P. v. Martinez















Filed 11/9/10 P. v. Martinez CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. RODRIGO MARTINEZ MARTINEZ, Defendant and Appellant.	G040035 (Super. Ct. No. 05WF2919) O P I N I O N
In re RODRIGO MARTINEZ MARTINEZ on Habeas Corpus.	G042180

Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed.
Original proceeding; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County. Order to show cause issued, returnable to the Superior Court.
Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Lynne McGinnis, Arlene A. Sevidal and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant and petitioner Rodrigo Martinez Martinez of murder (Pen. Code, § 187, subd. (a); count 1) and assault on a child under the age of eight with force likely to produce great bodily injury resulting in death (Pen. Code, § 273ab; count 2). The trial court sentenced him to 25 years to life on count 2 and stayed the sentence on count 1.
Defendant appeals on the grounds the court erroneously excluded and admitted evidence and that these errors resulted in cumulative prejudice requiring reversal. He also petitions for habeas corpus, claiming ineffective assistance because his counsel failed to call or consult with an expert forensic pathologist to testify at trial on his behalf, object to forensic pathology and DNA evidence, impeach key prosecution witnesses, and also elicited prejudicial testimony from one witness.
Having consolidated the appeal with the petition for a writ of habeas corpus for all purposes, we affirm the judgment but conclude defendant has made a prima facie showing of ineffective assistance of counsel in the petition. Accordingly, we issue an order to show cause and return the matter to the superior court to conduct an evidentiary hearing to determine whether the petition has merit and defendant is entitled to the relief requested.

FACTS

Defendant lived with his girlfriend, Alma Hernandez, and her baby, Diana, in a garage apartment rented from the Gutierrezes. One Thursday, Elvia Gutierrez heard defendant say “ouch” and saw him kneeling with Diana pressed very hard to his chest. Diana was not crying and her coloring was normal. Defendant said he had twisted his ankle.
That Sunday around midnight while Hernandez was at work, defendant woke the Gutierrezes and told them Diana was sick. Diana was lying on the bed vomiting and looking pale and limp. When the Gutierrezes told him to call the paramedics, defendant said he was going to get his cell phone in his car but instead picked Hernandez up from work. Upon returning they took Diana to the hospital but she died around 3:30 a.m.
The autopsy showed Diana’s cause of death was severe blunt head trauma. Her complex skull fracture was less than a day old and mostly likely caused by one sharp blow. The injury likely would have resulted in immediate “neurologic dysfunction” such as lethargy or a decreased level of consciousness, and possibly loss of motor skills and difficulty breathing. Diana also had a rib fracture a few weeks old and other brain injuries ranging from under 24 hours to several weeks old.
At the hospital, defendant asked Miguel Gutierrez to lie and say Elvia Gutierrez had been taking care of Diana, but Miguel Gutierrez refused. Miguel Gutierrez agreed, however, to drive defendant home to “get rid of something.” On the way back to the hospital defendant threw a gun out of the car, which Miguel Gutierrez later retrieved. The pathologist opined Diana’s skull fracture could have been caused by being struck in the head with a gun. Diana’s DNA was found on the muzzle of the gun with defendant being the major contributor; Diana and her mother were minor contributors of DNA found on the gun’s slide.
Defendant told a detective that he had fallen on Diana when his knee gave out while he was carrying her into the kitchen where Hernandez was preparing a bottle. Diana’s head did not hit the ground but he had squeezed her into his body to protect her. They took her to the hospital because she was vomiting. He also told the detective Diana’s arm had been placed in a cast after she had hurt it playing on the bed with him and Hernandez and Hernandez had grabbed her arm to keep her from falling.
In a second interview, defendant maintained he had fallen with Diana in his arms but admitted Hernandez had been at work at the time. He also admitted he had gone home with Miguel Gutierrez to get rid of his gun.
Defendant was interviewed a third time after the cause of death was discovered. He stated Diana’s head injury occurred three days earlier when he fell after twisting his ankle and had squeezed her to his chest. She had a three-inch bump on her head, had stopped crying, and her color was not good. Although he told this information to Hernandez, they did not take Diana to the hospital because they were afraid he would be accused of “doing something” to her.

DISCUSSION

1. Appeal
a. Erroneous Exclusion of Evidence
The district attorney originally charged defendant with murder and assault on a child with force likely to produce great bodily injury; Hernandez was charged with child endangerment and being an accessory after the fact. The complaint was amended to also charge Hernandez with murder. Hernandez subsequently pleaded guilty to child endangerment and the murder charge was dismissed.
During the defense case, defendant called Hernandez as a witness and asked her if she had been originally charged with Diana’s murder; the prosecutor objected. Out of the jury’s presence, defense counsel argued she wanted to show Hernandez had pleaded guilty to a reduced charge. The prosecutor responded, “What she was originally charged with she pled to. [Another prosecutor] had added a [murder] charge, and gave the case to me, and I put it back to its original form.” In response to the court’s request for an explanation of “the relevance of that fact and that some D.A. had an opinion that he could get a murder count on this,” defense counsel answered she wanted to show Hernandez had set defendant up and that Diana’s death was due to “horrible negligence.” The court ruled that evidence Hernandez had pleaded guilty to a felony and child endangerment was admissible but excluded as irrelevant evidence that she was charged with murder.
Defendant argues the court abused its discretion in excluding evidence Hernandez had originally been jointly charged with defendant for Diana’s murder because it “tended to establish that [Hernandez] was motivated to indirectly implicate [defendant] as Diana’s murderer so that she could plead guilty to a much reduced charge, and thus was biased.” But there is no evidence that occurred. Rather, the record reflects that Hernandez pleaded guilty to the original charges, which did not include murder. Although another prosecutor amended the complaint to add the charge, the prosecutor who was assigned to the case changed it back and the original complaint served as the operative complaint to which defendant pleaded not guilty. As the trial court found, the murder charge was irrelevant as it was “nothing more than the opinion of [one prosecutor].”
A defendant is generally entitled to explore whether a witness has been offered any inducements or benefits as such evidence may suggest bias or motive (People v. Duran (1976) 16 Cal.3d 282, 294), but that right is not absolute and does not “prevent the trial court from imposing reasonable limits on defense counsel’s inquiry based on concerns about . . . relevance” (People v. Box (2000) 23 Cal.4th 1153, 1203, disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10). Although evidence of pending charges against a prosecution witness at the time of trial is relevant for impeachment purposes (see People v. Martinez (2002) 103 Cal.App.4th 1071, 1080-1081), evidence of arrests is inadmissible because it would seriously impair the witness’s credibility while only having “a weak ‘thread’” of relevance as to bad character (People v. Lopez (2005) 129 Cal.App.4th 1508, 1523). The same rationale applies to evidence of dismissed charges. Moreover, defendant cites no authority allowing the introduction of dismissed charges against a witness called by the defense. Absent such authority or evidence Hernandez pleaded guilty in exchange for the dismissal of the murder charge, the fact a prosecutor added a charge that was later dismissed is irrelevant.
Nor did the court’s ruling deprive defendant of his constitutional rights to present a defense, to due process, or to confront the witnesses against him by virtue of the excluded evidence. “‘As a general matter, the “[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.]’” (People v. Boyette (2002) 29 Cal.4th 381, 427-428.) Similarly, the confrontation clause does not prevent the trial court from placing reasonable limits on witness examination. (People v. Ledesma (2006) 39 Cal.4th 641, 704-705.)
Although the court precluded evidence of the dismissed murder charge against Hernandez, it allowed her to be impeached with evidence she had pleaded guilty to both a felony and child endangerment. Thus, for justifiable reasons, defendant was only prevented from introducing specified evidence and not from challenging Hernandez’s credibility. Such a narrow restriction did not compromise the fundamental fairness of the trial.

b. Erroneous Admission of Evidence
(1) Autopsy Photograph
Prior to trial, defendant sought to preclude the prosecution from introducing two autopsy photographs on the ground their prejudicial impact exceeded their probative value. The trial court allowed the admission of only one photograph, ruling it was relevant because it showed “the significant injury under the scalp” and “there is probative value in allowing the jury to see the freshness and size of the injuries which are not, in the court’s view, clearly articulated in the coroner’s diagrams . . . .” But it ordered the photograph cropped to show only the skull injury without the peeled back scalp to reduce potential inflammatory effect.
Defendant contends the admission of this “gruesome” photograph served only to inflame the jury’s emotions against him, and therefore the court’s ruling was an abuse of discretion. We disagree.
The admission of autopsy photographs is committed to the broad discretion of the trial court under Evidence Code section 352. (People v. Burney (2009) 47 Cal.4th 203, 243.) A court abuses its discretion only when its ruling exceeds the bounds of reason. (People v. Kipp (1998) 18 Cal.4th 349, 371.) “Autopsy photographs of a murder victim are always relevant at trial to prove how the crime occurred; the prosecution need not prove these details solely through witness testimony. [Citations.]” (People v. Carey (2007) 41 Cal.4th 109, 127.) That they may be “‘graphic and unpleasant to consider does not render the introduction of those images unduly prejudicial.’ [Citations.]” (People v. Carter (2005) 36 Cal.4th 1114, 1168.)
Defendant acknowledges the autopsy photograph “might be relevant to the ‘main issue’ of the time of death” but argues “it was hardly necessary to the prosecutor’s case given the coroner’s testimony as to the nature of the injuries observed and documented in his report . . ., his diagram showing the extent of skull fracture . . ., and the two other photographs of Diana in the hospital . . . .” But the Supreme Court has “‘often rejected the argument that photographs of a murder victim should be excluded as cumulative if the facts for which the photographs are offered have been established by testimony. [Citations.] Because the photographic evidence could assist the jury in understanding and evaluating the testimony,’” the trial court may exercise its discretion to admit the photographs. (People v. Perry (2006) 38 Cal.4th 302, 318.)
Defendant also asserts that because “the coroner testified he could ascertain only that the injury occurred within twenty-four hours of Diana’s death” and the prosecutor acknowledged defendant “was alone with Diana for only the last six hours of her life,” “a proper ‘consideration of the relationship between the evidence and the relevant inference to be drawn from it’ would weigh against the admission of this gruesome autopsy photograph under section 352 . . . .” But the fact the photograph did not establish the exact time of death did not render it irrelevant. Rather, as the court found, it was relevant to show Diana’s “significant injury under the scalp” and the “freshness and size of the injuries.”
Finally, defendant argues that because the autopsy photograph was enlarged and “showed Diana after she had been ‘grossly disfigured during autopsy’ by having her scalp removed from her skull,” “its admission created substantial danger of undue prejudice which outweighed any probative value.” The trial court was aware of the potential inflammatory nature of autopsy photographs. For that reason, it allowed into evidence only one of the two photographs sought to be admitted by the prosecution and attempted to limit the graphic nature of the photograph by having it cropped. That the cropping of the photograph resulted in the enlargement of the photograph does not mean the court admitted it in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice. Moreover, we have reviewed the photograph and conclude it was not unduly prejudicial. Although unpleasant, it was not “so gruesome as to have impermissibly swayed the jury. [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 974.) The trial court did not abuse its discretion in finding the probative value of the evidence outweighed the prejudice.

(2) Forensic Pathology and DNA Evidence
In his supplemental opening brief, defendant relies on Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___ [129 S.Ct. 2527, 174 L.Ed.2d 314] (Melendez-Diaz) to contend his state and federal rights to confrontation, due process, and a fair jury trial were violated when Dr. Anthony A. Juguilon, the prosecution’s forensic pathology expert who performed the autopsy on Diana, testified about the contents of a microscopic neuropathology report written by Dr. John M. Andrews, who did not testify. He also argues these rights were violated when the prosecution’s forensic scientist, Annette McCall, testified about the collection and testing of DNA from defendant’s gun because she did not personally conduct all of the tests.
Although no objection was made to either Dr. Juguilon’s or McCall’s testimonies, defendant argues these claims were not forfeited because at the time Melendez-Diaz had not been decided and his counsel may have relied on People v. Geier (2007) 41 Cal.4th 555, 605-607 [laboratory reports not testimonial]. But as Melendez-Diaz stated, “The defendant always has the burden of raising his Confrontation Clause objection” (Melendez-Diaz, supra, ___ U.S. at p. ___, 129 S.Ct. at p. 2541) and “[t]he right to confrontation may . . . be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections[ citation]” (id. at p. ___, 129 S.Ct. at p. 2534, fn. 3).
Additionally, Crawford v. Washington (2004) 541 U.S. 36, 59, 68 [124 S.Ct. 1354, 158 L.Ed.2d 177] was the governing law at the time of defendant’s trial in 2008. Rejecting the dissent’s assertion the majority was “overruling 90 years of settled jurisprudence” (Melendez-Diaz, supra, ___ U.S. at p. ___, 129 S.Ct. at p. 2533), Melendez-Diaz stated its ruling involves a “rather straightforward application of our holding in Crawford” and that it was “faithfully applying Crawford to the facts of this case” (ibid.). Because Crawford was decided before defendant’s trial, the general rule requiring contemporaneous objection applies and defendant’s failure to object at trial forfeits his confrontation clause claims presented for the first time on appeal.
Alternatively defendant argues defense counsel was ineffective because he did not object to Dr. Juguilon’s or McCall’s testimony and filed a supplemental petition for habeas corpus on that ground. We turn to the habeas petition now, having found no error, much less cumulative error, in defendant’s direct appeal of the judgment.

2. Petition for Habeas Corpus
Among other grounds, defendant argues he received ineffective assistance because his counsel failed to consult or call a forensic pathology expert to testify about the timing and cause of the fatal injury despite knowing at least one such expert had extended the timing to a period when defendant was not alone with the child and whose findings contradicted those of Dr. Juguilon’s.
The standard for determining ineffective assistance of counsel is well settled. To prevail, a defendant must show that, when viewed objectively, counsel’s performance fell below prevailing professional standards and was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”’ [Citations.]” (People v. Weaver (2001) 26 Cal.4th 876, 925.) But “counsel’s alleged tactical decisions must be subjected to ‘meaningful scrutiny.’ [Citation.] Tactical decisions must be informed, so that before counsel acts, he or she ‘“will make a rational and informed decision on strategy and tactics founded on adequate investigation an preparation.”’ [Citations.]” (In re Lucas (2004) 33 Cal.4th 682, 722.)
As part of the writ petition defendant filed the declarations of his public defenders Michael Hill and James Appel. Hill stated in his declaration he had retained Dr. Janice Ophoven, a pediatric pathologist to review the case. Dr. Ophoven determined Diana had sustained her fatal injury weeks before her death, not just hours before as Dr. Juguilon opined. Hill’s notes from a telephone conversation state that according to Dr. Ophoven: “Autopsy clearly wrong as to when injuries happened. [¶] . . . Could have happened the way D said re the fall Thursday. [¶] Absolutely nothing to do with a gun. Blunt force trauma against floor or wall most likely. [¶] Thinks autopsy report is extremely misleading. Hiding fact that injuries are old.” (Bold omitted.)
Appel, who replaced Hill as defense counsel in August 2006, declared the district attorney’s office provided him with a report from neuropathologist Dr. Andrews indicating Diana’s fatal injury occurred 7 to10 days before she died. In December, Appel spoke with Dr. Ophoven who told him “Diana . . . suffered her fatal injury some substantial time before she was brought to the hospital where she died. Her fatal brain injury was at least several weeks old and may well have been present when [she] was treated for an arm injury on September 13, 2005. The fatal subdural hemorrhage was much older than seven to ten days, and was most likely older than two or three weeks.”
Two months later, Appel sent Dr. Ophoven additional discovery, including Diana’s final death certificate and autopsy and embalming photographs. He had planned to consult with her, obtain a written report, and call her as an expert pediatric forensic pathologist but before he could do so defendant’s family retained Sherry Garrels to represent him and relieved the public defender’s office as counsel of record. Appel attested that, had that not occurred, he would have called Dr. Ophoven as a pediatric forensic pathology expert and had an investigator interview Dr. Andrews. Assuming Dr. Andrew’s interview was consistent with his report, Appel would have called him to testify as well. Appel “believe[d] their expert testimony would have significantly extended the timing of Diana’s fatal head injuries beyond the several hours when [defendant] was alone with Diana just prior to her death” to a time when others were taking care of Diana or had access to her and could have caused the fatal injury.
At trial, the prosecutor did not call Dr. Andrews as a witness and relied instead on Dr. Juguilon, who testified the cause of death was severe blunt head trauma. According to Dr. Juguilon, the fatal injury was “fresh,” less than 24 hours old based on the absence of inflammation, and would have immediately resulted in lethargy if not unconsciousness, as well as breathing problems and a loss of motor skills. It could not have been caused the way defendant described, i.e., by him falling on or squeezing her, a few days before her death but it could have been caused by being hit by defendant’s gun.
Garrels did not contact or consult with Dr. Ophoven or Dr. Andrews, call them to testify on defendant’s behalf, or investigate whether Dr. Andrews’s findings conflicted with those of Dr. Juguilon’s regarding the timing of the fatal injury. Defendant contends that had she done so, Garrels could have refuted Dr. Juguilon’s testimony about the timing and cause of the fatal injury with evidence the fatal injury occurred weeks before Diana’s death and was caused by blunt force trauma possibly occurring in the manner defendant described but not by being hit with a gun.
The Attorney General responds there is no evidence that any expert would have so testified because neither Hill nor Appel attested to that and no declaration or report by Dr. Ophoven was presented. Although he acknowledges Hill’s notes of his conversation with Dr. Ophoven, he argues “Dr. Ophoven had not yet reviewed important evidence, including the autopsy and embalming photographs,” when she talked to Hill. But the record shows by the time she had the conversation with Hill, Dr. Ophoven had already reviewed the autopsy reports and pathology slides. The Attorney General has not explained how autopsy and embalming photographs would have changed Dr. Ophoven’s opinion.
Nor do we agree with the Attorney General’s assertion Hill’s “cryptic notes” were ambiguous because the statement “the injury had absolutely nothing to do with a gun” could have “simply refer[red] to the undisputed fact that the injury was not a gun[]shot wound.” If it was undisputed Diana did not die from a gunshot wound, there was no need for Hill to mention it in his notes. Moreover, viewed reasonably and in context, i.e., sandwiched between the statements the injury “[c]ould have happened the way [defendant] said” and that the cause was “[b]lunt force trauma against the floor or wall most likely,” the notation shows Dr. Ophoven was referring to a blow to the head, not a gunshot wound.
We agree with the Attorney General that the statement about the injury being caused most likely by blunt force trauma against a floor or wall does not mean it could have been caused by defendant falling with Diana several days before her death. But neither does it contradict it. As defendant notes, “The point is that Dr. Ophoven was adamant that a gun did not cause the fatal injury, and that a fall could have caused it.”
The Attorney General maintains defendant failed to show Garrels was ineffective in not calling Dr. Ophoven to testify because Appel’s notes of his subsequent conversation with Dr. Ophoven did not indicate the blunt force trauma was due to Diana hitting her head on a wall or floor as opposed to being hit with a gun. Presumably, the argument is that Garrels did not call Dr. Ophoven as a witness because her opinion no longer favored the defense. But there is no evidence to support that inference. Rather, Appel’s notes show the primary focus of the conversation was the timing of the fatal injury, not what caused it. The fact the cause of the blunt force trauma was not mentioned shows nothing.
As to why she did not consult with or call Dr. Ophoven or another expert to testify on defendant’s behalf, Garrels gave appellate counsel different reasons. Garrels first told appellate counsel she wanted to call Dr. Ophoven but defendant’s family did not send her the necessary money. She subsequently acknowledged she knew she could seek funds from the court for expert fees. The record contains no explanation why she did not.
Acknowledging Garrels “could have petitioned the court for money to hire an expert witness,” the Attorney General contends defendant did not show “the court would have approved the amount of funds necessary to hire Dr. Ophoven, an expensive out of state witness.” But that would have been an impossible burden because it is unknown what the court would have done had Garrels made any attempt to obtain the funds. Further, the fact Dr. Ophoven had “been retained numerous times by [the public defender’s office]” implies the court had previously approved her fees and no reason has been given to assume otherwise.
Garrels also said she did not pursue calling Dr. Ophoven to testify because she had spoken with other experts who told her the injury had occurred within 24 hours of the child’s death. Citing this explanation, the Attorney General concludes Garrels made a reasonable decision not to call Dr. Ophoven to testify because she “could have been discredited by multiple expert witnesses[] and thus it is unlikely that the jury would have found her credible.” That contradicts Garrels’s initial assertion that she wanted to call Dr. Ophoven but did not because of lack of funds. Furthermore, although Garrels claimed she had consulted with other experts, she later clarified to appellate counsel that she had informally consulted with “‘doctor friends’” whom she had asked to review Diana’s x-rays. The record contains no evidence these friends were forensic pathology experts or that they had reviewed anything other than Diana’s x-rays.
Moreover, despite the claim of consulting other experts, Garrels subsequently told appellate counsel that she wanted to call Dr. Ophoven as an expert witness but defendant did not think her testimony was important and did not want to call her as a witness, a fact defendant denies. Defendant also denies telling Garrels that Hernandez would testify she killed Diana, which Garrels later told appellate counsel was another reason she did not believe experts were necessary. These disputed factual questions as to matters outside the trial record warrant an evidentiary hearing. (People v. Duvall (1995) 9 Cal.4th 464, 478-479.)
Trial counsel’s exercise of discretion, although broad, “‘must be a reasonable and informed one in light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation.’” (In re Hall (1981) 30 Cal.3d 408, 427 [counsel acted deficiently by failing to call alibi and third party culpability witnesses].) Based on the evidence presented, we cannot conclude that occurred in this case. Defendant has made a sufficient prima facie showing of facts, which could entitle him to relief. Because this court is not designed to conduct evidentiary hearings or to determine the credibility of witnesses, we shall issue an order to show cause returnable to the superior court for the purpose of conducting an evidentiary hearing and a determination of whether the petition for a writ of habeas corpus has merit and defendant is entitled to the relief requested.
Because we have already decided that the trial court should hold a hearing as to the competency of counsel, we need not make any determinations as to the other grounds raised by defendant in his petition as they fall within our order.

DISPOSITION

The judgment is affirmed.
Having read and considered the petition for a writ of habeas corpus, we conclude it should be considered by the superior court in the first instance following an evidentiary hearing. Accordingly, we issue an order to show cause returnable to the Orange County Superior Court, Department 1, located at 700 Civic Center Drive West, Santa Ana, California, for the purpose of conducting an evidentiary hearing and determination of the merits of the petition.
Respondent shall file a return to the petition for a writ of habeas corpus in the superior court within 30 days from the date this opinion is filed. (Cal. Rules of Court, rule 8.385(e).) Petitioner shall file and serve a denial within 30 days after the return is filed in the superior court. (Cal. Rules of Court, rule 4.551(d).)
Within 30 days after the denial is filed, or after the expiration of the time for filing a denial, the superior court shall order an evidentiary hearing at which the parties have an opportunity to present testimony and evidence on the issues raised in the petition for a writ of habeas corpus. Following the evidentiary hearing, the superior court shall grant or deny relief based on the law and its determination of the facts. (See People v. Romero (1994) 8 Cal.4th at 728, 739-740.)
The clerk of this court is directed to transmit forthwith a copy of this opinion and this court’s file in case number G042180 to Department 1 of the Orange County Superior Court.




RYLAARSDAM, ACTING P. J.

WE CONCUR:



O’LEARY, J.



IKOLA, J.



Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com