel Flores confronted Ibarra and that one of the three fatally shot him. The prosecutor argued, based on inferences from the evidence, that Ramirez was the shooter.

Before Ramirez’s trial, Flores and Cipriano were each separately tried for Ibarra’s murder. During those trials, the Kern County District Attorney’s office took the position that Flores was the shooter. Flores and Cipriano were each convicted of murder.

Citing In re Sakarias (2005) 35 Cal.4th 140, 25 Cal.Rptr.3d 265, 106 P.3d 931 (Sakarias), Ramirez argued that the prosecution’s use of inconsistent theories about the shooter’s identity violated due process under the United States Constitution. The California Supreme Court found no error because the evidence was ambiguous as to the shooter’s identity. There  was no evidence before the Court  that the prosecutor deliberately manipulated the trial evidence to present a false picture of Ramirez’s guilt. The fact that the prosecution had interpreted the evidence differently in separate trials was not information that Ramirez was entitled to present in his case.

Before the penalty phase, the prosecutor filed a motion to admit evidence of Ramirez’s  involvement in the 1995 murder of Javier Ibarra as a circumstance in aggravation.The prosecutor had argued during defendant’s pretrial recusal motion that he should be allowed to prove Ramirez’s guilt of Ibarra’s murder on any theory supported by the evidence, including direct perpetrator, aider and abettor, or coconspirator. The trial court ruled the People could introduce evidence of Ramirez’s involvement in the Ibarra murder as a circumstance in aggravation under theories of  aider and abettor or principal. It denied defendant’s request to introduce evidence that the prosecution had presented inconsistent theories in the Flores and Cipriano trials.

The prosecutor in Cipriano’s trial conceded Cipriano was not the shooter, arguing he was liable for murder as either a coconspirator or aider and abettor.

 Law does not require consistency in results between different criminal defendants

The prosecutor has broad discretion to prosecute a defendant for a particular crime so long as there is probable cause to believe that the defendant is guilty and the prosecution is not motivated by vindictiveness or invidious discrimination. (People v. Lucas (1995) 12 Cal.4th 415.) As a general matter, the law does not require consistency in results between different criminal defendants in different prosecutions. (Standefer v. United States (1980) 447 U.S. 10, 12–13,; People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 8–22.)

Manipulation of evidence in bad faith in pursuing inconsistent theories

In Sakarias, supra, 35 Cal.4th 140, 25, a habeas proceeding, the Supreme Court

found a due process violation where the prosecutor adopted inconsistent and irreconcilable factual theories in separate trials and manipulated the available evidence to the detriment of each defendant.

The referee presiding over the evidentiary hearing made several factual findings which were supported by substantial evidence. The referee found that the prosecutor’s use of divergent factual theories “ ‘was an intentional strategic decision designed to fit the evidence [the prosecutor] presented at the successive trials, to meet the proffered defense theories, and to maximize the portrayal of each defendant’s culpability.’ ” (Id. at p. 150.)

The prosecutor’s deliberate and “bad faith” manipulation of the evidence to obtain a death judgement against each defendant violated due process. (Sakarias, supra, 35 Cal.4th at pp. 160, 162.) “[F]undamental fairness does not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. By doing so, the state necessarily urges conviction or an increase in culpability in one of the cases on a false factual basis, a result inconsistent with the goal of the criminal trial as a search for truth. At least where, as in Sakarias’s case, the change in theories between the two trials is achieved partly through deliberate manipulation of the evidence put before the jury, the use of such inconsistent and irreconcilable theories impermissibly undermines the reliability of the convictions or sentences thereby obtained.” (Id. at pp. 155–156.)

The “manipulation of the evidence for the purpose of pursuing inconsistent theories establishe[d] the prosecutor’s bad faith.” (Sakarias, supra, 35 Cal.4th at p. 162, 25 Cal.Rptr.3d 265, 106 P.3d 931.)

Sakarias clarified that the prosecutor’s good or bad faith, his manipulation of evidence, his discovery of significant new evidence, and the truth or falsity of the prosecutor’s theory, all play a role in assessing whether a due process violation occurred.

Ramirez may develop a record of bad faith by the prosecutor in a habeas proceeding

Ramirez may develop  evidence bearing on these bad faith in support of a petition for writ of habeas corpus. (People v. Sakarias (2000) 22 Cal.4th 59)

Concurring opinion questions prosecutions use of inconsistent theories

In the penalty phase of Ramirez’s trial, the prosecutor introduced evidence that Ramirez was involved in the murder of Ibarra, with which he had not been charged.  Ramirez’s brother Cipriano and another co-perpetrator, Flores, had been charged with and convicted of the Ibarra murder in two separate trials, each of which concluded before Ramirez’s trial began

Three years later, during the closing arguments in the penalty phase of this case, the prosecution offered a different theory of who shot Ibarra. In urging the jury to sentence Ramirez to death, the prosecutor argued: “[T]he evidence points strongly to the fact that [Ramirez] was the shooter” of Ibarra. The prosecutor urged the jury to “give extreme weight” to this fact.

On this is a direct appeal the Court does not have  factual findings about the prosecutor’s knowledge, belief, and intent in deciding to argue for the first time at the penalty phase in this case that Ramirez, not Flores, shot Ibarra.The Court  rdoes not know why the prosecution changed its theory. Ramirez is free to pursue a writ of habeas corpus to try to demonstrate the prosecutor acted in bad faith to Ramirez’s prejudice.

But it does not fully answer the question why, in the space of less than three years, this same District Attorney’s office went from arguing that Ramirez’s co-perpetrators’ contentions that Ramirez shot Ibarra were unsupported and self-serving to arguing that the evidence showed Ramirez was the shooter. As we observed in Sakarias II, “A criminal prosecutor’s function ‘is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial.’ ” (Sakarias II, supra, 35 Cal.4th at p. 159.) When the government, through its prosecutors, takes “a formal position inconsistent with the guilt or culpability of at least one convicted defendant” it “cast[s] doubt on the factual basis for the conviction.” (Id. at p. 158.) Unless the prosecution has a good faith basis for its change in theories, we risk “ ‘reduc[ing] criminal trials to mere gamesmanship and rob[bing] them of their supposed purpose of a search for truth.’ ” (Id. at p. 159; cf. Rules Prof. Conduct, rule 3.3(a) [attorneys have duty of candor toward tribunal]; id. rule 3.8, com. [1] [“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate”].)

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