1 FRANK OSPINO Dept.: C-45 Public Defender 2 Orange County LISA KOPELMAN 3 Assistant Public Defender State Bar No. 124556 Est. Time: 10 days 4 SCOTT SANDERS Assistant Public Defender Motion: 2-28-14 5 State Bar No. 159406 14 Civic Center Plaza 6 Santa Ana, California 92701 7 Telephone: (714) 834-2144 Fax: (714) 834-2729 8 Attorneys for Defendant Scott Dekraai 9 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF ORANGE, CENTRAL JUSTICE CENTER 12 ) Case No.: 12ZF0128 13 PEOPLE OF THE STATE OF CALIFORNIA, ) ) NOTICE AND NONSTATUTORY 14 Plaintiff, ) MOTION TO DISMISS THE ) DEATH PENALTY; POINTS AND 15 v. ) AUTHORITIES IN SUPPORT ) THEREOF; EXHIBITS AND 16 SCOTT EVANS DEKRAAI, ) DECLARATION OF COUNSEL. ) 17 Defendant. ) ) 18 19 PLEASE TAKE NOTICE that on February 28, 2014, at 9:00 a.m. or as soon 20 thereafter as the matter may be heard in Department C-45 of the above-entitled court, 21 Defendant Scott Dekraai will move this Court for an order prohibiting a penalty phase or 22 alternatively dismissing the special circumstances allegations in this case should Dekraai 23 be convicted of the murders alleged in the indictment. 24 /// 25 /// 26 27 28 1 Motion to Dismiss - Dekraai 1 TABLE OF CONTENTS 2 Motion 4 3 Statement of the Case 5 4 Summary of Motion and Findings 8 5 Points and Authorities 59 6 I. Outrageous Governmental Conduct 59 7 A. Facts 61 8 Inmate F.'s Previous History as an Informant 62 9 Pending Third Strike Prosecutions of Inmate F. 64 10 Inmate F.'s Gang and Mexican Mafia Involvement 73 11 Inmate F.'s Pre-Dekraai Efforts As Informant in 2010 and 2011 83 12 First Phase of Inmate F.'s Informant Work: 13 June 17, 2010 through July 8, 2010 86 14 Second Phase of Inmate F.'s Informant Work: 15 July 9, 2010 through March 10, 2011 93 16 Third Phase of Inmate F.'s Informant Work: 17 March 11, 2011 through September 14, 2011 99 18 People v. Inmate I. 99 19 People v. Inmate S. 130 20 Inmate F. and Dekraai 142 21 "Coincidental Contact" Between Inmate F. and Dekraai 143 22 The Prosecution Team Interviews Inmate F. 166 23 Analysis of Recorded Conversations Between Inmate F. and Dekraai 176 24 Hidden "Informant Assistance" Memo 187 25 Litigation of the Defense Discovery Motion 196 26 Dekraai Prosecution Team Continues to Conceal Massiah and 27 Brady Violations After This Court's Discovery Order 210 28 2 Motion to Dismiss - Dekraai 1 Dekraai Prosecution Team's Misconduct Beyond Inmate F. 221 2 Unlawful Efforts to Obtain Dekraai's Psychological Records 221 3 Efforts to Inflame the Public and Victims' Families Against 4 Dekraai and His Counsel 231 5 Further Evidence of the Misconduct Surrounding the 6 Custodial Informant Program 239 7 Informant Oscar Moriel 239 8 People v. Leonel Vega 248 9 People v. Luis Vega and Alvaro Sanchez 305 10 People v. Joe Rodriguez, Juan Lopez, and Sergio Elizarraraz 320 11 People v. Jose Camarillo, Mark Garcia, Fernando Gallegos, 12 and Bernardo Guardado 365 13 People v. Ricardo Lopez 391 14 Evidence and Consequences of Systemic Brady Violations 409 15 The Henry Cabrera Cases 410 16 People v. Eduardo Garcia and Guillermo Brambila 456 17 People v. Damien Galarza 475 18 People v. Gabriel Castillo 481 19 B. Legal Analysis 487 20 II. Due Process Violation 493 21 III. The Court's Inherent Judicial Power 494 22 IV. Cruel and Unusual Punishment 497 23 Conclusion 505 24 25 26 27 28 3 Motion to Dismiss - Dekraai 1 MOTION 2 Defendant Scott Dekraai hereby moves this Court for an order prohibiting a penalty 3 phase in this case should Dekraai be convicted of the special circumstances murders 4 alleged in the indictment, or alternatively an order dismissing the special circumstances 5 allegations. Said motion is based upon this notice and motion, these Points and 6 Authorities, the exhibits, the declaration of counsel, the testimony and evidence presented 7 at the hearing on the motion, Dekraai's state and federal constitutional rights to counsel, a 8 fair trial, due process, and the right to be free from cruel and unusual punishment, the 9 outrageous governmental conduct engaged in by the prosecution and law enforcement, this 10 Court's inherent judicial power, Penal Code section 1385, and any argument of counsel 11 presented at the hearing on the motion. 12 Should the Court prohibit the imposition of the death penalty, it is anticipated that if 13 Dekraai is convicted of the special circumstance murders, he would be sentenced to eight 14 consecutive life sentences without the possibility of parole, along with consecutive 15 sentences for additional charges and enhancements. Alternatively, should the Court 16 dismiss the special circumstance allegations, it is anticipated Dekraai would be sentenced 17 to more than 400 years to life in prison. 18 /// 19 /// 20 21 22 23 24 25 26 27 28 4 Motion to Dismiss - Dekraai 1 STATEMENT OF THE CASE 2 Defendant Scott Dekraai was arrested on October 12, 2011 and taken into custody. 3 On October 14, 2011, the prosecution filed a complaint against Dekraai in case number 4 11CF2781.1 On the same date, Dekraai appeared for arraignment on the Complaint while 5 represented by private attorney Robert Curtis. The arraignment was continued at Dekraai's 6 request to October 24, 2011. 2 7 On January 24, 2012, the prosecution first provided discovery related to Dekraai’s 8 contact with Inmate F.3 According to that discovery, on October 19, 2011, at 9 approximately 2:30 p.m., members of the Dekraai prosecution team, which included 10 Assistant Orange County District Attorney (“OCDA”) Dan Wagner and Senior Deputy 11 District Attorney Scott Simmons, OCDA Investigator Bob Erickson, Seal Beach Police 12 Department (“SBPD”) Detective Gary Krogman, and Orange County Sheriff's Department 13 (“OCSD”) Deputies Ben Garcia and Bieker, met with an Orange County Jail inmate named 14 Inmate F. at the Orange County Jail. Inmate F. was questioned about statements made to 15 him by Dekraai while the men were incarcerated together at the Orange County Jail. 16 After interviewing Inmate F., several members of the prosecution team met with 17 OCSD personnel and requested that a covert audio recording device be installed in 18 19 1 An indictment against Dekraai was filed on January 17, 2012, under the current case 20 number. 21 2 Pursuant to Evidence Code section 452, subdivision (d)(1), Dekraai respectfully 22 requests the Court take judicial notice of the minute orders from October 14 and October 24, 2011, in case number 11CF2781. 23 24 3 Dekraai is honoring the prosecution’s previous request to use “Inmate F.” in place of the witness’ actual name. Additionally, similar language is being used in place of other 25 individuals’ names mentioned in this brief, who have pending matters, where facts related 26 to their case are discussed. Oscar Moriel, another informant referenced in this motion, is being identified by his actual name as prosecutors have revealed his identity in discovery in 27 multiple cases. Moriel has also testified in three trials using his complete name. 28 5 Motion to Dismiss - Dekraai 1 Dekraai's cell at the Intake and Release Center. The device was installed on October 19, 2 2011, and began recording that day at 5:37 p.m. The device recorded conversations in 3 Dekraai's cell from that date and time until October 25, 2011, at 4:39 a.m.4 The device was 4 removed from Dekraai's cell on October 25, 2011, and the recordings were copied to a 5 compact disc. The recording device captured a number of conversations between Dekraai 6 and Inmate F. 7 Dekraai's counsel, Assistant Public Defender Scott Sanders, filed an informal 8 request for discovery on October 16, 2012, seeking discovery exclusively related to Inmate 9 F. (Declaration of Attorney Scott Sanders, attached herein as Exhibit A; Defendant’s 10 informal discovery request, filed October 16, 2012, attached herein as Exhibit B.) The 11 prosecution had provided the discovery requested in paragraph one. None of the other 12 requested items had been discovered. (Exhibit A.) 13 On October 19, 2012, Sanders and Wagner5 spoke about the informal discovery 14 request. Wagner stated he would not provide the requested discovery, as he did not intend 15 to call Inmate F. as a witness. Sanders stated that, nonetheless, the defense intended to call 16 Inmate F. at a motion to suppress Dekraai's recorded conversations with Inmate F. as 17 violative of Dekraai's Sixth Amendment right to counsel. Wagner reiterated that he would 18 not provide the requested discovery absent an order from this Court. (Exhibit A.) 19 On December 28, 2012, Dekraai filed a Motion to Compel Discovery, seeking the 20 discovery identified in the informal discovery request. (Defendant’s Amended Motion to 21 Compel Discovery, People v. Dekraai (Super Ct. Orange County, No. 12ZF0128), attached 22 herein as Exhibit C.) 23 On January 18, 2013, the prosecution filed its Opposition to Defendant’s Motion to 24 25 4 On October 24, 2011, Dekraai appeared in court and the Public Defender was 26 appointed to represent him. 27 5 Individuals referenced in this motion will hereafter be referred to only by their last 28 names for clarity and brevity, and not out of disrespect. 6 Motion to Dismiss - Dekraai 1 Compel Discovery, arguing the Court should not order disclosure of any of the identified 2 items within the discovery motion. (People’s Opposition to Defendant’s Motion to 3 Compel Discovery, People v.