Filed 2/10/17 (unmodified opinion attached)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                              DIVISION THREE



In re GUY DONELL MILES                                   G046534

    on Habeas Corpus.                                    (Super. Ct. No. 98NF2299)

                                                         ORDER MODIFYING OPINION
                                                         AND DENYING PETITION FOR
                                                         REHEARING; NO CHANGE IN
                                                         JUDGMENT


      THE COURT:
      It is ordered that the opinion filed herein on January 19, 2017, be modified as
follows:

       1. On page 9, second full paragraph, change the following last full sentence that
appears on that page:
       “The tow truck driver give his father a receipt” to “The tow truck driver gave his
father a receipt.”

       2. Insert a new footnote 13 on page 24, second full paragraph, after the following
sentence:
       “However, should there be a new trial, our ruling regarding the admissibility of
Bailey’s declaration is not binding on the trial court.” The new footnote 13 text is the
following: “Bailey’s declaration was taken into consideration, but it was not the
exclusive basis for granting Miles’ petition for writ of habeas corpus. (See In re Fields
(1990) 51 Cal.3d 1063, 1070, fn. 3.) To be clear, even if we were to disregard Bailey’s
declaration, we would still grant the petition based on the remaining evidence presented
to this court.”

        3. On page 36, change the numbering of the previously existing footnote 13 to
reflect that it will now be designated footnote 14.

      This modification does not change the judgment.

      The petition for rehearing is DENIED.



                                                MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




                                            2
Filed 1/19/17 (unmodified opinion)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                         DIVISION THREE



In re GUY DONELL MILES                                 G046534

    on Habeas Corpus.                                  (Super. Ct. No. 98NF2299)

                                                       OPINION


                 Original proceedings; petition for a writ of habeas corpus to challenge an
order of the Superior Court of Orange County, Frank F. Fasel, Judge. (Retired judge of
the Orange County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the
Cal. Const.) Petition granted. All requests for judicial notice granted. Petitioner’s
request for release on unscheduled bail amount denied.
                 California Innocence Project, Jan Stiglitz, Justin Brooks, Alexander
Simpson and Alissa Bjerkhoel for Petitioner.
                 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton, Garrett Beaumont and Adrianne S. Denault, Deputy Attorneys
General for Respondent.
                                     *         *             *
                “The Habeas Corpus secures every man here, alien or citizen, against
everything which is not law, whatever shape it may assume.” --Thomas Jefferson.
                Guy Miles is in state prison for 75 years to life. A jury convicted him of
armed robbery and he has been in custody for almost 19 years. For all of those years,
Miles has claimed that he was wrongfully convicted. But he has now presented “new
evidence” to this court that is of “such decisive force and value that it would have more
                                                                                         1
likely than not changed the outcome at trial.” (Pen. Code, § 1473, subd. (b)(3)(A).)
                Thus, Miles has secured a writ of habeas corpus.


                                                I
                                      INTRODUCTION
                On June 29, 1998, three men committed an armed robbery at a small loan
office in Fullerton. Two employees were on duty. Weeks later, both of the victims
separately looked at a six-pack lineup and picked out Miles as one of three robbers.
Although no physical evidence linked Miles to the crime scene, and several alibi
witnesses placed him in Las Vegas on the day of its occurrence, a jury convicted Miles of
the armed robbery along with one codefendant.
                Miles filed a petition for a writ of habeas corpus in this court, attaching
declarations from his codefendant and two other men. All three confessed to their role in
the robbery; all three have sworn under penalty of perjury that Miles was not at the loan
office and had nothing to do with the robbery. We issued an order to show cause and
ordered evidentiary hearings, which have now taken place.
                The law has changed since Miles first filed his petition. Prior to January 1,
2017, in order to grant habeas relief, we needed to find that the “new evidence”


1
    Further undesignated statutory references will be to the Penal Code.
                                                2
completely undermined the prosecution’s case and pointed “‘“unerringly to innocence.”’”
(In re Johnson (1998) 18 Cal.4th 447, 462, italics added.) Although the new evidence is
compelling, it did not completely undermine the prosecution’s case, nor did it point
unerringly to innocence. The two robbery victims have never wavered in their
identifications of Miles as one of the culprits. And the three confessors are all convicted
felons who are likely shielded from prosecution by either the double jeopardy clause or
the statute of limitations. But after Miles filed his petition, the California Legislature
lowered the standard for granting habeas corpus relief. Effective January 1, 2017, habeas
relief is now granted when: “New evidence exists that is credible, material, presented
without substantial delay, and of such decisive force and value that it would have more
likely than not changed the outcome at trial.” (§ 1473, subd. (b)(3)(A).)
              Under the recently amended statute, the three confessions qualify as “new
evidence” and Miles meets the new standard for habeas corpus relief. Thus, we will
grant the petition and vacate Miles’ convictions. If the prosecution elects to pursue a new
trial, the jury will be able to consider the new evidence. If there is not a new trial within
the statutory timeframe, Miles is to be released from custody. (§ 1382, subd. (a).)


                                              II
                     FACTUAL AND PROCEDURAL SUMMARY
              On June 29, 1998, A. Holguin was working at Trio Auto Parts in Fullerton,
which was located in a strip mall next to Fidelity Financial Services (Fidelity). Just prior
to 6:00 p.m., Holguin noticed three black men in a car in the parking lot. Two of the
men, Accomplice One and Accomplice Two, were walking towards Fidelity.
Accomplice Two stared at Holguin and made a hand gesture, which Holguin
characterized as a gang sign. Accomplice Three entered the auto parts store and began



                                              3
talking with Holguin about parts for a 454 engine in a 1975 Caprice, a rare engine for that
car.
              Accomplice One and Accomplice Two knocked at the front door of
Fidelity, which primarily makes car loans to people with bad credit. Employees
M. Patlan and T. Gomez were inside. Generally, the front door is unlocked during
business hours, but the door is locked when there are only two employees on duty. Patlan
unlocked the front door, let the two men in, and returned to his position behind the
counter. Accomplice One, who was thin and wearing a suit, said that he wanted to make
a car payment for his brother. Accomplice Two, who was stockier and wearing a light
colored shirt and jeans, asked if he could use the restroom.
              Accomplice Two went to the backroom, passing by Gomez’s desk. In less
than a minute, Accomplice Two rushed out from the backroom towards the front counter.
As he passed Gomez’s desk, she looked up and saw the back of Accomplice Two’s head.
Accomplice Two struck Patlan from behind on the left side of the face and the ear.
              Accomplice One walked around the counter, pulled out a big barreled
weapon, and demanded money. Gomez was ordered to the ground. Accomplice Two
opened a drawer and a filing cabinet and picked up money and a few envelopes. The
amount of money taken was later determined to be about $1,400 in cash and about $4,000
in checks. Accomplice Two told Gomez and Patlan to put their hands on their heads and
walk to the backroom where the bathroom is located. They were told not to come out or
open the door for 15 minutes.
              Holguin was still talking with Accomplice Three when he heard a car horn
honking. He looked up and saw that Accomplice One and Accomplice Two were back in
the car in the parking lot. Holguin told Accomplice Three that he thought his friends
wanted him to hurry up. Holguin watched as Accomplice Three got into the car and
drove away.

                                             4
The Investigation
              After waiting 15 minutes, Gomez called 911. She described the suspects as
two black males. She said Suspect One was “skinny” and was wearing a green suit. She
said Suspect Two was “kind of stocky looking.”
              When the initial responding officer arrived, Patlan was bleeding from the
mouth and right ear. As paramedics took Patlan out in a gurney he noticed a gardening
glove near the door at the front entrance. The glove was booked into evidence and later
tested for DNA, but the results were inconclusive. The loan office was dusted for
fingerprints, but no usable fingerprints were discovered.
              Patlan’s and Gomez’s descriptions of what occurred were largely
consistent. Patlan described Accomplice One as follows: tall and thin (about 6’2” and
150 pounds) in his 20’s; clean shaven; dark complexion. He said Accomplice One
looked like Warren G, a rap celebrity singer. Patlan described Accomplice Two as
follows: shorter and stockier (about 5’9” and 200 pounds); round face; no tattoos;
possible goatee; dressed in a white polo shirt with jeans. Gomez said that when she was
looking up at Accomplice Two she noticed he had a roll in the back of his neck and that
he had a chubbiness to his face. Years later, Gomez said that there was no significant
height difference between Accomplice One and Accomplice Two.
              The next day, the police interviewed Holguin at the Fidelity office. As
Holguin told the police what happened at Trio Auto Parts during the robbery, a Fidelity
employee overheard the conversation. She retrieved a customer’s records and walked up
and said, “Is this the person that you saw in your store [?]” She showed Holguin a copy
of a driver’s license and he said, “That was the person.” The photograph was of Bernard
Teamer. The police took Teamer’s financial records, which disclosed his assets,
including a 1975 Chevrolet Caprice. All of the witnesses reported that all three
accomplices to the robbery were in their 20’s.

                                             5
              A Fullerton police detective investigated the robbery. The detective
obtained Teamer’s loan documents and started running background checks. The
detective found that Teamer was affiliated with the 190 Street Crip gang out of Carson.
The detective contacted a Los Angeles Sheriff’s Department gang enforcement officer.
The gang officer assisted the detective in obtaining possible suspect photographs. The
detective conducted surveillance on Teamer, whom he saw with Harold Bailey, one of
the three men who later confessed to being involved with the robbery.
              The detective assembled several six-pack photographic lineups. The
detective tried to include photographs of potential suspects along with people who had a
similar appearance to the suspects, i.e., “fillers.” In some lineups, the detective placed
several suspect photographs in the same lineup.
              Prior to showing the witnesses each photographic lineup, the detective gave
them a written admonishment, which they read and signed. The admonition stated that
any of the photographs may or may not include those involved in the crime. One of the
lineups contained a photograph of Bailey, who Gomez said looked similar to Accomplice
    2
One. Another lineup contained a photograph of Miles. Gomez positively identified
Miles as Accomplice Two. Holguin made a possible identification of Miles as
Accomplice Two.
              Within a few days of showing the photographic lineups, the detective
arrested Miles and Teamer. Miles was arrested in Las Vegas. He waived his
constitutional rights and denied any involvement in the robbery. Miles said he knew



2
 If the three confessions are to be believed, Bailey was actually Accomplice Two and
Jason Steward was Accomplice One. It was stipulated in a later reference hearing that
within a year of the robbery Bailey was six feet tall, and weighed 198 pounds, while
Steward was six feet, two inches tall, and weighed 155 pounds. On the day of his arrest,
Miles was five feet, nine inches tall, and weighed 190 pounds.
                                              6
Teamer and the first time he had seen Teamer in four to five months was the previous
Friday.
              The detective notified Patlan by phone that he had apprehended two of the
robbers. The detective later met with Patlan who positively identified Miles in
photographic lineup as Accomplice Two.


The Trial
              The People filed an amended information charging Miles and Teamer with
two counts of second degree robbery and possession of a firearm by a convicted felon.
(§§ 211/212.5, subd. (c), 213, subd. (a)(2), former 12021, subd. (a), repealed by Stats.
2010, ch. 711, § 4; reenacted without substantive change as § 29800, subd. (a)(1) by
Stats. 2010, ch. 711, § 6, eff. Jan. 1, 2012.) The information alleged that the offenses
were committed for the benefit of a criminal street gang and they were gang-related
offenses in which a principal used a firearm. (§§ 186.22, subd. (b)(1), 12022.53, subds.
(b) & (e)(1).) The information also alleged Miles inflicted serious bodily injury on
Patlan, had been previously convicted of three serious felonies, had three “strike” priors,
and had served two prior prison terms. (§§ 12022.7, 667, subds. (a)(1), (b)-(i).)
              Nearly a year after the robbery, Miles and Teamer were tried together
before a jury. Patlan, Holguin, and Gomez testified as percipient witnesses. In front of
the jury, Patlan identified Miles in court as Accomplice Two. Patlan agreed that Miles
had marks or indentations on his head, but Patlan said they would not be able to be seen
if Miles had a full head of hair. Holguin was not asked to identify Miles in court.
              During a break, when the judge and the jury were not present, Gomez could
not identify Miles as Accomplice Two. Gomez repeatedly told the prosecutor that she
was unable to do so, even after she stood close to Miles at counsel table. But just prior to
her testimony, the prosecutor showed Gomez a color copy of Miles’ booking photo, with

                                             7
his booking number and arrest date. According to Miles’ counsel, this occurred in the
hallway. After looking at the booking photo, Gomez then positively identified Miles in
court in front of the jury.
               The prosecution’s gang expert explained criminal street gang culture, slang
terms, and behavior. He found significant the presence of multiple tattoos worn by
Teamer and Miles. Ultimately, the expert opined that Teamer and Miles committed the
Fidelity robbery to benefit their gang. He noted that Miles had been arrested in Las
Vegas driving another gang member’s car.


The Defense
               Miles’ father Charles testified that at the time of the robbery Miles had
                                           3
been living in Las Vegas for about a year. Miles’ 12-year-old son De Andre lived with
his mother in Sacramento. Each summer De Andre would visit and stay at his
grandparent’s home in Carson, which is located in Los Angeles County. Charles
arranged for De Andre to visit in the summer of 1998 by purchasing a round-trip flight
                                 4
with an August departure date.
               On Saturday, June 27, Charles and his wife Mabel picked up De Andre at
Los Angeles (LAX) airport at 8:00 p.m., and brought him home. De Andre called his
                                                     5
father in Las Vegas collect that night at 10:20 p.m. Charles was “a little upset about it

3
 Because they share a last name, we will refer to Miles’ family members by their first
names in order to avoid confusion. No disrespect is intended.
4
 A Southwest Airlines ticket was used to refresh Charles’ recollection. The document
was marked as an exhibit, but it was not admitted into evidence. The court found that the
defense attorney did not lay an adequate foundation.
5
  A telephone bill was used to refresh Charles’ recollection. The document was marked
as an exhibit, but it was not admitted into evidence. The court found that the defense
attorney did not lay an adequate foundation.
                                               8
because we thought he was going to spend the summer with us and, the moment he got
there, he wanted to call his father and go spend the summer with his father.” On Sunday,
June 28, they all went to church where Charles worked as a pastor. “Afterwards, we
came home, with the rest of the family came over to greet him in Carson – to greet him
home. He comes home for the summer, so the whole family was over and, of course, we
had dinner and just enjoyed one another and enjoyed him, too.”
              On Monday, June 29,—the morning of the robbery—Miles picked up
De Andre at about 3:00 a.m. Miles was only at his parent’s home for 10 minutes at the
longest. On cross-examination Charles testified that Miles has friends and family in the
area and it wasn’t unusual for him to come to the Carson area. Mabel testified consistent
with Charles’s testimony. Mabel also testified that Miles had been shot 13 years earlier
and as a result, he had a noticeable scar from his hairline to his ear and an indenture in his
head.
              De Andre testified that he flew from Sacramento to Los Angeles.
De Andre telephoned his father who was in Las Vegas when he arrived at his
grandparent’s home. The next day, he went to church with his grandparents and attended
a family dinner at their home. Miles picked up De Andre at 3:00 a.m. On the drive to
Las Vegas, his father stopped at a 7-Eleven, a gas station, and a McDonalds. They
arrived in Las Vegas between 7:00 and 8:00 a.m. His father slept for about 90 minutes.
They then drove to meet two of Miles’ friends. De Andre was with his father the entire
day and spent the night at his home in Las Vegas. The following morning, De Andre saw
that his father’s car had been broken into the prior night and the column had been
                                                                                         6
damaged. He saw the car being towed. The tow truck driver give his father a receipt.


6
  A yellow receipt from Auto Body Plus and a copy of log from the tow yard were used
to refresh De Andre’s recollection, but they were not admitted into evidence. The court
found that the defense attorney did not lay an adequate foundation.
                                              9
                Gloria Perry testified that Miles had been living in Las Vegas since
sometime in 1997. She said she saw Miles at his home on Sunday, June 28, 1998, while
                                   7
she was having her hair braided. She said that she saw Miles on the freeway driving
towards Los Angeles with his girlfriend sometime between 6:00 and 8:00 p.m. She next
spoke to Miles by telephone on Monday, June 29, 1998— the day of the robbery—
sometime between 4:45 and 5:00 p.m.
                The resident manager of Miles’ apartment complex in Las Vegas testified
that she spoke to Miles on Monday, June 29, 1998, at around 9:00 a.m., by telephone, and
noticed that his car was parked in its normal parking space later in the afternoon. She
also saw Miles and his son the following day between 12:00 noon and 2:00 p.m., and
testified that Miles’ car had been towed.
                Patricia Joseph testified that she was Miles’ upstairs neighbor at the Las
Vegas apartment for five to six months. She testified that late in the evening on June 28,
she saw Miles and his girlfriend drive away from the apartment complex. She next saw
Miles between 7:00 and 8:00 a.m. the next morning—the morning of the robbery—with
his son. Joseph saw Miles again in his apartment between 4:00 and 7:00 p.m. on the
            8
same day.
                Dr. Scott Fraser is a psychologist, researcher, and professor who testified as
an expert in eyewitness memory. Dr. Fraser testified that race and other factors can
affect the accuracy of eyewitness memory. According to Dr. Fraser, consistent scientific
studies show “the other race effect.” Dr. Fraser said that people “are just less accurate in
terms of identifying members of a different race.” Dr. Fraser also described “photo bias”

7
  The date was not stated on the record, but appears to be a logical inference based on the
rest of Perry’s testimony.
8
 Additional Las Vegas witnesses testified at the habeas corpus hearings. To varying
degrees, they generally placed Miles in Las Vegas at or near the date of the crime.
                                              10
as another factor that can affect the accuracy of eyewitness identifications. The “term
refers to [the] effects of one recognition test on any subsequent recognition test[s].” That
is, a person’s memory becomes more vivid because of repeated exposures to
photographs. “They can now recall more details of the person, but it is the product of the
recognition test. It is not [the product of] the original observation.”


The People’s Rebuttal Evidence
              Dr. Ebbe Ebbsen is a psychology professor whose emphasis is in
methodology. Dr. Ebbsen said he is a colleague of Dr. Fraser, is familiar with his
viewpoints in the area of eyewitness identification, and was highly critical of the
methodology of that type of research. Dr. Ebbsen said that the research in the area of
eyewitness identification cannot be generalized. He said there are a large number of
theories about memory that are available, but they are in competition. “So the point is at
this point in time, we don’t have what people think of as scientific understanding of
human memory.” Dr. Ebbsen believed that experts in the field of eyewitness
identification should not be rendering opinions in court.


The Verdict, New Trial Motion, and Sentencing
              The trial had lasted about four weeks. On the third day of deliberations, the
jurors sent back a note asking “when does a jury become a hung jury?” The court
responded that: “A hung jury is when the jury is hopelessly deadlocked.” On the fifth
day, the jury convicted defendants of all charges and found true all the enhancements.
Later, the court denied Miles’ new trial motion. The court also denied a motion to strike
any of Miles’ three prior strike convictions, which had occurred in one prior incident.
The court sentenced Miles to a 75 years to life prison term.



                                              11
Postjudgment Proceedings
              In 2003, this court reversed both defendants’ criminal street gang
enhancements for lack of sufficient evidence. In all other respects, the judgments were
affirmed. The California Supreme Court later denied petitions for review.
              In 2010, Miles filed a petition for writ of habeas corpus in the superior
court. Miles made three claims: 1) new evidence of third party culpability; 2) false
                                                 9
eyewitness testimony; and 3) actual innocence.       The petition included declarations from
Teamer, Bailey, and Steward, each stating that they had committed the robbery and Miles
was not involved. The superior court granted Miles an evidentiary hearing.
              In 2011, prior to hearing testimony, the court was informed that “Bailey
will not be coming from Texas, that he has decided he doesn’t want to testify under any
circumstances.” The court heard from five witnesses including Teamer, Steward, and
Miles. The trial court denied the writ of habeas corpus finding that the evidence did not
undermine the entire prosecution case and did not point unerringly to innocence. The
court did not find Teamer, Steward, and Miles to be credible witnesses, based in part on
their criminal histories.
              In 2012, Miles filed the instant writ petition in this court making the same
claims he had made in the superior court. We issued an order to show cause. In 2013,
and again in 2016, this court appointed a referee. We asked the referee to conduct
evidentiary hearings and to make recommended findings of fact. Several alibi witnesses
testified. Teamer, Steward, and Miles each testified again. Bailey again refused to
testify. The referee found that Miles did not meet the habeas corpus standard for a new

9
  In the intervening years, Miles had filed numerous pro se habeas corpus petitions in
both state and federal courts; however, none of those petitions involved the new evidence
claim at issue here. We therefore reject the People’s contention that Miles is
procedurally barred from seeking habeas corpus relief. (See In re Clark (1993) 5 Cal.4th
750, 767-769; In re Reno (2012) 55 Cal.4th 428, 451.)
                                            12
evidence claim. Notably, the referee observed that, “this is the type of case which
dramatically tests the credibility of California’s criminal justice system.”


The Confessions and Related Testimony From the Habeas Proceedings
Bernard Teamer
              Teamer testified that he robbed Fidelity with Steward and Bailey. Teamer
grew up across the street from Bailey, who was known as “Baby K.O.,” meaning that he
is Teamer’s “little homie” and that he follows after Teamer, who is known as “Little
K.O.” Bailey listened to and trusted Teamer. Teamer knew Steward through Bailey and
knew Steward as “Tiny Wimp.”
              Teamer was familiar with Fidelity because he paid his bills there. He chose
Fidelity because “I was just trying to get some money.” Teamer planned the robbery;
Steward and Bailey were to go into the Fidelity office and Teamer was to wait in the car.
Teamer and Bailey met at Steward’s house the morning of the robbery. Teamer brought
up the idea. At the time of the robbery, Bailey was about six feet tall and kind of stocky;
Steward was also about six feet tall and slim. Bailey had a dark complexion and had rolls
in the back of his neck.
              Teamer had met Miles 10 years earlier in Jamestown prison. After his
arrest, Teamer “play[ed] the role” that he didn’t have anything to do with the robbery.
Teamer thought that because nobody could “put him” at the robbery, he and Miles were
not going to be convicted.


Jason Steward
              Steward testified that he grew up in Compton and was involved with the
Farm Dog Compton Crips. June 29, 1998, was Steward’s birthday, the day he turned
19 years old. Bailey and Teamer came to his home and said they had a “lick,” meaning a

                                             13
robbery. He said that some of his cousins were present and told him he was crazy to do a
robbery on his birthday. On the day of the robbery, Steward was about six feet tall and
weighed between 160 and 165 pounds. He said that Bailey was about the same height,
but Bailey had more weight on him. Steward had not committed any other crimes with
Teamer, but he had with Bailey.
                  Teamer explained to Bailey and Steward that the location was in Fullerton.
Teamer had some kind of dealings with this place before, so he had already scoped it out.
The plan was for Teamer to stay in the car, Bailey and Steward were to go inside and get
the money then “come back out and get in the car and bone out.” Steward recalled that
Teamer had also set up another similar robbery in Norwalk, but Teamer was not present.
Steward was doing a lot of robberies during this timeframe.
                  Steward wore a suit because it helped him get access. When they got to
Fidelity, Teamer backed into the parking space. Steward hid the shotgun in the sleeve of
his suit. Steward got Patlan to open the door by telling him that he had to make a
payment. When Stewart and Bailey returned to the car, the car doors were locked and
Teamer wasn’t there. Steward said they saw Teamer in the auto parts store so they
waved and motioned for him to come out. Steward was 100 percent sure that the doors
were locked.
                  In 2007, Steward met Miles in prison for the first time. His “homie” Jahed
Prince got a message to him that Miles wanted to speak to him and Prince set up the
           10
meeting.        Miles showed Steward a document with the date of the robbery on it.
Steward couldn’t believe that Miles was convicted of the Fullerton robbery because the
date stood out in his mind.




10
     Prince testified at a habeas hearing and corroborated Steward’s testimony.
                                               14
              In 2008, the Innocence Project contacted Steward and he wrote a
declaration. Steward drew a diagram of Fidelity indicating where they parked, the
location of the auto parts store, and the interior of the office indicating the location of the
witnesses. At the time, Steward still feared he could be prosecuted and did not remember
the Innocence Project discussing the statute of limitations with him. In 2011, Steward
was released from parole. He was later arrested and was in custody on an unrelated
crime. Steward spoke to Bailey after he spoke to the Innocence Project to see if Bailey
would “come forward and say his part in it, I say my part.”
              Steward said he was not lying. When asked why he would not lie, he said:
“Because, actually, I ain’t got nothing to gain from lying for him. . . . [¶] Why would I
go down with that? Actually makes no sense to lie.”


Harold Bailey
              On February 5, 2010, Bailey completed a declaration that largely
corroborated the testimony of Teamer and Steward. On June 20, 2013, the Fullerton
detective interviewed Bailey, who was in a Texas prison. Bailey insisted Miles is
innocent. Bailey remembered that he committed a robbery with Steward and Teamer on
Steward’s birthday. At the time, Bailey said he was young and Teamer was his mentor
and he would basically do whatever Teamer asked him to do. Bailey was hanging out at
Steward’s grandma’s house when Teamer approached them about the robbery.
              Teamer drove Bailey and Steward out of Los Angeles. Bailey was
unfamiliar with the area, and did not remember many of the details of the robbery, but he
did remember demanding money. Bailey said that he always had a “meaty neck.” Bailey
said that he was “pissed off” when they got to the car because Teamer wasn’t there.




                                              15
According to Bailey, Steward kept hitting the horn to get Teamer to come out of the auto
               11
parts store.


Guy Miles
                    In 1985, Miles was convicted of possessing marijuana for sales. In 1991,
he was convicted of second degree robbery, shooting into a car, and assault with a deadly
weapon. He spent five years and eight months in prison, two months of which were with
Teamer. Miles said that he saw Teamer every day, but only spoke to him three or four
times.
                    On May 4, 1997, Miles got out of prison and moved to Las Vegas soon
after; he would visit Carson every one or two months. He lied to his parole officer about
where he was living.
                    On June 28, 1998, Miles was going to pick up his son from Carson, where
he was staying with his parents. De Andre called him and asked if he could stay the
summer with him in Las Vegas. On June 29, the day of the robbery, Miles got to Carson
around 2:00 or 3:00 in the morning. His son was ready to go and his suitcase was
packed. He only stayed a few minutes because he wanted to get back before the sun
came up and it got hot. Miles got back to Las Vegas sometime between 7:00 and 8:00
a.m. Miles took a nap when he got back to Las Vegas and then got up and went to see
some friends. Miles took his son with him “because he always want[s] to ride with me.”
As far as the rest of the day, “I just kind of stayed around the house and napped all day.”
                    Miles talked to Teamer several times while they were going to court. Miles
repeatedly asked Teamer if he was involved in the crime, but Teamer kept telling him,




11
     This testimony is at somewhat at odds with the testimony of other witnesses.
                                                 16
“No, I didn’t have nothing to do with it.” The last day Miles saw Teamer was the day the
jury found him guilty.
               About three or four months after the trial, Miles found out through friends
that Teamer and Bailey committed the robbery. In 2007, Miles found out the identity of
the other party involved in the crime, Steward. In prison, another inmate, Roy Dungey,
told Miles there was a guy from Compton that he needed to talk to by the name of “Tiny
Wimp or Wimp.” Miles asked Prince to set up a meeting with Wimp, who turned out to
be Steward. After Miles met with Steward, he contacted his parents and told them to call
the Innocence Project.


                                             III
                                       DISCUSSION
                “The Supreme Court, courts of appeal, superior courts, and their judges
have original jurisdiction in habeas corpus proceedings.” (Cal. Const., art. VI, § 10.)
“The writ of habeas corpus enjoys an extremely important place in the history of this
state and this nation. Often termed the ‘Great Writ,’ it ‘has been justifiably lauded as
“‘the safe-guard and the palladium of our liberties.’”’” (People v. Villa (2009) 45 Cal.4th
1063, 1068.)
               “[A] habeas corpus proceeding is not a trial of guilt or innocence and the
findings of the habeas corpus court do not constitute an acquittal. The scope of a writ of
habeas corpus is broad, but in this case, as in most cases, it is designed to correct an
erroneous conviction. It achieves that purpose by invalidating the conviction and
restoring the defendant to the position she or he would be in if there had been no trial and
conviction.” (In re Cruz (2003) 104 Cal.App.4th 1339, 1346, citing In re Crow (1971) 4
Cal.3d 613, 620; see also In re Hall (1981) 30 Cal.3d 408, 417.) “[A] successful habeas
corpus petition necessarily contemplates and virtually always permits a retrial.

                                             17
[Citations.] The possibility of a retrial is often assumed without discussion.” (In re Cruz,
supra, 104 Cal.App.4th at p. 1347.)
               In this opinion we will address: 1) whether the newly amended statute
applies to Miles’ pending petition; 2) whether the confessions qualify as new evidence;
                                                                                             12
and 3) whether the confessions meet the necessary grounds for granting habeas relief.


A. Whether the Newly Amended Statute Applies to Miles’ Pending Petition
               Generally, both civil and criminal statutes do not apply retroactively to
existing causes of action. (See Code Civ. Proc., § 3; § 3 [“No part of [the Penal Code] is
retroactive, unless expressly so declared”].) “‘A retrospective law is one that relates back
to a previous transaction and gives it some different legal effect from that which it had
under the law when it occurred.’” (Ware v. Heller (1944) 63 Cal.App.2d 817, 821.)
For instance, in criminal law, a statute “is retrospective if it defines past conduct as a
crime, increases the punishment for such conduct, or eliminates a defense to a criminal
charge based on such conduct.” (Tapia v. Superior Court (1991) 53 Cal.3d 282, 288
(Tapia).) Such substantive changes would also violate the constitutional protection
against ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.)
               However, if a change in the law relates to “modes of procedure, rather than
substance, the law applies to existing causes of action and defenses without having
retrospective effect.” (Sierra Pacific Industries v. Workers’ Comp. Appeals Bd. (2006)
140 Cal.App.4th 1498, 1506; Tapia, supra, 53 Cal.3d 282 [statutory change to jury
selection process was procedural and applied prospectively to pending criminal trials].)


12
  In his briefing, Miles argued that “advancements in the field of stranger eyewitness
identification,” which includes cross-racial identification, also qualifies as “‘new
evidence.’” Because we are granting the writ on the basis of the confessions of Teamer,
Miles, and Bailey, we need not address this alternative claim.
                                               18
Further, “changes in a statute regulating the burden of proof are to be applied as changes
in procedure only.” (Estate of Giordano (1948) 85 Cal.App.2d 588, 592.)
              Miles first filed his petition for a writ of habeas corpus in this court, in part,
based on a claim of new evidence. At the time that Miles filed his petition, there was no
codified standard of proof for habeas corpus relief based on a claim of new evidence.
The standard for such claims was established by the California Supreme Court under
principles dating back to 1947. A petitioner needed to present evidence that points
“unerringly” to innocence and “completely undermines the entire structure of the case
presented by the prosecution at the time of the conviction.” (In re Lindley (1947) 29
Cal.2d 709, 724.)
              Then, during the pendency of these proceedings, the Legislature changed
the burden of proof. (§ 1473, subd. (b)(3)(A).) Effective January 1, 2017, the burden of
proof in a new evidence habeas claim is significantly lower, but this is merely a change in
procedure. Further, the statutory change is only being applied in a prospective manner
because at the time the new law became effective we had not yet made a decision.
              Thus, we will apply the recently amended statute to the resolution of
Miles’ pending habeas corpus petition (as the Attorney General concedes we must).


B. Whether the Confessions Qualify as “New Evidence”
              The definition of “new evidence” under the newly enacted habeas statute is
“evidence that has been discovered after trial, that could not have been discovered prior
to trial by the exercise of due diligence, and is admissible and not merely cumulative,
corroborative, collateral, or impeaching.” (§ 1473, subd. (b)(3)(B).) The new statutory
habeas standard for new evidence is similar to the “new evidence” standard in a motion
for new trial under California law. (§ 1181.)



                                              19
              “When a verdict has been rendered or a finding made against the defendant,
the court may . . . grant a new trial, in the following cases . . . : [¶] . . . [¶] [w]hen new
evidence is discovered material to the defendant, and which he could not, with reasonable
diligence, have discovered and produced at the trial.” (§ 1181, subd. (8).) “A defendant
on a motion for a new trial based on newly discovered evidence must show inter alia that
the evidence is in fact newly discovered; that it is not merely cumulative to other
evidence bearing on the factual issue; that it must be such as to render a different result
probable on a retrial; and that the moving party could not, with reasonable diligence, have
discovered and produced the evidence at trial.” (People v. McDaniel (1976) 16 Cal.3d
156, 178.)
              The new statutory habeas standard for new evidence is also comparable to
the “newly discovered evidence” standard in a motion for new trial under federal law.
(Fed. Rules Crim. Proc., rule 33.) “In order to prevail on a Rule 33 motion based on
newly discovered evidence, the movant must show that: (1) the evidence was unknown
or unavailable to the defendant at the time of trial; (2) failure to learn of the evidence was
not due to lack of diligence by the defendant; (3) the evidence is material, and not merely
cumulative or impeaching; and (4) it will probably result in an acquittal upon retrial of
defendant.” (U.S. v. Colon-Munoz (1st Cir. 2003) 318 F.3d 348, 358.)
              1. The evidence could not have been discovered prior to trial through the
exercise of due diligence.
              The former habeas standard for new evidence claims required that a habeas
petitioner act with “‘reasonable diligence’” in presenting his or her claim. (See In re
Hardy (2007) 41 Cal.4th 977, 1016 [the petitioner’s evidence was not “‘newly
discovered’” because it was reasonably available to him prior to trial “had [he] conducted
a reasonably thorough pretrial investigation”].) The terms “‘reasonable diligence’” and



                                               20
“due diligence” are essentially interchangeable. (See People v. Cromer (2001) 24 Cal.4th
889, 892; see also People v. Herrera (2010) 49 Cal.4th 613, 622.)
              “What constitutes due diligence to secure the presence of a witness depends
upon the facts of the individual case. [Citation.] The term is incapable of a mechanical
definition. It has been said that the word ‘diligence’ connotes persevering application,
untiring efforts in good earnest, efforts of a substantial character. [Citation.] The totality
of efforts of the proponent to achieve presence of the witness must be considered by the
court. Prior decisions have taken into consideration not only the character of the
proponent’s affirmative efforts but such matters as whether he reasonably believed prior
to trial that the witness would appear willingly . . . , whether the search was timely begun,
and whether the witness would have been produced if reasonable diligence had been
exercised [citation].” (People v. Linder (1971) 5 Cal.3d 342, 346-347.)
              Here, Miles could not reasonably have been expected to “discover” the
confession of Teamer prior to trial because Teamer did not plead guilty and was a
codefendant in the same trial. Moreover, if Miles’ testimony is to be believed, at least on
this point, Teamer had continuously represented to Miles during the trial that he had no
involvement in the robbery. As to Steward, Miles could not have reasonably been
expected to “discover” his involvement in the robbery because at the time of the trial
Steward had not been identified as a suspect. And although the Fullerton detective
suspected from the beginning that Bailey was involved in the robbery (and still does),
none of the eyewitnesses who saw his photo in the six-pack lineup positively identified
him as a suspect. Thus, based on the facts of this case, we find that the confessions could
not have been discovered prior to trial by the exercise of due diligence.
              2. The confessions are admissible.
               “Except as otherwise provided by statute, all relevant evidence is
admissible.” (Evid. Code, § 351.) “‘Relevant evidence’ means evidence . . . having any

                                              21
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) A habeas proceeding is subject to the
California Rules of Evidence. (In re Fields (1990) 51 Cal.3d 1063, 1070.) However, a
writ of habeas corpus serves a “traditional function as a flexible procedural remedy of last
resort to prevent severe and manifest injustice.” (In re Clark (1993) 5 Cal.4th 750, 803,
italics added (conc. & dis. opn. of Kennard, J.).) Habeas corpus “is not now and never
has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand
purpose—the protection of individuals against erosion of their right to be free from
wrongful restraints upon their liberty.” (Jones v. Cunningham (1963) 371 U.S. 236, 243.)
              Under the comparable federal standard for “newly discovered evidence” in
a motion for a new trial, the question is whether the evidence “would be admissible” at
the new trial. (See United States v. Byrne (E.D. Pa. 1978) 451 F.Supp. 109, 112 [“To the
extent that this ‘newly discovered evidence’ in some way relates to an understanding
entered into between a Government agent and the witness, it would be admissible”];
United States v. Stromberg (S.D.N.Y. 1959) 179 F.Supp. 278, 279-280 [“Furthermore,
the polygraph test report could not possibly produce a different result at a new trial, for
clearly it would not be admissible”].)
              Here, there is no question that the confessions of Teamer and Steward are
admissible because in addition to their sworn declarations, both of them testified at the
habeas hearings and subjected themselves to the crucible of cross-examination. And
presumably both of them are willing to testify at a new trial if it should occur. The
admissibility of Bailey’s confession is a different question because at the present time, it
is strictly in the form of a declaration made out of court, it is being offered for its truth,
and it is therefore hearsay. (Evid. Code, § 1200, subd. (a).)
              Ordinarily, “an out-of-court declaration is hearsay, and unless subject to
some exception permitting it to be admitted, should be excluded upon timely and proper

                                               22
objection.” (In re Fields, supra, 51 Cal.3d at p. 1070.) “Evidence of a statement by a
declarant having sufficient knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the statement, when made,
was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected
him to the risk of civil or criminal liability . . . that a reasonable man in his position
would not have made the statement unless he believed it to be true.” (Evid. Code,
§ 1230.) Generally, unavailability is found when a court is unable to compel the witness
to appear in court. (Evid. Code, § 240, subd. (a)(3).) It is unclear whether a defendant’s
right to compulsory process that attaches at trial in a criminal proceeding also applies to a
habeas corpus evidentiary hearing. (In re Williams (1994) 7 Cal.4th 572, 603.)
              The “‘focus’” of the hearsay exception for declarations against interest is

“‘the basic trustworthiness of the declaration’”; the determination “whether
trustworthiness is present requires the court to apply to the peculiar facts of the individual
case a broad and deep acquaintance with the ways human beings actually conduct
themselves in the circumstances material under the exception. Such an endeavor allows,
in fact demands, the exercise of discretion.” (People v. Gordon (1990) 50 Cal.3d 1223,
1251, disapproved on another ground by People v. Edwards (1991) 54 Cal.3d 787, 835.)
              Here, on February 5, 2010, Bailey admitted to committing the robbery on
June 29, 1998. His statement was made in a handwritten declaration, which was attached
to Miles’ petition. Later, on June 20, 2013, detectives from the Orange County District
Attorney’s office interviewed Bailey in a Texas prison. Bailey confirmed that he had
written the declaration, but he has refused to testify at the habeas corpus hearings.
Ordinarily, Bailey’s unavailability might allow his statement to be admitted under the
hearsay exception for statements against penal interest. However, the statute of
limitations has long passed; therefore, Bailey is not subjecting himself to criminal



                                               23
liability by admitting to a crime. Further, the superior court has never formally found
Bailey to be “unavailable” as a witness.
              Nonetheless, our primary consideration is whether Bailey’s confession is
“trustworthy” or not. We are also mindful that in the context of a habeas corpus petition,
we can more flexibly apply evidentiary rules to achieve the interest of justice. While
Bailey may have “nothing to lose” by confessing to a crime after the statute of limitations
has run, he also has apparently absolutely nothing to gain. Further, Bailey was in a Texas
prison at the time he made his statement, which may have subjected him to negative
penal consequences, particularly as to his parole eligibility date. Bailey’s statements are
consistent with those of Teamer and Steward, as well as other corroborative witnesses
presented during the course of the habeas hearings. Moreover, Bailey may be out of
prison and willing to testify by the time a new trial occurs; thus, his confession may be
admissible in a new trial.
               Under the unique circumstances of this case, we consider the confession of
Bailey, as well as Teamer and Steward, to pass the threshold of admissibility for the
limited purpose of this habeas proceeding. However, should there be a new trial, our
ruling regarding the admissibility of Bailey’s declaration is not binding on the trial court.
              3. The confessions are not merely cumulative, corroborative, collateral, or
impeaching.
              The “merely cumulative, corroborative, collateral, or impeaching” element
of the new statutory definition of “new evidence” for habeas corpus purposes is similar to
the considerations for excluding evidence under Evidence Code section 352. “Cross-
examination is subject to restriction under Evidence Code section 352 if it is cumulative
or if it constitutes impeachment on collateral issues.” (People v. Greenberger (1997) 58
Cal.App.4th 298, 352.) “Because the prosecution intended to offer other evidence which
would tend to prove the same facts, [the witness’] testimony was cumulative. But trial

                                             24
courts are not required to exclude all cumulative evidence and if evidence has substantial
relevance to prove material facts which are hotly contested and central to the case, it is
not ‘merely cumulative.’” (People v. Lang (1989) 49 Cal.3d 991, 1016, italics added,
disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
              A “trial court has discretion to exclude impeachment evidence . . . if it is
collateral, cumulative, confusing, or misleading.” (People v. Price (1991) 1 Cal.4th 324,
412.) In this context, “impeach” means that the new evidence would tend to discredit the
testimony of a prosecution witness who testified a trial. (United States v. Atkinson
(E.D.N.C. 1977) 429 F.Supp. 880, 885 [“Newly discovered evidence that merely goes to
impeach the credibility of a prosecution witness does not ordinarily warrant the granting
of a new trial, [citations]; but in some circumstances the newly discovered evidence,
although impeaching[,] is sufficiently important in the ascertainment of the truth and in
the interests of justice that a new trial should be ordered”].)
              Here, there is no dispute that three men committed an armed robbery at the
Fidelity office in Fullerton on June 29, 1998. The only contested issue at Miles’ and
Teamer’s consolidated jury trial was the identity of the robbers. Therefore, any
conflicting testimony regarding the identity of the robbers is not merely “collateral.”
              It is true that the new confessions are “cumulative” and “corroborative” in a
sense because they tend to bolster Miles’ alibi defense at trial; specifically, that he was in
Las Vegas at the time of the robbery. The confessions are also “impeaching” in a sense
because they tend to discredit the positive identifications of Miles as Suspect Two by the
victims of the robbery, Patlan and Gomez. But under circumstances where an innocent
man may be languishing in prison, it is apparent that the confessions on the whole are
“sufficiently important in the ascertainment of truth” that they are not “merely”
cumulative, corroborative, or impeaching. (§ 1473, subd. (b)(3)(B).)



                                              25
C. Whether the Confessions Meet the Necessary Grounds for Relief
              Again, when Miles first filed his petition, in order to grant habeas relief, we
needed to find that the “new evidence” completely undermined the prosecution’s case
and pointed unerringly to innocence. (In re Johnson, supra, 18 Cal.4th at p. 462.) Now,
in order to grant relief, we need to find that the confessions are “credible, material,
presented without substantial delay, and of such decisive force and value that it would
have more likely than not changed the outcome at trial.” (§ 1473, subd. (b)(3)(A).)
We find that the confessions meet the necessary grounds for relief.
              1. The confessions, on the whole, are credible.
              Generally, a “court or jury may consider in determining the credibility of a
witness any matter that has any tendency in reason to prove or disprove the truthfulness
of his testimony at the hearing.” (Evid. Code, § 780.) In determining whether the
confessions of Teamer, Steward, and Bailey are credible, we are generally guided by the
same factors that a jury is instructed to consider. “In deciding whether testimony is true
and accurate, use your common sense and experience.” (CALCRIM No. 226.)
              In evaluating a witness’s testimony, jurors are instructed to “consider
anything that reasonably tends to prove or disprove the truth or accuracy of that
testimony.” (CALCRIM No. 226.) “Do not automatically reject testimony just because
of inconsistencies or conflicts. Consider whether the differences are important or not.
People sometimes honestly forget things or make mistakes about what they remember.
Also, two people may witness the same event yet see or hear it differently.” (CALCRIM
No. 226.)
              “Because appellate courts are ill-suited to conduct evidentiary hearings, it is
customary for appellate courts to appoint a referee to take evidence and make
recommendations as to the resolution of disputed factual issues.” (People v. Romero
(1994) 8 Cal.4th 728, 740.) “The central reason for referring a habeas corpus claim for

                                              26
an evidentiary hearing is to obtain credibility determinations [citation]; consequently, we
give special deference to the referee on factual questions ‘requiring resolution of
testimonial conflicts and assessment of witnesses’ credibility, because the referee has the
opportunity to observe the witnesses’ demeanor and manner of testifying’ [citation].”
(In re Thomas (2006) 37 Cal.4th 1249, 1256.) However, an appellate court can reach a
different conclusion than the referee regarding factual findings based “on an independent
examination of the evidence produced at the hearing.” (In re Hitchings (1993) 6 Cal.4th
97, 109; People v. Ledesma (1987) 43 Cal.3d 171, 219.)
              Here, Miles filed a verified habeas corpus petition and attached affidavits
from Teamer, Steward, and Bailey. They each admitted to their role in the robbery and
claimed that Miles had nothing to do with it. Based on this, we found that there was “a
reasonable likelihood that [Miles] may be entitled to relief.” (Cal. Rules of Court, rule
8.386(f)(1).) We appointed a referee to conduct evidentiary hearings and asked him to
make credibility determinations. The referee conducted evidentiary hearings and
eventually heard testimony from over 20 witnesses, including many of the same alibi
witnesses that had testified at trial. The referee made “findings of fact” based on the
questions we had put to him. Each answer was supported by extensive analysis.
              As to Teamer, Steward, and Miles, the referee concluded that they were
either not “inherently” or “compellingly credible.” For instance, as to Steward, the
referee stated that: “While his recent testimony concerning the robbery that resulted in
[Miles’] conviction could be true, the referee cannot conclude that Mr. Steward has any
inherent credibility.” (Italics added.) In his final report, the referee concluded: “[T]he
referee believes that, based on all of the testimony he has heard and all of the evidence
that he has reviewed, [Miles] ‘could in fact be innocent of the robbery at Fidelity
Financial Services on June 29, 1998.’ Likewise, based on all of the testimony he has
heard and the evidence he has reviewed, the referee believes that the inculpatory

                                             27
eyewitness identifications that resulted in [Miles’] conviction could be honest and
accurate. If that is the case, then [Miles] is guilty of that robbery.”
              We take note that the referee was not definitive in the language that he
chose to use. The referee did not explicitly tell us that he found the confessing witnesses
to be “credible.” Nor did the referee explicitly tell us that he found them to be “not
credible.” But we have no qualms with the referee’s choice of language; indeed, we are
of the same mind. We recognize that unlike the ultimate decision we are required to
make in this proceeding—whether to grant Miles a writ of habeas corpus or not—
credibility is seldom a binary choice. We suspect that this is the same tough
decisionmaking process that faces many jurors in criminal trials. That is, while jurors
must ultimately make a final decision—was there proof beyond a reasonable doubt or
not—they must often first evaluate the credibility of witnesses, each of whom may have
various gradations of credibility. In that spirit, we briefly share some of our
“deliberations.”
              As to Teamer, we recognize that he was, and may still be, an active member
of the same criminal street gang as Miles. Therefore, Teamer may conceivably have
some motive to lie on Miles’ behalf. Teamer also has four prior convictions, including
convictions for burglary and robbery. But Teamer apparently no longer lives in the same
Carson neighborhood that he used to; he is married, has eight children, and now operates
a trucking business in Lancaster, California. Further, Teamer testified in two separate
habeas proceedings and his testimony has been consistent. Teamer’s testimony is also
remarkably consistent with the statements of Steward, Bailey and Miles.
              As to Steward, he has some of the same credibility issues as Teamer. He is
a longtime gang member with a violent criminal history. In fact, Steward is currently
serving a prison sentence of 171 years to life as a result of three second degree murder
convictions due to driving under the influence. But there is no evidence that Steward had

                                              28
any motive to aid Miles. Steward is not a member of the same gang as Miles, there is a
large age disparity between Steward and Miles, and there is no evidence that they were
ever friends, or that they had ever even met each other prior to meeting in prison years
after the robbery. Further, 15 years after the robbery, Gomez and Patlan tentatively
identified Steward as Accomplice One, the thin robber.
              But probably what is most corroborative of Steward’s credibility in our
evaluation is the way his statements came to light. At one of the habeas hearings, Rory
Dungey testified that he met Steward in prison in 2003. According to Dungey, Steward
had told him that he had committed a robbery with Teamer and Bailey, and that Bailey
had fled to Texas. Then, in 2007, apparently by coincidence, Dungey met Miles in a
different prison. Miles told Dungey that he was wrongfully convicted and he thought that
Teamer and Bailey had done the robbery with a third man whose identity he didn’t know.
It was then that Dungey told Miles about Steward and what Steward had told him years
earlier. A meeting between Steward and Miles was then arranged by another person in
prison, Prince. Prince had met Miles in prison and he thought Miles “was like a weirdo
because he was always telling people he was innocent.” According to Prince, when he
asked Steward about the robbery, Steward said, “Yeah, that was me. I heard it was a guy
who got locked up from [their] neighborhood that had nothing to do with it, but I don’t
know his name. I don’t know him.”
              If we were to assume that Steward is lying on Miles’ behalf, it would make
absolutely no sense to involve two other people (Dungey and Prince) in the fabricated
story. In short, the testimony of Steward simply has the “ring of truth” about it. And the
testimony of Dungey, Prince, Teamer, and Miles, as well as Bailey’s declaration, is fully
corroborative of Steward’s testimony.
              As to Bailey, he has the same general credibility issues as Teamer and
Steward. That is, he is a long-time criminal and is in the same gang as Miles. Further, he

                                            29
has not subjected himself to cross-examination. But Bailey is also admitting to a crime
when there is no apparent motive for him to do so. Further, he was seen with Teamer
days after the robbery and he has always been a suspect, at least according to the
Fullerton detective, the person most familiar with the investigation from the beginning.
              And as to all of the defense witnesses, the prosecution has never presented
any evidence demonstrating any form of collusion among them. Indeed, the testimony of
Teamer, Steward, and Bailey differs somewhat. But we find those minor discrepancies
consistent with the instructions the jury is given regarding the credibility of witnesses:
“Do not automatically reject testimony just because of inconsistencies or conflicts.
Consider whether the differences are important or not. People sometimes honestly forget
things or make mistakes about what they remember.” (CALCRIM No. 226.) In sum,
given the totality of circumstances, we find the confessions of Teamer, Steward, and
Bailey sufficiently credible to warrant habeas relief.
              2. The confessions are material and were presented without substantial
delay.
              The phrase “material evidence” is defined as: “That quality of evidence
which tends to influence the trier of fact because of its logical connection with the issue.
Evidence which has an effective influence or bearing on question in issue.” (Black’s
Law Dictionary (6th ed. 1990) p. 976, col. 2.) “[A] matter is ‘collateral’ if it has no
logical bearing on any material, disputed issue.” (People v. Contreras (2013) 58 Cal.4th
123, 152, italics added.) Here, we have already determined that the confessions are not
merely “collateral.” Thus, we have necessarily determined that the confessions are also
“material.”
              As to timeliness, it has long been a requirement that all habeas petitions
must be timely filed without “substantial delay.” (In re Robbins (1998) 18 Cal.4th 770,
778.) “Substantial delay is measured from the time the petitioner or his or her counsel

                                             30
knew, or reasonably should have known, of the information offered in support of the
claim and the legal basis for the claim. A petitioner must allege, with specificity, facts
showing when information offered in support of the claim was obtained, and that the
information neither was known, nor reasonably should have been known, at any earlier
time.” (Id. at p. 780.)
              Here, Miles apparently first contacted attorneys from the California
Innocence Project in 2002. Since that time, the Innocence Project has documented its
attempts to develop evidence in support of Miles’ habeas corpus petition. In 2007, Miles
first became aware of and spoke to Steward. But it was not until 2010, that Teamer and
Bailey agreed to provide declarations. And after an unsuccessful attempt in the superior
court, Miles then filed a habeas corpus petition in this court in 2012. Based on the
reasonable delays in obtaining evidence in support of his claims, and the delays inherent
in postconviction proceedings, it appears to this court that Miles presented the
confessions without substantial delay.
              3. The confessions more likely than not would have changed the outcome
at trial.
              The standard of “more likely than not” is close to, but does not have the
same meaning as the familiar prejudice standard appellate courts use when determining
whether state law error affected the outcome of a trial. (See People v. Watson (1956) 46
Cal.2d 818, 836-837; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918
[“‘probability’ for purposes of determining whether state law error affected the trial
outcome does not mean more likely than not, but merely a reasonable chance, more than
an abstract possibility”].) Nor does “more likely than not” have the same meaning as the
prejudice prong in an ineffective assistance of counsel claim. (See Strickland v.
Washington (1984) 466 U.S. 668, 693-694; In re Cordero (1988) 46 Cal.3d 161, 180 [a
“reasonable probability” is not a showing that “‘counsel’s conduct more likely than not

                                             31
altered the outcome in the case,’” but simply “‘a probability sufficient to undermine
confidence in the outcome’”].)
              Rather, the phrase “more likely than not” has the same meaning as the
phrase “‘preponderance of the evidence,’” the familiar burden of proof in civil
proceedings. (See Beck Development Co. v. Southern Pacific Transportation Co. (1996)
44 Cal.App.4th 1160, 1205.) “In a civil case the party with the burden of proof must
convince the trier of fact that its version of a fact is more likely than not the true version.
Stated another way, it requires the burdened party ‘to convince the trier of fact that the
existence of a particular fact is more probable than its nonexistence—a degree of proof
usually described as proof by a preponderance of the evidence.’” (Ibid.) “Proof by a
preponderance of the evidence is a different burden of proof from proof beyond a
reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude
that it is more likely than not that the fact is true.” (CALCRIM No. 1191.)
              Further, in this context, the probability of a “changed outcome” includes
not only the probability of an acquittal, but also that the confessions “more likely than
not” would have resulted in a deadlocked or a hung jury. (See People v. Mason (2013)
218 Cal.App.4th 818, 826 [“The error is not harmless because, even if a properly
instructed jury would not have voted to acquit [defendant], the views of some jurors may
have been swayed resulting in a hung jury. That is a result more favorable to
[defendant]]”; see also People v. Bowers (2001) 87 Cal.App.4th 722, 735-736 [the court
found prejudice where “it is reasonably probable the case would have ended in a mistrial;
a more favorable result for defendant than conviction”].)
              In evaluating whether it “is more likely than not” that the confessions
would have changed the outcome of the trial, we consider the overall “closeness” of the
case. (See People v. Newson (1951) 37 Cal.2d 34, 46 [“When the case against a
defendant is a close one, an error which otherwise would not be prejudicial may justify a

                                              32
new trial”].) A case will be considered close, for example, where it turns primarily on the
credibility of witnesses. (People v. St. Andrew (1980) 101 Cal.App.3d 450, 465 [“The
case is a close one, turning primarily upon the respective credibility of the two principal
witnesses”].) An additional factor to consider is where the evidence is sharply
conflicting. (People v. Hadley (1948) 84 Cal.App.2d 687, 693 [“It is only ‘“in a close
case where the evidence is sharply conflicting, substantial, and serious errors vital to
defendant that may have resulted in a miscarriage of justice must be regarded as
prejudicial and grounds for reversal”’”].)
              Here, this was undoubtedly a close case in which no forensic or
photographic evidence linked Miles to the crime scene. The prosecution’s case, at least
as to Miles, turned entirely on the testimony of two eyewitnesses, Patlan and Gomez.
While those witnesses were confident in their in-court identifications of Miles, the jury
had also heard evidence regarding the difficulties in eyewitness identifications, including
cross-racial identifications. On the other hand, the defense evidence stood in sharp
conflict to the prosecution’s case and put Miles in Las Vegas on the day of the robbery.
Indeed, the jurors deliberated for five days and on the third day they had asked for
clarification as to when a jury is considered a “hung jury.” Although this information
concerning the jury’s deliberations is not conclusive, it does indicate that the jury may
have been closely divided on the question of Miles’ identity as Accomplice Two.
              Stated in a summary fashion, we restate the following particular items of
evidence to support our probability analysis (some points are necessarily duplicative of
our credibility determinations):
             Teamer admitted his role in the robbery and identified Steward as
       Accomplice One and Bailey as Accomplice Two. Over the course of two habeas
       hearings, which were conducted three years apart from each other and over a
       decade after the robbery, Teamer steadfastly testified that Miles was not involved

                                             33
    despite withering cross-examination. While Teamer had nothing to lose by
    claiming Miles was not involved, it was not shown that Teamer had anything to
    gain.
           Steward admitted his role in the robbery as Accomplice One and said that
    he committed the crime with Teamer (Little K.O.) and Bailey (Baby K.O.).
    Steward remembered that day specifically because it was his 19th birthday.
    Steward was not clear on several details of the robbery, but neither was Teamer,
    who we know for sure was present. Steward also steadfastly testified that Miles
    was not involved despite withering cross-examination during the course of two
    habeas hearings. While Steward had nothing to lose by admitting his involvement
    in the robbery (due to the statute of limitations), he also appears to have absolutely
    nothing to gain. Further, years later, Patlan and Gomez tentatively identified
    Steward as Accomplice One.
           Bailey admitted his role in the robbery in a declaration. His account was
    largely consistent with Teamer and Steward. In an interview conducted by the
    Fullerton detective in a Texas prison, Bailey repeatedly and emphatically stated
    that Miles was not involved. Bailey was also not clear on all of the details of the
    robbery, but neither were Teamer and Steward. The detective observed Bailey
    with Teamer days after the robbery. Teamer was apparently Bailey’s mentor in
    the gang.
           Several eyewitnesses testified that Miles was in Las Vegas on the day of
    the robbery. Miles was arrested in Las Vegas. The testimony of Miles’ mother,
    father, and son, regarding the date of his arrival in Carson and his subsequent
    phone calls to Las Vegas were corroborated by flight and telephone records.
    However, the jury did not get to consider those records because they were not
    admitted into evidence, and the prosecutor argued the lack of “hard evidence”

                                          34
       during her closing argument while questioning the validity of Miles’ alibi
       witnesses. Further, it would not make sense to fabricate such a complex story.
             While Miles is five feet, nine inches tall, and fits the initial height
       description of Accomplice Two, Gomez later told the detective that she thought
       the two robbers were close to the same height. Further, it appears likely that
       Gomez and Patlan may have had some effect on each other’s descriptions, at least
       to some extent. For instance, when the 911 operator asked Gomez the color of the
       suit that Accomplice One was wearing, Gomez said to Patlan, “Was it a brown
       color . . . , the suit? What color suit was . . . green? A dark green.”
             The witnesses described all of the robbers as being in their 20’s. On the
       date of the robbery, Teamer was 25 years old, Steward was 19 years old, and
       Bailey was 20 years old. Miles was 32 years old on the day of the robbery, which
       also tends to corroborate the habeas testimony that Miles was never a close
       confidant of either Teamer, Steward, or Bailey.
             Miles’ testimony about how he learned of the identity of Steward was very
       detailed and identified multiple witnesses, among them: Dungey, Prince, and
       Steward. If Miles and Steward deliberately fabricated this story, it would defy
       logic to name multiple other witnesses. Further, the corroborative testimony was
       particularly compelling because of each witness’ level of detail and the fact that
       Dungey and Prince had apparently nothing whatsoever to gain by testifying.
              In sum, we find it more likely than not that the confessions of Teamer,
Steward, and Bailey would have changed the outcome of the trial; that is, either an
acquittal or a deadlocked jury.




                                              35
                                             IV
                                      DISPOSITION
              Miles’ petition for a writ of habeas corpus is granted. His convictions are
vacated. The prosecution may elect to retry Miles within the statutory timeframe.
                                                   13
Otherwise, Miles is to be released from custody.



                                                   MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




13
  To clarify, we are granting the writ of habeas corpus solely on the basis of the recently
enacted statutory “new evidence” standard (§ 1473, subd. (b)(3)(A)); we are not granting
the writ on the basis of Miles’ free standing “actual innocence” claim (In re Hardy,
supra, 41 Cal.4th at p. 1016); nor are we finding Miles to be “factually innocent.”
(§ 1485.55, subd. (d).) Additionally, we are denying Miles’ request to be immediately
released on his own recognizance. (§ 1506.) However, we are not forestalling the
possibility of the superior court granting such a request when the matter is returned to its
jurisdiction.
                                             36
Moore, J., Concurring.
              I write separately because I believe there were significant problems with the
eyewitness identifications, including suggestive photographic lineups and improper
prosecutorial tactics, which resulted in Miles’ conviction. The majority opinion does not
find Miles to be “factually innocent.” But there is a very strong likelihood that an
innocent man has spent almost 19 years in custody for a crime he did not commit.
              There are several procedural safeguards that exist to protect against the
misidentification of suspects, such as the double-blind administration of photographic
lineups. But many of these safeguards were not followed in this case. Therefore, in
addition to his “new evidence” claim, I am of the opinion that there was sufficient proof
to support Miles’ alternative claim of “false” eyewitness identification evidence.
              It should be noted that this investigation took place many years ago when
the study of eyewitness identification evidence was in its early stages. As the field
progresses, we are learning just how vital photographic lineup safeguards are to fair
prosecutions. There is nothing in this record that indicates that the investigating detective
acted with improper motives. In fact, at one point the detective stated that: “the last
thing I’ve ever wanted to do as a law enforcement officer is to put an innocent man in
jail.” I take him at his word.


The Test for False Evidence
              “A writ of habeas corpus may be prosecuted for, but not limited to, the
following reasons: (1) False evidence that is substantially material or probative on the
issue of guilt or punishment was introduced against a person at a hearing or trial relating
to his or her incarceration.” (§ 1473, subd. (b), italics added.) False evidence claims may
be pursued on the grounds of false eyewitness identifications. (See, e.g., In re Bell


                                             37
(2007) 42 Cal.4th 630; In re Roberts (2003) 29 Cal.4th 726; In re Hall (1981) 30 Cal.3d
408.)
              The term “false” evidence should not be understood to somehow mean
“falsified” evidence or “fabricated” evidence. (See In re Hall, supra, 30 Cal.3d at p. 424
[issuance of writ of habeas corpus was justified on ground that identification testimony
“was false, albeit unintentionally so”].) A habeas petitioner is not required to show that
false evidence was the result of perjury, or that prosecution or its agents were aware of
the false nature of the evidence. (§ 1473, subd. (c).) Various dictionaries define the word
“false” in different ways, but in the context of a habeas corpus claim, “false” evidence
most closely means that the evidence was “not genuine.” (Webster’s 11th Collegiate
Dict. (2007) p. 451, col. 1; compare People v. Bamberg (2009) 175 Cal.App.4th 618,
627.)
              In order to evaluate a false evidence claim in the context of a habeas corpus
petition, courts engage in a two-step analysis. First, a habeas petitioner seeking relief
must show by a preponderance of the evidence “that false evidence was offered against
him at trial.” (In re Richards (2012) 55 Cal.4th 948, 976.) Second, courts then evaluate
whether that “false evidence was material.” (In re Richards (2016) 63 Cal.4th 291, 312
(Richards).) That is, courts look at the false evidence and ask whether it was of such
significance ‘“that with reasonable probability it could have affected the outcome.’”
(§ 1473, subd. (b); In re Sassounian (1995) 9 Cal.4th 535, 546.)


The Pretrial Photo Identifications of Miles Were Unduly Suggestive
              The United States Supreme Court has held that a conviction must be
reversed, because of the lack of due process, where false eyewitness identification at trial
followed a pretrial photo identification procedure that was “so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable misidentification.” (Simmons

                                              2
v. United States (1968) 390 U.S. 377, 384; People v. Thomas (2012) 54 Cal.4th 908,
931.) An identification procedure violates due process where it is conducive to mistaken
identification. (Stovall v. Denno (1967) 388 U.S. 293, 301-302.)
              “‘[I]t is a matter of common experience that, once a witness has picked out
the accused at the line-up, he is not likely to go back on his word later on, so that in
practice the issue of identity may (in the absence of other relevant evidence) for all
practical purposes be determined there and then, before the trial.’” (United States v.
Wade (1967) 388 U.S. 218, 229, fn. 8, citing Williams and Hammelmann, Identification
Practices, Part I (1963) Crim. L. Rev. 479, 482.) “‘“In order to determine whether the
admission of identification evidence violates a defendant’s right to due process of law,
we consider (1) whether the identification procedure was unduly suggestive, and
unnecessary, if so, (2) whether the [in-court] identification itself was nevertheless reliable
under the totality of the circumstances . . . .”’” (People v. Thomas, supra, 54 Cal.4th at
p. 930.)
              Eyewitness misidentification is widely acknowledged as the “greatest cause
of wrongful convictions.” (State v. Henderson (2011) 208 N.J. 208, 231 (Henderson).)
In Henderson, the New Jersey Supreme Court conducted an extensive survey of scientific
studies of eyewitness identifications and memory. The court initiated and largely
adopted a Special Master’s report that evaluated “scientific and other evidence about
eyewitness identifications. The Special Master presided over a hearing that probed
testimony by seven experts and produced more than 2,000 pages of transcripts along with
hundreds of scientific studies.” (Id. at pp. 217-218.)
              There are several “estimator variables” or factors peculiar to the
circumstances of the crime that can affect the reliability of witness identifications.
(Henderson, supra, 208 N.J. at pp. 261-273.) These types of factors have long been
taken into consideration in California courts and include such things as the witness’s

                                              3
degree of stress, the ability of the witness to observe the suspect, and the problems
involved in cross-racial identifications. (Ibid., see also CALCRIM No. 315 [factors a
jury can consider when evaluating eyewitness testimony].) Indeed, the jury in Miles’
trial heard competing expert testimony regarding these factors and was instructed to
consider the impact of those factors when evaluating the eyewitness evidence.
              But more importantly, when it comes to due process considerations, there
are “system variables,” which can also greatly affect the reliability of eyewitness
identifications. These are factors that are entirely within the control of law enforcement,
such as how lineups are constructed and how identification procedures are conducted.
(Henderson, supra, 208 N.J. at pp. 248-261.) In this case, Miles’ jury was not instructed
regarding these “system variables,” nor did the jury hear any expert testimony on this
subject. That testimony only came from an expert who testified in the first habeas
proceeding and the prosecution did not rebut that testimony.
              The manner in which a photo lineup is constructed can affect the reliability
of a witness’ identification. (See People v. Johnson (2010) 183 Cal.App.4th 253, 272;
People v. Cook (2007) 40 Cal.4th 1334, 1355.) “Properly constructed lineups test a
witness’ memory and decrease the chance that a witness is simply guessing.”
(Henderson, supra, 208 N.J. at p. 251.) In Henderson, the New Jersey court summarized
several guidelines that law enforcement generally follow in order to construct a fair
lineup. (Id. at pp. 251-262.)
              First, “lineups should not feature more than one suspect. As the Special
Master found, ‘if multiple suspects are in the lineup, the reliability of a positive
identification is difficult to assess, for the possibility of ‘lucky’ guesses is magnified.’”
(Henderson, supra, 208 N.J. at pp. 251-252.) This principle seems to be logical and self-
evident. The eyewitness evidence expert who testified at the habeas hearing said that the
whole purpose of having one suspect and five “fillers” in a six-pack photographic lineup

                                               4
is to protect against mistaken identification. He said that: “As you increase the number
of suspects in the lineup, you’re increasing the chance of error rate that somebody’s
going to be selected. You’re actually violating the whole point of doing a six pack or a
lineup.” Further, the suspect photo should also be placed randomly in the six-pack
lineup. “Consider placing suspects in different positions in each lineup, both across cases
and with multiple witnesses in the same case. Position the suspect randomly in the
lineup.” (U.S. Dept. of Justice Research Report, Eyewitness Evidence, A Guide for Law
Enforcement (Oct. 1999) p. 30.)
              Second, “lineups should include a minimum number of fillers. The greater
the number of choices, the more likely the procedure will serve as a reliable test of the
witness’ ability to distinguish the culprit from an innocent person.” (Henderson, supra,
208 N.J. at p. 251.) There is “no magic number [that] exists, but there appears to be
general agreement that a minimum of five fillers should be used.” (Ibid.) In California,
there is no per se requirement, but it appears that a six-pack photo array containing five
fillers is the norm. (See, e.g., People v. Carlos (2006) 138 Cal.App.4th 907, 911.)
Indeed, the federal guidelines from the Department of Justice state that when composing
a photographic lineup the investigator should: “Include a minimum of five fillers
(nonsuspects) per identification procedure.” (U.S. Dept. of Justice Research Report,
Eyewitness Evidence, A Guide for Law Enforcement, supra, at p. 29.)
              Third, and probably most important, “a suspect should be included in a
lineup comprised of look-alikes. The reason is simple: an array of similar looking people
forces witnesses to examine their memory. In addition, a biased lineup may inflate a
witness’ confidence in the identification because the selection process seemed easy.”
(Henderson, supra, 208 N.J. at p. 251.) Indeed, it has long been recognized in California
that a six-pack photo array is impermissibly suggestive where the defendant’s photograph
“stand[s] out” from the others. (People v. Carlos, supra, 138 Cal.App.4th at p. 912.)

                                             5
              Here, the Fullerton detective constructed eight six-pack photographic
lineups and showed them to the three eyewitnesses: Holguin, Patlan, and Gomez. While
there is no indication that he acted with improper motives, the detective, in varying
degrees, violated all of the modern basic principles noted above that exist to ensure the
reliability of eyewitness identifications. These systemic violations, which occurred from
the outset of the detective’s investigation, were so “impermissibly suggestive” that, when
judged in the totality of the surrounding circumstances (as discussed in the probability
analysis in the majority opinion), there was a “very substantial likelihood” of a tainted
misidentification at trial and ultimately a violation of Miles’ due process rights.
              First, the detective violated the first basic principle of fair lineup
construction by placing multiple suspects in multiple lineups. The detective constructed
eight six-pack photo arrays and labeled them A through H. Lineup A consisted of only
one suspect, Teamer, who was placed in position one and had been previously identified
by Holguin, the only witness who had any interaction with him. But for the remaining
seven lineups, lineups B through H, the detective placed multiple suspects in four of the
lineups in order to identify both Accomplice One (the skinny robber) and Accomplice
Two (the chubby robber). Significantly, this error was present in lineup H, the lineup that
contained Miles’ photograph in addition to that of one other suspect. Further, the suspect
photos did not appear to be randomized. That is, in seven of the eight six-pack lineups, a
photograph of a suspect was placed in position one.
              The Attorney General argues in her return that the detective included Miles
as a “filler” in lineup H. But at the initial habeas hearing the detective agreed that lineup
H contained two suspects and four fillers. The detective knew Miles was in the same
gang as Teamer and placed his photo in lineup H along with another gang member. The
detective only later characterized Miles as “kind of like a filler photo” because the other
gang member included in lineup H was more of a target in his mind. But this admission

                                               6
by the detective reveals the nature of the error that occurred: “fillers” are, by definition,
nonsuspects. Again, by placing multiple suspects in multiple lineups the detective
violated perhaps the most basic and fundamental tenet of fair lineup construction.
              The detective also violated another principle of fair lineup construction:
lineups must contain an adequate number of “fillers.” This violation was part and parcel
of the first violation (placing multiple suspects in multiple lineups). That is, if more than
one suspect is placed in a six-pack lineup, the number of “filler” photos is necessarily
reduced. For example, in lineup E the detective included photographs of four suspects,
which necessarily reduced the number of fillers to two. Compounding that error, one of
the suspects in lineup E was six feet, and one inch tall and 180 pounds, while another was
five feet, eleven inches tall and 230 pounds. When asked about this, the detective
explained that, “I was looking at two different suspects with two different descriptions.”
That is, while constructing the six-pack lineups, the detective combined photographs of
those people matching the description for Accomplice One (the thinner robber) with
those people matching the description for Accomplice Two (the chubbier robber). Thus,
the detective improperly combined two separate lineup procedures into one, apparently
for the sake of expediency.
              This leads to the third, and most serious concern regarding the detective’s
construction of the lineups: the overriding principle that all the persons placed in a lineup
should be similar in appearance. (People v. Dampier (1984) 159 Cal.App.3d 709, 712-
713.) While it is not of course possible that the photographs be identical, each of them
must represent a viable choice based on the descriptions of the witnesses and there should
be nothing that causes the suspect to “‘stand out’” in such a way that suggests that the
witness should select him. (People v. Carpenter (1997) 15 Cal.4th 312, 367, disapproved
on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) According to the
unimpeached expert testimony at the habeas proceeding, research shows that if only one

                                              7
person in a lineup matches the description given by the witnesses, then that person is the
most likely to be selected.
              Here, the description that the detective was working from for the purposes
of assembling a six-pack photographic lineup for Accomplice Two was a black male,
dark complexion, and stocky enough to cause a roll on the back of his neck. In lineup H,
the six-pack lineup used to identify Miles, his photograph was placed in position one and
is arguably the only photograph that appears to fit that description. That is, all six of the
photographs were, of course, of black males. But three of the men in the photographs do
not appear to have particularly dark complexions. And more importantly, five of the men
do not appear to be stocky enough to cause a roll on the back of their necks. This lone
photograph, depicting a black male with dark complexion and stocky enough to cause a
roll on the back of his neck, logically caused Miles to “stand out” from the others in the
lineup.
              Indeed, at least four of the persons in lineup H (the photographs placed in
positions two, three, four, and six) appear to more closely match the description of
Accomplice One, the thinner robber. Therefore, the best that can be said is that lineup H
contained only two possible photographs that may have fit the description of Accomplice
Two: Miles and one filler. Effectively, the identification of Miles as Accomplice Two
came down to at most to a 50/50 proposition. Indeed, when the witness from the auto
parts store, Holguin, was asked to look at lineup H, he went back and forth between
Miles in position one and the only other viable person that could possibly match the
description of Accomplice Two, the person in position five.
              The combined effects of the detective’s lineup construction violations
mentioned above rendered all three of the pretrial photo identifications “unduly
suggestive.” Moreover, in addition to the flawed construction of the lineups, the



                                              8
detective compromised another “system variable” with respect to Patlan: the pre-
identification instructions.
              California does not have a per se rule requiring pre-identification
instructions. (People v. Lucas (2014) 60 Cal.4th 153, 237, disapproved on another
ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) But there appears
to be a broad consensus that witnesses should be admonished before an identification
procedure. “Identification procedures should begin with instructions to the witness that
the suspect may or may not be in the lineup or array and that the witness should not feel
compelled to make an identification.” (Henderson, supra, 208 N.J. at p. 250.) The
reason for this pre-identification admonition is to work against a possible assumption by
the witness that the suspect is present in the lineup and the witnesses’ only task is to
choose the correct one. Further, investigating officers are advised to minimize anything
in advance of the lineup that may contaminate the identification process: “To maintain
the reliability of eyewitness identification, you must avoid any conduct prior to the
identification that might be ruled suggestive. Never tell the witness: [¶] you caught (or
think you caught) the person who committed the crime.” (California District Attorney’s
Association, California Peace Officers Legal Sourcebook (Rev. Sept. 2014) pp. 8.1-8.2.)
              Here, about a month after the robbery and before showing Patlan lineup H,
the detective notified him in advance that he had apprehended two suspects, apparently to
assuage his fears. And although Patlan signed the standard written admonishment
advising him that the robbers may or may not be present in the lineup, this admonition
was effectively negated because Patlan already knew in advance that both of the robbers
had apparently been apprehended.
              Finally, there was one other area of potential concern regarding the pretrial
identification procedures in this case: the lack of double-blind or blind administration.
Again, it appears to be self-evident that this type of administration enhances the

                                              9
reliability of eyewitness identifications. “An identification may be unreliable if the
lineup procedure is not administered in double-blind or blind fashion. Double-blind
administrators do not know who the actual suspect is. Blind administrators are aware of
that information but shield themselves from knowing where the suspect is located in the
lineup or photo array.” (Henderson, supra, 208 N.J. at p. 248.)
              If the administrator of the lineup is familiar with the suspect, then that
information can be communicated to the witnesses either “consciously or
subconsciously.” (Henderson, supra, 208 N.J. at pp. 248-249.) “The consequences are
clear: a non-blind lineup procedure can affect the reliability of a lineup because even the
best-intentioned, non-blind administrator can act in a way that inadvertently sways an
eyewitness trying to identify a suspect. An ideal lineup administrator, therefore, is
someone who is not investigating the particular case and does not know who the suspect
is.” (Id. at p. 249.) However, the California Supreme Court has refused to adopt a per se
rule requiring police to conduct photographic lineups in a blind or double-blind fashion.
(People v. Lucas, supra, 60 Cal.4th at p. 237.)
              Here, the same Fullerton detective investigated the robbery, identified
possible suspects, and then constructed the six-pack lineups, which included the
photographs of the possible suspects he had identified. The same detective then
administered those lineups to the witnesses. Thus, the danger of unintentional witness
contamination was clearly present. In sum, the pretrial identification lineups and
procedures involving Patlan, Gomez, and Holguin were unduly suggestive.


Gomez’s In-Court Identification of Miles Was Also Unduly Suggestive
              Another basic principle of reliable eyewitness identifications is that there
should be an effort to avoid giving feedback to witnesses. “Information received by
witnesses both before and after an identification can affect their memory.” (Henderson,

                                             10
supra, 208 N.J. at p. 253.) Confirmatory feedback occurs when it is signaled “to
eyewitnesses that they correctly identified the suspect. That confirmation can reduce
doubt and engender a false sense of confidence in a witness. Feedback can also falsely
enhance a witness’ recollection of the quality of his or her view of an event.” (Ibid.)
              There is also a danger of a “carryover effect” in eyewitness identifications.
This essentially means that viewing a photograph once in a picture can affect all future
identifications. “Viewing a suspect more than once during an investigation can affect the
reliability of the later identification. The problem, as the Special Master found, is that
successive views of the same person can make it difficult to know whether the later
identification stems from a memory of the original event or a memory of the earlier
identification procedure.” (Henderson, supra, 208 N.J. at p. 255.)
              Here, Gomez unequivocally identified Miles as Accomplice Two at trial in
front of the jury. But the events that occurred outside of the presence of the jury just
prior to Gomez’s identification contaminated the reliability of that in-court identification.
              During a morning break, when the judge and the jury were not present, the
prosecutor asked Gomez if she could identify Miles as Accomplice Two. Gomez
repeatedly told the prosecutor that she was unable to do so, even after Gomez had
walked up to Miles at counsel table and studied him closely and carefully. The jury
heard about this encounter after the fact because Miles’s counsel was present, took notes,
and thoroughly cross-examined and argued the point. But had this event transpired in
front of the jury, there can only be speculation as to what effect that may have had.
Indeed, it is not unheard of for witnesses to be unable to identify defendants in court.
Trials often occur months or years after the events that precipitated them; criminal
defendants are often dressed differently in court. Generally, prosecutors usually address
these anomalies forthrightly and explain the possible reasons for in-court
misidentifications during closing argument.

                                              11
              But what the prosecutor did in this case was troubling, to say the least.
Gomez related that during the period of her uncertainty, the prosecutor showed her a
color photocopy of Miles’ booking photo outside of the presence of the jury. In fact,
according to Miles’ counsel, this occurred in the hallway outside of the courtroom while
another witness from the loan office was present. The booking photo is clear: it shows
that Miles had been arrested by the Fullerton Police Department on August 5, 1998. It
was only after looking at the booking photo that Gomez said, “I looked at the picture she
showed me, and then I was certain that that is [Accomplice Two] in the robbery.”
              There are many troubling aspects to this ad hoc photo identification
procedure. In the first place, it had none of the reliability protections that come with a
properly executed six-pack photographic lineup utilizing one suspect and five fillers as
discussed earlier. The prosecutor essentially conducted a photographic lineup with only
one photograph. There was also presumably no formal admonition. Further, the
prosecutor’s showing of the booking photo to Gomez during the period of her uncertainty
gave Gomez precisely the type of positive feedback that experts in the field feel should
be avoided. That is, the booking photo undoubtedly signaled to Gomez that she had
correctly identified Miles as Accomplice Two; she could plainly see from the booking
photo that Miles was, in fact, the person that had been arrested near the time of the
robbery. Moreover, the entire episode appears to have reduced or eliminated any doubt
that she may have had. This undoubtedly engendered a false sense of confidence, and
Gomez’s confidence in her identification was undoubtedly communicated to the jury.
              Additionally, there is also a concern about the possible “carryover effect”
of Gomez’s multiple photo identifications. That is, it is impossible to know whether
Gomez’s in-court identification of Miles stemmed from her actual memory of seeing him
at the robbery or whether it stemmed from her memory of seeing Miles’ photograph in



                                             12
the earlier six-pack lineup as well as the booking photo, which the prosecutor showed to
Gomez just prior to her testimony.


The False Eyewitness Evidence Was Material
              A recent California Supreme Court case has been helpful to analyzing the
legal standard for determining the materiality of false evidence. (Richards, supra, 63
Cal.4th 291.) In Richards, a jury convicted defendant of his wife’s murder. At trial, the
prosecution introduced the testimony of a dental expert who testified that a bite mark on
the wife’s hand was consistent with the defendant’s “unusual teeth.” (Id. at pp. 293, 300-
302.) In forming his opinion, the expert relied on an autopsy photograph of a “crescent-
shaped lesion” on the victim’s hand. (Id. at pp. 300-302.) Ten years after defendant’s
conviction, the dental expert repudiated his own opinion in a habeas corpus proceeding.
The California Supreme Court ultimately found that the defendant had established that
the dental expert’s trial testimony constituted “‘false evidence’” under a recently
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amended portion of section 1473, subdivision (c), which changed the definition of false
evidence as it relates to expert testimony. (Id. at p. 311.)
              In Richards, once the Supreme Court had determined that “false evidence”
had been presented to the jury, it then focused on the materiality determination, and


1
  “For purposes of this section, ‘false evidence’ includes opinions of experts that have
either been repudiated by the expert who originally provided the opinion at a hearing or
trial or that have been undermined by later scientific research or technological advances.”
(§ 1473, subd. (e)(1).) Miles argued in a letter brief that the opinion of the Peoples’
eyewitness expert witness, Dr. Ebbe Ebbsen, who was called in rebuttal at Miles’ 1998
trial has been “undermined by later scientific research” since that time. Dr. Ebbsen had
largely criticized the methodology of the research relied upon by the defense’s
eyewitness expert who had been called at trial, Dr. Scott Fraser. This particular “false
evidence” claim has not been factored into the analysis because no evidentiary hearings
have been conducted regarding that issue.

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ultimately found the false expert testimony material and granted habeas relief. (Richards,
supra, 63 Cal.4th at pp. 312-315.) “The statute and the prior decisions applying section
1473 make clear that once a defendant shows that false evidence was admitted at trial,
relief is available under [section] 1473 as long as the false evidence was ‘material.’ Our
case law further explains that false evidence is material ‘“if there is a ‘reasonable
probability’ that, had it not been introduced, the result would have been different.’”
[Citation.] The remedial purpose of the statute is to afford the petitioner relief if the
‘false evidence [was] of such significance that it may have affected the outcome of the
trial . . . .’ [Citation.] Thus, the crucial question is whether the false evidence was
material—not whether, without the false evidence, there was still substantial evidence to
support the verdict.” (Richards, at p. 312, italics added.) The “materiality”
determination is the same prejudice standard appellate courts routinely employ: “it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
              It is not necessary at this point to fully review the entirety of the evidence.
In short, the prosecution relied on the eyewitness testimony of Patlan and Gomez who
identified Miles as Accomplice Two at the scene of the Fidelity office in Fullerton on
June 29, 1998. Without that testimony, which can now fairly be characterized as “false”
within the meaning of the habeas corpus statute, there is a reasonable probability that the
jury would not have convicted Miles. Thus, in my opinion, the false identification
evidence was “material” and therefore would have been dispositive for the purposes of
granting Miles habeas corpus relief.



                                           MOORE, ACTING P. J.




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