Court: Superior County: Santa Clara Judge: Thomas Hastings
The opinion of the court was delivered by: Kennard, J.
On petitioner's automatic appeal in this death penalty case, we affirmed the judgment. Thereafter, petitioner filed a habeas corpus petition. We ordered an evidentiary hearing on petitioner's claim that the prosecution had failed to disclose evidence that would have supported a case in mitigation at the penalty phase that petitioner committed the two murders because of a Colombian drug cartel's death threats against him and his family. After hearing the testimony of 17 witnesses, the referee found merit to petitioner's claim. We uphold that determination by the referee, and we grant petitioner's habeas corpus petition for relief from the judgment of death.
In April 1987, a jury found petitioner Miguel Angel Bacigalupo guilty of the December 29, 1983, murders of brothers Orestes and Jose Luis Guerrero. (Pen. Code, § 187; further undesignated statutory references are to the Penal Code.) The jury also found to be true special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) committed during a robbery (former § 190.2, subd. (a)(17)(i)).*fn1 The jury returned a verdict of death. In June 1987, the trial court sentenced defendant to death. Four years later, this court affirmed the judgment in its entirety. (People v. Bacigalupo (1991) 1 Cal.4th 103.)
Thereafter, the United States Supreme Court, ruling on petitioner's certiorari petition challenging our decision, vacated our judgment and remanded the matter to our court for reconsideration (Bacigalupo v. California (1992) 506 U.S. 802) in light of the then recent decision in Stringer v. Black (1992) 503 U.S. 222. In Stringer, the high court set aside a Mississippi death judgment because the jury had considered an unconstitutionally vague aggravating factor in its penalty decision. (Id. at p. 237.) After the parties' briefing and after oral argument on whether the Stringer analysis applied in this case, we again affirmed the judgment. (People v. Bacigalupo (1993) 6 Cal.4th 457, 475.) We concluded that because of differences between the California and the Mississippi death penalty schemes, Stringer did not apply to this California case. (Ibid.) The high court then denied the petition for certiorari. (Bacigalupo v. California (1994) 512 U.S. 1253.)
Petitioner's first habeas corpus petition, filed in May 1993, was denied by us in May 1994, based on the merits as well as untimeliness. This, his second petition, was filed in June 1999. In March 2001, we ordered the California State Department of Corrections (which has custody of prisoners sentenced to death) to show cause why petitioner was not entitled to relief from the judgment of death (our order did not pertain to either of the two murder convictions or the special circumstance findings) in light of petitioner's claim that the prosecution before trial failed to disclose evidence that at the penalty phase would have supported petitioner's claim of having killed under duress. (See § 190.3, factor (g) [allowing evidence regarding "[w]hether or not defendant acted under extreme duress or under the substantial domination of another person"].) After the parties' briefing of that question, this court in November 2003 ordered an evidentiary hearing before a referee.
Initially, because petitioner's trial occurred in Santa Clara County, we referred the matter to the presiding judge of that county's superior court for selection of a referee. Petitioner, however, sought to have all of the judges of the Santa Clara County Superior Court disqualified because Judge Joyce Allegro of that court had been the prosecutor in petitioner's capital trial. We then vacated our initial order and reassigned the matter to the Contra Costa County Superior Court's presiding judge, who proposed as referee retired Judge Richard Arnason. In March 2004, we appointed Judge Arnason as referee, directing him to supervise discovery, take evidence, and make findings on specified questions. Particularly relevant here is whether the prosecution failed to disclose information it obtained from a confidential informant (Gale Kesselman) who on September 6, 1985, testified at a pretrial ex parte hearing in this case held on the defense request to disclose the informant's identity.
At the reference proceeding, which began in 2004 and had several hearings over a three-year period, 17 witnesses were called (the proceedings comprise some 3,700 transcript pages). Based on the evidence presented, the referee in June 2009 issued his report, which is before us. The referee found that the prosecution knew from its confidential informant, Gale Kesselman, that her former boyfriend, Jose Angarita (a Colombian native, who was a major drug dealer in San Jose, California, and knew the murder victims) had made statements implicating himself in ordering the killings. The referee further found that more than a year before Kesselman's testimony at the September 1985 pretrial ex parte hearing, she had told the prosecution about a meeting between Angarita and petitioner on the night before the murders. These pieces of information from Kesselman, the referee found, were not turned over to the defense by the prosecution and would have lent support to a penalty phase case in mitigation that petitioner killed the two Guerrero brothers while under Colombian Mafia death threats against him and his family.
The Attorney General filed objections to the referee's findings, and petitioner filed a response to those objections. After reviewing those filings, the referee's report, and the record of the reference hearing, as well as the documentary evidence filed in connection with the habeas corpus petition, and the appellate record in petitioner's capital case, we conclude that the withheld evidence was both favorable and material (Brady v. Maryland (1963) 373 U.S. 83, 87) on the issue of penalty, thus entitling petitioner to relief from the judgment of death.
We summarize the evidence presented in petitioner's April 1987 capital trial that is of relevance here.
In the afternoon of December 29, 1983, petitioner, who had recently come from New York, began working in a San Jose, California, jewelry store owned by Orestes Guerrero, a Peruvian immigrant. The job had been arranged by petitioner's mother, a Peruvian native who knew Orestes through the Peruvian community in the San Francisco Bay area. Present in the jewelry store on December 29 were owner Orestes Guerrero, his brother Jose Luis Guerrero, a Peruvian immigrant named Carlos Valdiviezo, and petitioner. Later that day, petitioner ordered Valdiviezo at gunpoint to lie down. Instead, Valdiviezo ran and hid in the store's bathroom; he came out only after hearing someone leave the store through the front door. Valdiviezo then discovered the dead bodies of Orestes and Jose Luis Guerrero; both had been shot. That evening, police arrested petitioner at the Palo Alto home of his mother and stepfather, just as the stepfather was preparing to take petitioner to the airport. Found in petitioner's suitcases was jewelry taken from Orestes's store.
Petitioner waived his constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436, and agreed to talk to the arresting officers about the murders. Initially, petitioner denied any involvement in the killings, claiming he had spent the entire day alone at his mother and stepfather's house. He blamed the crimes on an acquaintance, Karlos Tijiboy, saying that Tijiboy looked "a lot like" petitioner and that Tijiboy was "connected with the Mafia."
Later, however, petitioner admitted killing the two Guerrero brothers, claiming he had been ordered to do so two weeks earlier by the Colombian Mafia under threats to kill petitioner and his family, and that it was Tijiboy who had given him the order. The tape recording of petitioner's interview with the police was introduced into evidence by the prosecution at the guilt phase of petitioner's capital trial. Tijiboy, called as a witness for the prosecution, identified petitioner, but denied ordering petitioner to kill the Guerrero brothers.
In closing arguments to the jury at the guilt phase of the trial, the prosecution made this statement: "Now Mr. Aaron [defense counsel] is going to have to find something to talk about. What will it be? Perhaps he will argue that there was a Peruvian [sic: Colombian] Mafia that ordered the defendant to rob and kill Jose Luis and Orestes Guerrero. But there is absolutely no evidence of that." The prosecutor added: "The evidence is very clear . . . defendant didn't receive any instructions from anyone about robbing and killing the Guerreros. Only his greed sent him there." The prosecution reiterated that point at the close of the penalty phase of the trial, when it told the jury the defense had offered no mitigating evidence that petitioner had "acted under extreme duress or under the substantial domination of another person." (§ 190.3, factor (g).) The prosecutor stressed at the penalty phase: "The defendant acted alone. In spite of the fact that he tried to blame others for his conduct, there is no evidence of that. The only duress was his greed. The only domination was his total indifference to human life."
III. Facts Leading to the 2004 Posttrial Evidentiary Hearing A. Pretrial (September 1985) Ex Parte Hearing
In August 1985, while petitioner was still awaiting trial for the two murders, his counsel asked the trial court to order the prosecution to disclose the name and whereabouts of a confidential informant who was known to the prosecution and who, according to the defense, was a material witness on the issue of petitioner's guilt of the killings. Attached to the written request was a "Supplementary Offense Report" prepared on May 4, 1984, by San Jose Police Department Sergeant John Kracht and obtained by the defense through discovery. The report stated that Kracht was at a meeting held on April 18, 1984, at the Santa Clara County District Attorney's Office, where prosecution investigators Sandra Williams and Ron McCurdy "provided a confidential informant for purpose of an interview," which was tape-recorded.
Sergeant Kracht's May 1984 report stated: "The informant, relaying statements Jose Angarita made after the murders, suggested that revenge and not robbery was the motive and that the incident that was revenged happened some years ago." The report also mentioned that in April 1984 Sergeant Kracht had interviewed Attorney Joseph DiLeonardo, who once represented Angarita. The police contacted DiLeonardo, Kracht's report explained, "because of statements attributed to him describing the murders of the Guerrero brothers as a contract killing." At the interview, which was tape-recorded, DiLeonardo denied describing the murders as contract killings. According to DiLeonardo, the mention of contract killings came from Santa Clara Police Department Sergeant Tom Hensley, who was preparing a case against one Ronnie Nance, who was then in the Santa Clara County Jail charged with the attempted armed robbery of a drug trafficker.
In opposing the August 1985 defense motion for disclosure of the confidential informant's identity, the prosecution asserted its evidentiary privilege not to reveal that identity, arguing that here the public interest in nondisclosure outweighed the necessity for disclosure. (Evid. Code, § 1041, subd. (a)(2).) A hearing on that issue (Evid. Code, § 1042, subd. (d)) was then held on September 6, 1985, in the chambers of Santa Clara County Superior Court Judge Read Ambler. At that hearing, at which the defense was not present, the judge heard the testimony of two witnesses: Sandra Williams and the confidential informant (Gale Kesselman). Judge Ambler also listened to the April 1984 tape recording of the police interview of the confidential informant. (The contents of this tape recording are described on pp. 11-12, post.)
On September 24, 1985, Judge Ambler denied the defense motion for disclosure of the confidential informant's identity, issuing this order: "The Court has conducted an in camera hearing pursuant to Evidence Code Section 1042(d), the People having claimed the privilege set forth in Evidence Code Section 1041 [protecting the identity of a confidential informant]. Based on the evidence presented, including the tape recording in question, the Court concludes that the informant is not a material witness on the issue of guilt and that there is no reasonable possibility that non-disclosure of the identity of the informant might deprive the defendant of a fair trial. The Court further finds that revealing any portion of the tape would tend to disclose the identity of the informant." The order further stated: "The transcript of all proceedings held in camera, and the tape introduced into evidence, are ordered sealed, and only a court may have access to same."*fn2 Thereafter, the prosecution never disclosed to the defense the identity of the confidential informant.
Petitioner later raised issues pertaining to the confidential informant in his second habeas corpus petition, which is now before us.
B. Second Petition for Writ of Habeas Corpus
Pertinent here is claim G raised in petitioner's second habeas corpus petition and later presented at the evidentiary hearing we ordered on this issue. Claim G asserts that the prosecution withheld evidence that would have lent support to a case in mitigation at the penalty phase of petitioner's capital trial that petitioner killed the victims because of Colombian Mafia death threats against him and his family. Central to this claim is the testimony presented at the pretrial September 1985 ex parte hearing pertaining to the defense request for disclosure of the identity of the confidential informant.
1. Testimony at the September 1985 ex parte hearing
At the September 1985 ex parte pretrial hearing in the chambers of Judge Read Ambler, the prosecution called two witnesses: Sandra Williams, an investigator for the Santa Clara County District Attorney's Office, and Gale Kesselman, the confidential informant, each of whom testified out of the presence of the other witness.
Williams testified that while investigating petitioner's murder case, she learned about confidential informant Kesselman through Ronnie Nance, who was then in the Santa Clara County Jail awaiting trial on charges of attempted murder and robbery. Nance said that Kesselman told him that her former boyfriend, Jose Angarita (a Colombian native and a major drug dealer in San Jose, California), had information about the two murders with which petitioner had been charged. Williams was able to find both Kesselman and Angarita, and she talked to them separately. Kesselman denied telling Nance that Angarita had any involvement in the killings of the two Guerrero brothers. Kesselman told investigator Williams that Angarita "was moving a lot of cocaine through Colombia into Florida," and ultimately California, and that he knew murder victim Orestes Guerrero who had rented a small space in the back of Angarita's jewelry store in San Jose.
Williams further testified at the September 1985 pretrial hearing that Kesselman had given federal agents information that led to a federal drug prosecution against several defendants charged with narcotics violations. In that federal case, Kesselman was a confidential informant and was "being protected." Williams then explained that before becoming an investigator in the district attorney's office, she had been a "special agent" for the California Department of Justice, where she spent two years in an undercover capacity. She expressed the view that in the capital case against petitioner, the disclosure of Kesselman's identity would endanger Kesselman's life. Williams then left the ex parte hearing in Judge Ambler's chambers, and the prosecution called Kesselman as a witness.
Kesselman testified that former boyfriend, Jose Angarita, had been distraught over the death of his friend, Orestes Guerrero, and that he had speculated that "it really wasn't just a robbery." Angarita told Kesselman that he learned about the details of the murder scene from his jewelry business partner, Dan Burke.
The prosecutor then asked Kesselman whether Angarita ever indicated that he knew petitioner, who was charged with killing the two Guerrero brothers. Kesselman replied, "He didn't say one way or the other." The bodies of the two Guerrero brothers were in different rooms, Kesselman said, "So [Angarita] was wondering how, you know, if [the killer] was just some robber, how did that robber manage to kill both people within such a short amount of time, without, you know, being heard and escaping. So that's why [Angarita] was speculating, well, maybe it could have been--maybe it was a revenge killing. Maybe it was a contract killing . . . . He was only speculating. He was wondering why someone, you know, if only the robber could be that fast or maybe there were two people. That's another speculation he used. Maybe there were two people."
According to Kesselman, Angarita was drawing upon his experience as a mercenary in Colombia and his knowledge of firearms when he speculated that the killer "had to be very fast or fairly well trained" or there must have been "two people." In response to questions by the prosecutor, Kesselman said that Angarita made no mention of having information that the murders were either revenge killings or contract killings. The prosecutor then asked whether Kesselman had formed any opinion "as to the reason for the killings based on [her] conversations with Jose Angarita," to which Kesselman replied, "No." After concluding her testimony, Kesselman left the pretrial ex parte hearing, and prosecution investigator Williams was re-called to testify.
The prosecutor asked Williams whether Kesselman had said that Angarita was the source of the information she had given to Williams. Williams replied: "She doesn't know anyone else in this case." Williams further stated that a reference to Angarita was contained in Sergeant Kracht's May 1984 "Supplemental Offense Report," which had been turned over to the defense.
At the end of the September 1985 pretrial ex parte hearing, Judge Ambler said that before ruling on the defense request for disclosure of the confidential informant's identity, he wanted to listen to the tape recording of Sergeant Kracht's April 1984 interview of confidential informant Kesselman.
2. Sergeant Kracht's tape-recorded interview of confidential informant Gale Kesselman
In a tape-recorded interview with Sergeant Kracht in April 1984 (three years before petitioner's capital trial), Kesselman described what former boyfriend Angarita had told her about the killings of the two Guerrero brothers. According to Kesselman, Angarita had been "real excited" when he told her that two of his friends had been killed. He said: "They say it was a robbery. But I know it wasn't." When Kesselman asked the reason for the killings, Angarita replied that it was "an organized murder" because of "something that happened years ago." He added that "one of the people was not supposed to die," wondering aloud why the "other guy" had to be there. Angarita had described the murders as "professional" based on the positions of the bodies, each in a different room. He said that the guy who "was picked up" in connection with the murders was "gonna take the . . . fall," and that there was someone else involved, who was "already on [his] way back to New York."
In the tape-recorded interview, Sergeant Kracht asked Kesselman whether she knew of anything else that might suggest that Angarita "was involved or not" in the killings. Kesselman replied: "[W]hile I was talking to [prosecution investigator] Sandy [Williams] and seeing the picture of the guy that, that was arrested for the murders, I think it's the same man that I had driven Jose [Angarita] to [meet] in San Francisco."
Kesselman then described driving with Angarita to a hotel on Nob Hill in San Francisco to meet a man who, Angarita said was from New York and was a "big" Colombian "drug dealer." At one point, Angarita told Kesselman to telephone the hotel for directions. Following the desk clerk's directions, they arrived at a hotel that Kesselman thought might have been a Hyatt Regency hotel. Standing by the hotel's door was a man Kesselman described as being in his mid-to-late 30's, or possibly younger. The man got into the car, and Kesselman drove around while Angarita and the man had a brief conversation in Spanish, a language that Kesselman did not understand. Kesselman was "almost positive" that Angarita called the man "Miguel" (petitioner's name is Miguel).
3. Additional evidence presented in support of the second habeas corpus petition
Claim G in petitioner's second habeas corpus petition asserts that the prosecution, before petitioner's capital trial, had failed to disclose evidence that would have supported a case in mitigation at the penalty phase of petitioner's capital trial that he had killed the two Guerrero brothers while acting under duress -- that is, under Colombian Mafia death threats against him and his family. In support of this claim, petitioner presented two declarations by Gale Kesselman, both dated August 7, 1997.
Kesselman's first declaration said that she had testified in chambers in petitioner's capital case, and that she also testified in a federal drug prosecution. After the federal case ended in convictions, she declined an offer by the federal Drug Enforcement Agency to place her in its witness protection program, as she perceived no threat to her personal safety.
Kesselman's second declaration described extensive cocaine smuggling and dealing activities of former boyfriend, Jose ...