California Court of Appeal, Second District, First Division
ORIGINAL PROCEEDING; petition for writ of mandate. Rand S. Rubin, Judge. Petition denied. The stay is vacated. (Los Angeles County Super. Ct. No. VA064489)
Vincent James Oliver and Samantha H.M. Kim for Petitioner.
No appearance for Respondent.
Jackie Lacey, District Attorney, Judith Pettigrew and Ellen St John, Deputy District Attorneys, for Real Party in Interest.
Juan Jose Pulido seeks review of an order in his habeas corpus proceedings, denying his motion to examine a material witness in Mexico on a commission, pursuant to Penal Code section 1349 et seq. We issued an order to show cause. Having considered the parties' petition, return, and reply, and having heard oral argument, we deny the petition.
In February 2002, a jury convicted Pulido of torture (§ 206), aggravated mayhem (§ 205), kidnapping (§ 207, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)) of victim Emanuel Cardenas, based on events occurring on March 19, 2001. The court sentenced Pulido to a prison term of 51 years and eight months plus life imprisonment. We affirmed the judgment in a nonpublished opinion ( People v. Pulido (Dec. 30, 2003, B161450)), and the California Supreme Court denied Pulido's petition for review.
Pulido filed a petition for writ of habeas corpus as to his actual innocence, which was denied by Superior Court Judge Lori Ann Fournier on November 16, 2010. On September 1, 2011, Pulido filed a petition for a writ of habeas corpus in this court, contending that acquired declarations establish that he is
actually innocent of the crimes of which he was convicted. On December 2, 2011, we issued an order to show cause, stating that the petition was denied on all other issues and " good cause exists for an evidentiary hearing before the superior court on the issue of actual innocence only." Pulido filed a Code of Civil Procedure section 170.6 peremptory challenge against Judge Fournier, and the matter was reassigned to Judge Rand S. Rubin, who appointed counsel for Pulido on November 26, 2012.
On or about April 2, 2013, Pulido filed a motion in the trial court requesting that Cardenas, the victim, be examined as a material witness in Mexico on a commission. The motion stated that Cardenas wished to recant his testimony at trial that [165 Cal.Rptr.3d 377] Pulido was the perpetrator. Cardenas had recently been deported to Mexico (according to a declaration from counsel, within the past 60 days), and was living in Rosarito Beach. Cardenas was therefore unavailable as a witness under Evidence Code section 240, and a commission was appropriate to examine Cardenas in Mexico and return his deposition to the court, under sections 1349 to 1351.
Cardenas's 2008 declaration
Attached to the motion was a declaration by Cardenas, signed before a notary in Nevada on November 15, 2008. Cardenas stated that he had lied in his preliminary hearing and trial testimony against Pulido, who was not the man who kidnapped and shot him. Cardenas had been trying to buy a gun to protect himself from some other men that he had argued with at a swap meet over their girlfriends. Cardenas asked his sister if he could buy a gun from her friend Pulido. Pulido came over to his house and showed Cardenas a gun on the morning of March 19, 2001, but Cardenas did not have enough money, and Pulido left after a few minutes. The men Cardenas feared then arrived in a van and ordered him inside the van at gunpoint. They headed toward Downey, asking about his friend " Javier" who had been with Cardenas at the swap meet. The men then said they were going to shoot him and leave him paralyzed for not telling where Javier was, for " trying to mess with their lady's" and most of all for " kicking back" with Pulido, who was one of their worst enemies. They threatened his life if he said anything about them to the police.
After Cardenas was released from the hospital, the police came to his house and said they were sure that Pulido was responsible for what happened to Cardenas, and if he did not testify against Pulido, they would bring drug charges ...