IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

TY MICHAEL HILL,Petitioner

THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA, COUNTYOF SAN LUIS OBISPO,

Respondent

THE PEOPLE OF THE

STATE OF CALIFORNIA,Real Party in Interest

CRIMNO.

San Luis Obispo CountyS.C. No. F 452204

The Hon. Barry LaBarberaJudge of the SuperiorCourt

Trial: August 6, 2012

PETITION FOR REVIEW

IN A CAPITAL CASE

WILLIAM ROY McLENNAN

ROBERT THOMAS ALLEN

State Bar Nos. 75325/044774

1022 Mill Street

San Luis Obispo, CA 93401(805) 544-7950Attorneys for PetitionerTy Michael Hill

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

LIST OF EXHIBITS iv

PETITION FOR REVIEW 1

VERIFICATION 12

MEMORANDUM OF AUTHORITY 13

I Introduction 13

II Summary of Relevant Preliminary HearingTestimony and Greenwell Interview Statements 15

III Petitioner was Denied Substantial RightsAnd An Evidentiary Hearing Is Required 22

IV Conclusion 27

Proof of Service 28

WORD COUNT: 7725

TABLE OF AUTHORITIES

United States Supreme CourtBrady v. Maryland (1963) 373 U.S. 83[10 L. Ed. 2d 215, 83 S. Ct. 1194] 5,24,25

Gregg v. Georgia (1976) 428 U.S. 153[49 L.Ed.2d 913, 96 S.Ct. 2909] 27Maine v. Molton (1985) 474 U.S. 159[106 S.Ct. 477; 88 L.Ed.2d 48 2,15,26United States v. Morrison (1981) 449 U.S. 361[101 S.Ct. 665; 66 L.Ed.2d 564] 2,15,26Woodson v. North Carolina (1976) 428 U.S. 280[49 L.Ed.2d 944, 26 S.Ct. 2978] 27

California Supreme CourtBarber v. Municipal Court (1979) 24 Cal.3d 742 2,15,26Galindo v. Superior Court (2010) 50 Cal.4th 1 26In re Sassounian (1995) 9 CaUth 535 24Izazaga v. Superior Court(1991) 54 Cal.3d 356 25People v. Co/e(2004)33 Cal.4th 1158 14People v. Coleman (1988) 46 Cal.3d 749 15,22People v. Davenport(19Z5) 4\ Cal. 3d 247 14People v. Hillhouse (2002) 27 Cal.4th 729 14People v. Pompa-Ortiz (1980) 27 Cal.3d 519 22People v. Zambrano (2007) 41 CaUth 1082 24

California Court of AppealsBoulas v. Superior Court (1986) 188 Cal.App.3d422 2, 15,26Merrill v. Superior Court (1994) 27 Cal.App. 4th1586 2,3,22,23,24,25People v. Duncan (2000) 78 Cal.App.4th 765 2,3People v. Mackey (1985) 176 Cal.App.3d 177 22People v. McGlothen (1987) 190 Cal.App.3d 1005 16Stanton v. Superior Court (X994) 193 Cal.App.3d 265 2, 3,14,23

California Penal Code Sections

Penal Code § 187(A) 4,6Penal Code § 187(A)(1) 6Penal Code § 189 4,6

Penal Code § 189/664(A) 7Penal Code § 207 4Penal Code § 190.2(a)(17) 4Penal Code §190.2(a)(17)(B) 6.14Penal Code § 190.2(a)(17)(M) 7Penal Code § 190.2(a)(18) 4,6,14Penal Code § 190.2(c) 4,6Penal Code § 190.2(d) 6Penal Code § 866(a) 24.Penal Code § 995 7Penal Code § 1054(b) 7Penal Code § 1054(e) 7Penal Code § 1054.5 15Penal Code § 1192.7(c)(8) 4Penal Code § 1192.7(c)(23) 4

Constitutions

Sixth Amendment to the United States Constitution 2, 3,11

LIST OF EXHIBITS

EXHIBIT A Order of the Court of Appeal ofthe State ofCalifornia,Second Appellate District, Division Six, datedFebruary 14, 2012, denying petition for writ ofprohibition in B 238833

IV

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

TY MICHAEL HILL,Petitioner

THE SUPERIOR COURT OF THE

STATE OF CALIFORNIA, COUNTYOF SAN LUIS OBISPO,

Respondent

THE PEOPLE OF THE

STATE OF CALIFORNIA,Real Party in Interest

CRIM NO.

San Luis Obispo CountyS.C. No. F 452204

The Hon. Barry LaBarberaJudge of the SuperiorCourt

Trial Date: 8/6/12

PETITION FOR REVIEW

IN A CAPITAL CASE

TO: THE HONORABLE CHIEF JUSTICE TANI GORRE CANTIL-

SAKAUYE AND THE HONORABLE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE STATE OF CALIFORNIA:

Petitioner TY MICHAEL HILL petitions this court for review

following the decision of the Court ofAppeal, Second Appellate District,

Division Six filed on February 14,2012, denying petitioner's Petition for

Writ of Mandate/Prohibition (B238833). A copy of the order of the Court

ofAppeal is attached as Exhibit A.

Petitioner TY MICHAEL HILL petitions this Court to issue a writ of

mandate/prohibition in this capital case, directing respondent court to find

that the non-disclosure of the exonerating statements of co-defendant Jason

Greenwell concerning the time and manner of the victim's death denied

petitioner substantial rights at his preliminary hearing and grant petitioner

an evidentiary hearing to present cross examination, affirmative defense and

rebuttal evidence to establish additional "materiality" before respondent

court rules on petitioner's motion to dismiss the special circumstances.

(Stanton v. Superior Court (1994) 193 Cal.App.3d 265; Merrill v. Superior

Court (1994) 27 CaLApp. 4th 1586; People v. Duncan (2000) 78

Cal.App.4th 765.)

Petitioner further petitions this Court for an evidentiary hearing to

establish facts outside the record that support his contention that the

conduct of the prosecution, including the non-disclosure of the exculpatory

statements of co-defendant Jason Greenwell and the misleading and evasive

testimony concerning this interview and other time of death evidence from

prosecution witnesses, denied him the Sixth Amendment right to competent

counsel at the preliminary hearing. (Boulas v. Superior Court (1986) 188

Cal.App.3d 422,430; Maine v. Motion (1985) 474 U.S. 159 [106 S.Ct. 477,

88 L.Ed.2d 48]; UnitedStates v. Morrison (1981) 449 U.S. 361 [101 S.Ct.

665,66L.Ed.2d564].)

ISSUES PRESENTED

1. Did the non-disclosure of the exculpatory statements of co-

defendant Jason Greenwell violate petitioner's substantial rights to a fair

preliminary hearing, competent representation, effective cross-examination,

negate elements of the special circumstances and present an affirmative

defense to the special circumstances of kidnaping and torture? (Stanton v.

Superior Court (1994) 193 Cal.App.3d 265; Merrill v. Superior Court

(1994) 27 CaLApp. 4th 1586; People v. Duncan (2000) 78 Cal.App.4th 765.)

2. Before respondent court ruled on his motion to dismiss the special

circumstance allegations, was petitioner entitled to an evidentiary hearing to

present affirmative defense and rebuttal evidence that would have been

offered at the preliminary hearing to establish "materiality" and demonstrate

there was insufficient probable cause to support the holding order for the

special circumstance allegations of kidnaping and torture? (Stanton v.

Superior Court (1994) 193 Cal.App.3d 265; Merrill v. Superior Court

(1994) 27 CaLApp. 4th 1586; People v. Duncan (2000) 78 Cal.App.4th 765.)

3. Before respondent court ruled on his motion, was petitioner

entitled to an evidentiary hearing to present evidence outside the record to

support his contention that the material, non-disclosed statement of co-

defendant Jason Greenwell concerning time of death combined with the

misleading and evasive testimonyof prosecutionwitnesses interfered with

and denied him the Sixth Amendment right to competent counsel?

PARTIES

4. Petitioner is Ty Michael Hill, the only capital defendant in the

case ofPeople v. Ty Michael Hill, Cody Lane Miller, Frank Jacob York,

Jason Adam Greenwell, and Rhonda Maye Wisto. (San Luis Obispo County

Superior Court # F 452204.)

5. Respondent is the Superior Court of the State of California,

County of San Luis Obispo. (Hereinafter respondent court.)

6. Real Party in Interest is the People of the State of California

represented by San Luis Obispo County Chief Deputy District Attorney

Timothy Covello. (Hereinafter real party.)

STATEMENT OF THE CASE

7. In the early morning hours on September 26,2010, the burned

body of Dystiny Myers was discovered in a shallow hole in a rural area

outside of Santa Margarita, California, by California firefighters.

Defendant Cody Miller was found injured at the scene and he immediately

admitted his involvement in the crime and implicated the co-defendants,

including petitioner. On the same day, Ty Michael Hill, Rhonda Maye

Wisto, Frank Jacob York, Cody Lane Miller and Jason Adam Greenwell

were arrested and interrogated for the murder of Dystiny Myers.

8. Co-defendant Jason Greenwell was interviewed by San Luis

Obispo County Sheriff Detectives Patrick Zuchelli and Robert Burgeson on

September 26th and 28th 2010. Therecordings of these interviews were

provided to the defendant prior to the preliminary hearing. (Sealed Exhibit

B, declaration ofKaren Chilina, originally filed with petitioner's motion as

Exhibit A.) Prior to the preliminary hearing, the statements of the

defendants indicated the victim was moving when she was transported to

the burial site and there was no information that indicated the victim died in

the bedroom and was moved only afer her death.

9. On September 29, 2010, a one count complaint was filed against

the same individuals who were arrested, charging them with murder, in

violation of Penal Code § 187(A). On October 13, 2010, a one count

amended complaint was filed against all defendants charging them with

willful, deliberate and premeditated murder, in violation of Penal Code §

187(A) and Penal Code § 189. The amended complaint included

enhancements for murder during the commission or attempted commission

of a kidnaping, within the meaning of Penal Code §§ 207 and 190.2(a)(17)

(enhancement 1), aiding and abetting murder and the commission of a

special circumstance with intent to kill, withinthe meaningof Penal Code §

190.2(c) (enhancement 2), and torture murder within the meaning ofPenal

Code § 190.2(a)(18) (enhancement 3).

10. On January 27, 2011, eleven days before the preliminary

hearing, co-defendant Jason Greenwell was secretly interviewed at the San

Luis Obispo County District Attorney's Office by San Luis Obispo District

Attorney Investigator Isabel Funaro and San Luis Obispo County Sheriff

Detective Patrick Zuchelli in the presence ofHarold Mesick, attorney for

defendant Jason Greenwell. During this third known interview attended by

Detective Zuchelli, Jason Greenwell contradicted his prior statements and

those of the defendants and provided new exculpatory material evidence

pertinent to time of death and the special circumstances. Specifically, he

agreed that the victim was dead in the bedroom prior to being transported to

the burial site, that in the bedroom Cody Miller ran out of duct tape that was

placed over the strangulation ligature and the victim may not have been

moaning or moving when transported to the burial site. (Sealed Exhibit B,

transcript of January 27, 2011, interview of Jason Greenwell, part 2,

attached to the sealed declaration of Karen Chilina as Exhibit A.) The

recording of this interview was not provided to the defendant prior to the

preliminary hearing.

11. At the preliminary hearing conducted on February 7th and 8th,

2011, San Luis Obispo County Sheriffs Detective Stuart McDonald

testified that Dr. Gary Walter, the pathologist who performed the autopsy,

told him that Dystiny Myers was asphyxiated within approximately four

minutes by sweat pants that were tightly bound around her neck and cloth

fabric glove stuffed into her mouth. (Preliminary hearing transcript

(hereinafter PHT) 83, 89, 92-93, 101.) Deputy McDonald was not qualified

to render any medical opinions and was evasive when asked specific

question about the time of death and the independent role of the tight

ligature around the victim's neck. (PHT 87, 92-93,101.)

12. Detective Patrick Zuchelli testified at the preliminary hearing but

failed to relay the new exculpatory statements of Jason Greenwell from

eleven days before and stated, when questioned by Chief Deputy District

Attorney Timothy Covello and Attorney Harold Mesick, that he had

interviewed Jason Greenwell only two, but not three times. Detective

Zuchelli relayed statements attributed to Jason Greenwell that were

contradicted by statements made at his secret January interview and failed

to mention other statements that were material to time of death. At the

conclusion of the preliminary hearing, the magistrate made no specific

findings of fact, conclusions of law or comments on the evidence but

simply stated the defendants were all held to answer on Count 1 of the

amended complaint and enhancements 1,2, and 3. (PHT 222.) No

arguments were made or authority presented by the prosecutoror counsel

for any of the defendants.

13. On February 23, 2011, an information was filed against all

defendants. Count 1 of the information charged all defendants with murder,

in violation of Penal Code § 187(A) and Penal Code § 189. Count 1

included enhancements for aiding and abetting the commission of first

degree murder and the true finding of a special circumstance within the

meaning ofPenal Code § 190.2(c) (enhancement 1), murder during the

commission of a kidnaping, within the meaning ofPenal Code §

190.2(a)(17)(B) (enhancement 2), aiding and abetting the commission of

first degree murder and aiding and abetting with reckless indifference or as

a major participant in the commission of kidnaping resulting in death,

within the meaning of Penal Code § 190.2 (d) (enhancement 3), and torture

murder within the meaning of Penal Code § 190.2(a)(18) (enhancement 4).

Count 2 of the information alleged conspiracy to commit murder in

violation of Penal Code § 182(A)(1) and Penal Code §189 and further

alleged 19 overt acts conducted in the course of the conspiracy. Count 3 of

the complaint charged the attempted premeditated murder of defendant

Cody Lane Miller by petitioner and defendants Rhonda Maye Wisto and

Frank Jacob York, in violation of Penal Code §§189 and 664(A).

Petitioner and defendant Frank Jacob York were additionally charged with

the personal use of a deadly weapon, within the meaning ofPenal Code

section 1192.7(c)(23) (enhancements 5 and 6), and with the infliction of

great bodily injury, within the meaning of Penal Code § 1192.7(c)(8)

(enhancements 7 and 8).

14 On March 23, 2011, William Roy McLennan was appointed as

capital counsel for petitioner and real party announced that petitioner alone

would be prosecuted as a capital defendant.

15. Petitioner's Motion to Dismiss the Information Pursuant to

Penal Code § 995, contending there was insufficient evidence to sustain the

special circumstances of kidnaping and torture, was heard and denied on

July 25, 2011, by the Honorable Michael Duffy of respondent court. A writ

of prohibition was filed with the California Court ofAppeal, Second

Appellate District, Division 6 (#B 234873) on August 8, 2011, and denied

on September 15, 2011. A petition for review was filed with the California

Supreme Court (#S 196612) on September 21, 2011, and denied on October

20,2011.

16. Petitioner's Motion to Declare Penal Code § 190.2 (a)(17)(M)

Unconstitutional was filed on September 20, 2011, and was heard and

denied by the trial courton October 20, 2011. A writ of prohibition was

filed with the California Courtof Appeal, Second Appellate District,

Division 6 (#B 236891) on October 27, 2011, and denied on October 31,

2011. A petition for review was filed with the California Supreme Court

(#S197692) on November 3, 2011, and denied on November 22, 2011.

17. Following the preliminaryhearing, the defendant requested all

statementsof Jason Greenwell but was rebuffed by the prosecution. A

motion to compel the disclosure of those statements was heard and denied

by respondent court on November 10, 2011.

18. On December 9, 2011, the petitioner was given a recording of

the interview of Jason Greenwell conducted on January 27, 2011, by

District Attorney Investigator Isabel Funaro and San Luis Obispo County

Sheriff Detective Patrick Zuchelli in the presence of Harold Mesick,

attorney for defendant Jason Greenwell. It is evident from the content of

the interview that Jason Greenwell was previously interviewed by District

Attorney Investigator Isabel Funaro but the time, location and content of

these interviews are presently unknown, despite a new request for this

specific discovery made on December 15, 2011.

19. On January 9, 2012, petitioner filed his Notice of Motion and

Motion to Dismiss the Special Circumstances for Denial of Substantial

Rights and Failure to Disclose Exculpatory Evidence; Motion to Compel

Discovery and for an Evidentiary Hearing. (Exhibit A.) The transcript of

the January 27,2011, interview of Jason Greenwell (part 2), was attached as

Exhibit A and a CD copy of the quoted sections was attached as Exhibit B

to the declaration Karen Chilina. The declaration and transcript were

ordered sealed by respondent court. The sealed declaration and exhibits are

filed with this writ as Exhibit B. On January 19, 2012, the prosecution filed

People's Opposition to Ty Michael Hill's Motion to Dismiss the Special

Circumstances for Denial of Substantial Rights and Failure to Disclose

ExculpatoryEvidence. (Exhibit C.) On January 24,2012, petitioner filed

his Reply to Opposition to Motion to Dismiss Special Circumstances for

Denial of Substantial Rights and Failure to Disclose Exculpatory Evidence.

(Exhibit D.) On January 25, 2012, the prosecution filed People's Sur-Reply

to Defendant's Reply to Opposition to Motion to Dismiss the Special

Circumstances. (Exhibit E.)

20. On January 26, 2012, petitioner's motion was heard and denied

by the Honorable Barry LaBarbera in Department 2 of respondent court.

The transcript of the motion hearing (hereinafter RT) is lodged as Exhibit F

and the minute order is lodged as Exhibit G. The autopsy photograph

depicting the strangulation ligature under the duct tape was received in

evidence, ordered sealed and is lodged as sealed Exhibit H. At the hearing,

respondent court listened to an offer of proof from petitioner (Exhibit F, RT

438-443), denied petitioner's motion for an evidentiary hearing and stated, "

... the statement by Mr. Greenwell is not such that it would belie the

statements that were attributed to him by the detectives. It's arguable, I

suppose, that that compound question which ended up with a "but yeah."

The word "but yeah" might have referred to the alleged victim having

passed by that in the room. Could have meant a lot of things ..." (Exhibit

F, RT 448-449.) Respondent court further stated, "So you could certainly

interpret the way the defendant wants it to be interpreted. I don't think

that's an inference that I would draw." (Exhibit F, RT 449, 15-17.)

The court note the standard at a preliminary hearing is "very low"

and stated, "Mr. McLennan indicating he had - - did not have sufficient

evidence to competently cross-examine, those issue that he raised and his

request for an evidentiary hearing, thosematters are things that he can

explore. They're obviously trial issues." (Exhibit F, RT 450, 13-17.)

Finally, respondent court noted, " I have to reject the idea that the D.A. has

some sort of burden to present discovery of ongoing investigation which I

imagine this was with regard to Mr. Greenwell. They disclosed it when

they completed it." (Exhibit F, RT 450. 23-36.)

21. On February 2, 2012, petitioner filed a petition for writ of

mandate/prohibition in the Court ofAppeal, Second District, Division Six

(B238833) that was denied on February 14, 2012. (Exhibit A.)

22. Trial is presently set for August 6, 2012.

GROUNDS FOR RELIEF

23. Respondent court failed to recognize that the non-disclosure of

Jason Greenwell's exonerating statements denied him substantial

preliminary hearing rights and that an evidentiary hearing was required to

allow the presentation of additional material evidence to prove there was no

basis for the holding order for the special circumstance allegations of

kidnaping and torture.

24. The issues presented in this petition have not been raised in any

other petition.

25. Petitioner has no plain, speedy and adequate remedy at law other

than the relief sought in this petition. If relief is not granted, petitioner will

be deprived of the right to demonstrate the prosecution violated his right to

competent counsel and to a fair preliminary hearing and an opportunity to

present evidence that demonstrates there is no factual basis for the holding

order for the special circumstances of kidnaping and torture.

PRAYER FOR RELIEF

WHEREFORE, Petitioner Ty Michael Hill respectfully prays that:

10

1. This court find the non-disclosure of the exculpatory statements

by Jason Greenwell denied petitioner the substantial rights to competent

counsel, effective cross examination, negate elements of the special

circumstance allegations and present an affirmative defense to the special

circumstances ofkidnaping and torture.

2. This court find that respondent court acted unlawfully when it

considered only the materiality of the non-disclosed statements of co-

defendant Jason Greenwell and denied petitioner an evidentiary hearing to

present additional material evidence outside the record that would have

been presented at the preliminary hearing as rebuttal and affirmative

defense evidence before it ruled on petitioner's motion.

3. This court find that respondent court acted unlawfully when it

denied petitioner an evidentiary hearing to present evidence outside the

record to establish that the failure to disclose the exculpatory statement of

Jason Greenwell combined with the misleading testimony at the preliminary

hearing violated petitioner's SixthAmendment right to competentcounsel

at the preliminary hearing.

4. An alternative writ of mandate/prohibition be issued requiring

respondent court to show cause before this Court, why it should not be

restrained from denying petitioner an evidentiary hea^in^

Dated: February 15, 2012

William Roy McLennanRobert Thomas Allen

Attorneys for PetitionerTy Michael Hill

ii

VERIFICATION

I, William Roy McLennan, am the court appointed counsel for

indigent petitioner Ty Michael Hill in the above-entitled case. I have read

the foregoing petition and know its contents. The contents are true to my

knowledge except as to those matters that are alleged on information and

belief. I believe those matters alleged on information and belief to be true.

Petitioner consents to this petition being filed on his behalf.

I declare under penalty of perjurythat the foregoing is true and

correct. Executed on February 15, 2012, at San Luis Obispo, California.

William Roy McLennanAttorney for PetitionerTy Michael Hill

12

MEMORANDUM OF POINTS AND AUTHORITIES

I

INTRODUCTION

The time Dystiny Myers died would have been the central

battleground at the preliminary hearing and a compelling affirmative

defense to the special circumstances would have been mounted if the

undisclosed interview with Jason Greenwell conducted by District Attorney

Investigator Isabel Funaro and San Luis Obispo Sheriff Detective Patrick

Zuchelli eleven days before the preliminary hearing had been properly

provided to the defendant. At the interview, Jason Greenwell contradicted

his former statements, later relayed to the magistrate by Detective Zuchelli,

and said the victim was dead in the bedroom at 311 Mars Court, that he

alone carried the victim's body from the house to the truck, that he heard no

moaning at the Chevron station, that he did not know if the movement in

the back of the truck at the Chevron station was the victim, and that Cody

Miller ran out of duct tape while binding the victim in the bedroom, a

significant fact when considering autopsy photographs that clearly depict

the duct tape wrapped over the neck ligature. (See Exhibit B, sealed

transcript of January 27, 2011, interview ofJason Greenwell, part 2,

attached to the sealed declaration of Karen Chilina as Exhibit A.)

These facts, when combined with the undisputed cause of death by

mechanical asphyxiation, specifically a tightly knotted sweat pant ligature

around her neck and a cloth glove in the victim's mouth, and other

seemingly scattered and inconsistent evidence, such as Jacob York telling

his interrogators that Cody Miller stuffed a glove in the victim's mouth in

the bedroom (PHT 244.), Jason Greenwell's earlier statement that the

victim was "strangled" in the bedroom, and autopsy photographs clearly

13

depicting the sweat pant ligature under the duct tape, raise serious

questions about the true time of death.

The statements of Jason Greenwell would have provided facts to

support an offer of proof pursuant to Penal Code § 866(a) and triggered

competent cross examination and a comprehensive affirmative defense that

would have conclusively established that Dystiny Myers was never

kidnaped or tortured but suffocated and killed with a ligature and fabric

glove in a bedroom at 311 Mars Court in Nipomo, California. The special

circumstances of kidnaping (Penal Code § 190.2 (a)(17)(B)) and torture

(Penal Code § 190.2 (a)(18)) could never have been sustained by the

magistrate because it is legally impossible to kidnap a dead body and a

rapid death from ligature strangulation cannot support a finding of torture.

(People v. Hillhouse (2002) 27 Cal.4th 729,498 [ kidnaping requires a live

victim]; People v. Davenport (1985) 41 Cal. 3d 247, 271; People v. Cole

(2004) 33 Cal.4th 1158, 1228. [torture requires intent to inflict pain beyond

the pain of death.)

As was the case in Stanton v. Superior Court (1994) 193 Cal.App.3d

265, 269, it is impossible to judge the nature and extent of the denial of the

defendant's rights to conduct effective cross examination, present an

affirmative defense, rebut elements of the special circumstances and to be

represented by competent counsel without conducting an evidentiary

hearing. Stanton clearly guarantees that right and it is essential in this case

to call and examine Dr. Gary Walter, Detective Patrick Zuchelli, District

Attorney Investigator Isabel Funaro, Jason Greenwell and Harold Mesick

before the court rules on the motion to strike the special circumstances.

In addition to the denial of substantial rights at the preliminary

hearing, the defendant's Sixth and Fourteenth Amendment, and California

14

statutory discovery rights were violated when the material exculpatory

statements of Jason Greenwell were not disclosed prior to the preliminary

hearing. The testimony at the preliminary hearing misled the magistrate

concerning the number of times Jason Greenwell was interviewed, the

credibility of Jason Greenwell and the location of the victim's death. The

manipulation of the defendant's attorney by withholding crucial evidence

denied the defendant his Sixth Amendment right to competent

representation and his Fourteenth Amendment right to due process. (Penal

Code 1054(e), 1054.1(b)(and (e); People v. Coleman (1988) 46 Cal.3d 749

[competent counsel is a substantial right; right to evidentiary hearing];

Penal Code § 1054 (e) [right to constitutionally compelled discovery]; Penal

Code § 1054.5 [broad discretion to fashion remedy]; Brady v. Maryland

(1963) 373 U.S. 83, 87 [10 L. Ed. 2d 215, 83 S. Ct. 1194] [right to material

exculpatory evidence without demand]; Boulas v. Superior Court (1986)

188 Cal.App.3d 422,430 [court may fashion remedy to correct wrong for

6th Amendment violation]; Barber v. Municipal Court (1979) 24 Cal.3d742

[same]; Maine v. Molton (1985) 474 U.S. 159 [106 S.Ct. 477; 88 L.Ed.2d

48] [same]; United States v. Morrison (1981) 449 U.S. 361 [101 S.Ct. 665;

66L.Ed.2d564][same].)

II

SUMMARY OF RELEVANT PRELIMINARY HEARING

TESTIMONY AND GREENWELL INTERVIEW STATEMENTS

There would be no factual or legal basis to support the kidnaping

special circumstance if the pathologist supported the undisclosed testimony

ofJason Greenwell and testified that Dystiny Myers was asphyxiated within

approximately four minutes by the ligature around her neck. There would

have been no factual or legal basis to support the torture special

15

circumstance if Dystiny Myers was killed quickly by strangulation. (See

People v. McGlothen (1987) 190Cal.App.3d 1005 [magistrates finding not

controlling if focuses on one discrepancy and ignores more powerful

evidence].) While the non-disclosed testimony of co-defendant Jason

Greenwell alone would not be sufficiently material for a new preliminary

hearing, an evidentiary hearing would have provided sufficient facts outside

the record to prove that petitioner was denied substantial rights and entitled

to a new preliminary hearing.

Detective Zuchelli did not testify at the preliminary hearing on

February 7th and 8th, 2011, thatJason Greenwell believed the victim was

strangled and dead in the bedroom but rathertestified that she was "moving

or moaning" in the truck at 311 Mars Court. (PHT 192, L 22-28.) As

specifically stated by Detective Zuchelli:

Q. Now, I'm going to back up. I don't think I asked you.Did Mr. Greenwell tell you if Dystiny Myers was alive whenshe was put in the back of the pickup truck at 311 MarsCourt?

A. Yes, he did.Q. What did he tell you?A. I believe he said that she was possibly moving or moaning.

(PHT 192.)At the undisclosed interview on January 27, 2011, Jason Greenwell

contradicted his prior statements and the eventual preliminary hearing

testimony of Detective Zuchelli and stated the victim was dead in the

bedroom at 311 Mars Court before she was placed into the truck. As stated

by Jason Greenwell during the secret interview on January 27, 2011:

Q. So before he picks her up and puts her intothe bag, what makes these guys stop doing whatthey're doing? Does he tell them to stop or howdoes that.. .How does Ty just stop?A. He just... he just picked ... he just

16

grabbed her, you know? I don't reallyremember any words that were ...Q. He didn't say "get out of the way, let megrab her," he just grabbed her?A. Yeah, as far as I remember. By that pointI'm already ... shit pretty I guess shocked, Iguess.

[0:38:54.5] Q. Do you think she was dead at that point?Was she still moving around? Could you tell ifshe was breathing? Her eyes open?A. No, you couldn't really see her eyes, but...Q. How come?A. There was tape over them.Q. OkayA. ...but yeah. [0:39:05; transcript page 18-19]

(Exhibit B, sealed declaration ofKaren Chilina, Exhibit A,transcript of January 27, 2011, interview ofJason Greenwell, part 2,pagel8-19 and Exhibit B, edited CD containing this quotation.)

Detective Zuchelli testified at the preliminary hearing that Jason

Greenwell told him the victim was alive and moving at the Chevron station.

As stated by Detective Zuchelli at the preliminary hearing:

Q. Did he tell you if Dystiny Myers was alive when they gotto the Chevron or Shell Station at Pismo?

A. Yes, he did.Q. What did he tell you?A. He told me that he could feel movement in the back of the

truck and he felt it was her moving. (PHT 193.)

Q. (By Attorney Carrasco) Mr. Greenwell did (he) tell youthat the victim was making noise prior to him opening thewindow to communicate with Mr. Miller; correct?A. I seem to remember it was mainly movement. (PHT 197-198.)Q. And what was it that Mr. Greenwell told you was takingplace in the back of the truck?A. He - - He told - in the initial interview he told me that the

17

victim was making noises and he opened the window to letMr. Miller know that the police were there.Q. Okay. Did you follow up with any further questions as towhat he meant by "noise," whether it would be cries for helpor a groan or anything of that nature?A. I don't recall. (PHT 199-200.)

However, during the secret interview on January 27, 2011, Jason

Greenwell told Detective Zuchelli there was no noise from the back of the

truck and he did not know if the movement he felt was Cody Miller or the

victim. As stated to Detective Zuchelli at the interview by Jason Greenwell:

Q. Okay, so Jacob got out and pumped the gas? Okay, andthen what happened?A. Jacob pumped the gas and then he went in and that's whenI saw ... as soon as they went in, I saw two cops pull into theparking lot.Q. Okay.A. By that time ... at that time I noticed the truck wasmoving basically, like, like, um, so I looked in the back and Ididn't know if it was ... I thought it was her, Dystinymoving, but I don't know if it was Cody or ... it was one ofthem anyway. And I told him ...Q. What was he doing in the back there?A. He was moving around. I can't... I couldn't really seebut...

Q. Was he lying next to her?A. Yeah.

Q. On top ofher, or?A. Pretty much on top of her but...Q. What do you mean on top of her?A. Like right next to her, but I don't know, but like I said, itwas kind ofhard to to really see cuz there was like a bigbarrel in the way and I don't know. I never really looked backthere for too long, just kind of glanced...Q. Okay. So then when you ... did you open the windowand say anything to him?A. Yeah, I told him to ... to shut the fuck up basically, stopmoving around.

18

Q. Did you tell him why?A Huh?

Q. Did you tell him why?A. Yeah, I told him, "the cops are here."Q. Did he say anything back to you?A. No.

Q. Okay, did you hear anything besides the moving...you saw him moving, but did you hear anything? Anysound from the back?

A. No, not a thing. (Transcript, [52:37-52:59].)(Exhibit B, sealed declaration of Karen Chilina, Exhibit A,

transcript of January 27, 2011, interview of Jason Greenwell, part 2, page25-26, and Exhibit B, edited CD containing this quotation.)

Finally, Jason Greenwell stated during his secret interview on

January 27, 2011, that during the attack on Dystiny Myers, Cody Miller ran

out of duct tape in the bedroom and only then began using a rope to tie the

victim. (Exhibit B, sealed declaration of Karen Chilina, Exhibit A,

transcript of January 27, 2011, interview of Jason Greenwell, part 2, page

11.) A photograph from the autopsy demonstrate that the tightly knotted

sweat pants around the victim's neck are under the duct tape and proves the

strangulation occurred before the victim was wrapped in duct tape and

impeaches the statements of the other defendants that she was alive on the

trip to Santa Margarita. (See Exhibit H, sealed autopsy photograph # 126 .)

The pathologist who performed the autopsy, Dr. Gary Walter, did not

testify at the preliminary hearing. San Luis Obispo County Sheriff Stuart

McDonald testified on his behalf but was not qualified to render any

opinions and was evasive concerning the time of death and the ligature

around the victim's neck. (PHT 87, 92-93,101.)

Deputy McDonald testified that Dr. Walter stated that Dystiny

Myers was asphyxiated within approximately four minutes by sweat pants

19

that were tightly bound around her neck and cloth fabric glove stuffed into

her mouth. (PHT 83, 89, 92-93, 101.)

When questioned specifically about the time of death and the tightly

knotted sweat pant ligature, Deputy McDonald became evasive and stated:

Q. Did the pathologist give you any statements as to whetheror not that sweatshirt was the cause of asphyxiation?A. He talked about that being one of the elements that heconsidered; however, we didn't discuss it - - in great detail.(PHT 101, L 20-23.)

When specifically asked by Harold Mesick, the attorney for Jason

Greenwell, if he "or the doctor were able to determine the time of death,"

Deputy McDonald only responded, "Not precisely." (PHT 87, L 14-16.)

When asked again for an approximate time of death by Raymond Allen, the

attorney for Ty Michael Hill, Deputy McDonald again evaded the question

and stated, "I don't recall that information off the top of my head."

(PHT 87.) However, Deputy McDonald did stated that from the time there

was restriction in the airway to the time of death, would have been

approximately four minutes. (PHT 92-93.)

The testimony of Deputy McDonald demonstrates the essential need

for an evidentiary hearing. If Dr. Walter testifies that the scientific

evidence from the autopsy proved that Jason Greenwell was correct and

Dystiny Myers was strangled to death by the sweat pants in the bedroom,

the methamphetamine-hazed opinions of the other defendants that she was

alive in the truck would have had no weight at the preliminary hearing.

There would be no reliable evidence or probable cause to support the

special circumstances.

San Luis Obispo County Sheriff Detective Patrick Zuchelli was

present during at least three interviews of the defendant and apparently

20

knew his interview of Jason Greenwell conducted on January 27, 2011, had

not been disclosed to the defendant. However, at the preliminary hearing he

admitted being present during only the two interviews of Jason Greenwell

that were conducted shortly after he was taken into custody for the murder

of Dystiny Myers. The January 27, 2011, interview with Jason Greenwell

was never mentioned at the preliminary hearing. As Detective Zuchelli

stated at the preliminary hearing when questioned by the prosecutor:

Q. And did you participate in the investigation into themurder of Dystiny Myers?A. Yes, I did.A. And in doing so, did you have occasion to speak with oneof the defendants in this case, Jason Greenwell?A. Yes, I did.Q. And how many times did you speak with Mr. Greenwell?A. I spokewith him on two consecutive days, the 26th andthe 27th. (PHT 183, L 19-27.)

Detective Zuchelli was specifically asked by attorney Harold

Mesick, who was present with his client when he was interviewed for the

third time by Detective Zuchelli on January 27, 2011, if he had interviewed

his client three times. Detective Zuchelli responded as follows:

Q. And you interviewed him three times?A. Two times.

Q. Two times. I'm sorry. On your second interview, did heappear remorseful?A. Yes. (PHT 197.)

It is unknown why Detective Zuchelli refused to admit that he was

present and questioned Jason Greenwell at three interviews. There must be

an evidentiary hearing to discovery whether or not the magistrate was

intentionally misled or if this conduct amounts to prosecutorial misconduct.

21

Ill

PETITIONER WAS DENIED SUBSTANTIAL RIGHTS

AND AN EVIDENTIARY HEARING IS REQUIRED

The newly disclosed statements of Jason Greenwell provided the

first opinion from a defendant that Dystiny Myers was killed in the bedroom

of the house at 311 Mars Court. The failure of the prosecution to disclose

this and other material exculpatory statements of Jason Greenwell and its

presentation ofmisleading and deceptivepreliminaryhearing testimony

combined to trick the defendant and deny him the substantial rights to cross

examine witnesses, present an affirmative defense, negate elements of the

special circumstance and be represented by competent rather than

intentionally misled counsel.

The wrongs suffered by the defendant require an evidentiary hearing

where the defendant can establish additional "materiality," before

respondent court rules on the motion, through the testimony of Dr. Gary

Walter, the pathologist who performedthe autopsy in this case, Jason

Greenwell, Detective Patrick Zuchelli and District Attorney Investigator

Isabel Funaro and others that Dystiny Myers was strangled by a ligature

and cloth glove in the bedroom at 311 Mars Court. (People v. Pompa-Ortiz

(1980) 27 Cal.3d 519, 523 [right to a public preliminary hearing was a

substantial right and its denial required setting aside the information];

People v. Coleman (1988) 46 Cal.3d749 [defendant denied competent

representation]; People v. Mackey (19Z5) 176 Cal.App.3d 177 [right to

cross examination denied when prosecutionfailed to disclose witness

statement and that witness had been hypnotized]; Stanton v. Superior Court

(1994) 193 Cal.App.3d 265, 269 [defendant denied evidence material to

cross examination of witness]; Merrillv. Superior Court (1994) 27

22

CaLApp. 4th 1586, 1595-1596 [defendant denied material exculpatory

eyewitness who said the defendant was not the killer].)

The defendant is entitled to an evidentiary hearing to establish facts

outside the preliminary hearing record that demonstrate materiality and

entitle himto relief. (Stanton v. Superior Court, supra, 193 Cal.App.3d 265,

269.) The trial courtthen "considers the materiality of the non-disclosed

information and determines its effect on probable cause and the legality of

the commitment proceedings." (People v. Duncan (2000) 78 Cal.App.4th

765, 772-773.) In this case, the "materiality" was determined before

petitioner had the opportunity to establish additional material facts at an

evidentiary hearing.

In Stanton v. Superior Court, supra, 193 Cal.App.3d 265, the

defendant was denied the substantial right of effective cross-examination

when interviews of material witnesses to a traffic accident were not

disclosed to the defense prior to the preliminaryhearing. Recognizing the

complexity involved when dealing with the issue of cross examination, the

court in Stanton granted relief and noted that, "Each of the eyewitnesses

could have been vigorously cross-examined using the contents of the report

withheld by the prosecution" ... "Consequently, the undisclosed report

contained exculpatory evidence on the focal issue before the magistrate and

would have served the dual purpose of impeaching the prosecution's case

and establishing an affirmative defense to the gross negligence." (Stanton

vs. Superior Court, supra, 193 Cal.App.3d at 273.) The Court further

stated, "Nondisclosure of evidence impeaching eyewitnesses on material

issues is the deprivation of a substantial right under Jennings, (citation

omitted.) The defense was unquestionably handicapped by the prosecutorial

error." (Ibid.)

23

In Merrill v. Superior Court (1994) 27 Cal.App. 4th 1586, 1595-

1596, the trial court found at a post-conviction habeas corpus evidentiary

hearing that the prosecution had withheld substantial material evidence of

guilt, an eyewitness who stated the defendant was not the killer. The

prosecution did not oppose a new trial, and the defendant filed a motion for

a new preliminary hearing. The motion was denied and the defendant filed

a writ with the court of appeal. While the Court of Appeal found no abuse

of discretion when the trial court reviewed the preliminary hearing evidence

in light of the undisputed exculpatory evidence, it implied the lower court

should have decided the case differently and specifically noted that the

withheld evidence was substantial and material. (Id. at 1595.)

The principles ofBrady and its progeny are clearly applicable when

material exculpatory evidence is denied to a defendant prior to a

preliminary hearing. (Merrill v. Superior Court, supra, 27 Cal.App. 4th

1586, 1595-1596.) The California Supreme Court has held that "evidence

is material if there is a reasonable probability its disclosure would have

altered the trial results."(People v. Zambrano (2007) 41 CaUth 1082,

1133.) The requisite "reasonable probability" is a chance great enough,

under the totality of the circumstances, to "undermine our confidence in the

outcome," and is measured by an objective standard. (In re Sassounian

(1995) 9 CaUth 535, 546.)

The undisclosed statements of Jason Greenwell were material and

"undermined confidence in the outcome of the proceedings" by providing

direct evidence the victim was killed in the bedroom of 311 Mars Court and

the special circumstance of kidnaping and torture were not true, especially

when considering the physical evidence and the placement of the duct tape

over this ligature on the victim's neck. With this evidence to support the

24

requisite Penal Code § 866(a) offer of proof, competent cross examination

of Detective Zuchelli, Deputy McDonald and others, and an affirmative

defense presented through the testimony of Dr. Walter and others would

have combined to defeat the special circumstance allegations at the

preliminary hearing.

However, the issue presented is not simply whether or not sufficient

probable cause remains to support the special circumstances after the

statements of Jason Greenwell are weighed and considered by the trial

court, as in Merrill. The answer is yes, there remained sufficient probable

cause after the secret statement of Jason Greenwell was considered by

respondent court. However, the defendant was clearly wronged by the

conduct of the prosecution and denied the right to effectively cross-

examine Detective Zuchelli, Deputy McDonald and others and, of most

importance, present an affirmative defense through Dr. Gary Walter and

other witnesses. Clearly, Dr. Walter would have known the details

concerning the time of death that Deputy Stewart could not recall, and

answer definitive questions concerning the placement, nature and impact of

the glove and ligature. An evidentiary hearingwill establish that no reliable

evidence, certainly not the contradictory statements of the defendants,

supports a finding of probable cause for the special circumstances.

This problem was not created by the defendant but by the intentional

decision by the prosecutionto withhold material exculpatory evidence and

manipulate the then marginal and now obviously unsustainable special

circumstance allegations to its advantage. The defendant was entitled to the

exculpatory statements of Jason Greenwell without any demand for

discovery. (Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83

S.Ct. 1194; Izazaga v. Superior Court (1991) 54 Cal.3d 356.) In addition,

25

California Penal Code § 1054 (b) requires the prosecution to disclose the

statements of all defendant and §1054 (e) requires the disclosure of all

exculpatory evidence. The disclosure of the statements of Jason Greenwell

would not have delayed the preliminary hearing or deprived the prosecution

of any constitutional right. (See Galindo v. Superior Court (2010) 50

CaUth 1.)

The conduct of the prosecution intentionally interfered with the

defendant's Sixth Amendment right to competent counsel. Time ofdeath

was a key fact that would either establish or rebut the special circumstances.

Competent counsel would have taken the facts from the secret interview of

Jason Greenwell and, through cross examination and an affirmative

defense, established the victim died quickly in the bedroom. If

demonstrated by facts at the evidentiary hearing, the conduct in this case

could rise to the level of a Sixth Amendment violation of the defendant's

rights by the prosecution. (See Boulas v. Superior Court (1986) 188

Cal.App.3d 422, 430 [court may fashion remedy to correct wrong for 6th

Amendment violation]; Barber v. Municipal Court (1979) 24 Cal.3d 742

[same]; Maine v. Molton (1985) 474 U.S. 159 [106 S.Ct. 477; 88 L.Ed.2d

48 [same]; UnitedStates v. Morrison (1981) 449 U.S. 361 [101 S.Ct. 665;

66 L.Ed.2d 564] [same].)

It is unknown what Dr. Walter will specifically say when thoroughly

examined by the defendant at the evidentiary hearing. However, it was

mischief by the prosecution that denied the defendant the right to

effectively cross examine Deputy McDonald and present Dr. Walter as an

affirmative defense witness at the preliminaryhearing. The prosecution

should not benefit from this wrong.

26

IV

CONCLUSION

In a capital case, because of the qualitative difference between the

death penalty and a sentence of life, special scrutiny of the procedures

used is required to avoid arbitrariness and unfairness. (Gregg v.

Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 913, 96 S.Ct. 2909]; Woodson v.

North Carolina (1976) 428 U.S. 280, 305 [49 L.Ed.2d 944, 26 S.Ct. 2978].)

As the United States Supreme Court stated in Gregg, supra, 49 L.Ed.2d at

882, "When a defendant's life is at stake, the Court has been particularly

sensitive to insure that every safeguard is observed."

The defendant, through no fault of his own, was deprived of a fair

and preliminary hearing and competent representation. While the statement

of Jason Greenwell is exculpatory and exonerating, it is insufficient alone to

compel a new preliminary hearing and remedy the harm done to petitioner.

However, it is clear that this non-disclosed statement of Jason Greenwell

and the evasive testimony of the prosecution's witnesses denied petitioner

substantial rights at the preliminary hearing.

The only just remedy is to allow petitioner to establish "materiality"

at an evidentiary hearing before respondentcourt rules on his motion to

dismiss the special circumstances. Respondentcourt's ruling must be

reversed and petitioner must be granted the opportunity to conduct a

complete evidentiary hearing.

Dated: February 15, 2012 Respectfully submitted,

27

William Roy McLennanRobert Thomas Allen

Attorneys for Petitioner

PROOF OF SERVICE(CCP § 1013(a) AND 2015.5)

I am employed in the County of San Luis Obispo, State of California. I am over the ageof 18 and not a party to the within action; my business address is 1022 Mill Street, San LuisObispo, CA 93401.

On February 15, 2012,1 served a copy of the attached "PETITION FOR REVIEW INA CAPITAL CASE" on the interested parties in this action by placing same in a sealedenvelope, addressed as follows:

Honorable Barry LaBarberaSan Luis Obispo Superior Court1035 Palm StreetSan Luis Obispo, CA 93401

The Honorable Arthur GilbertPresiding Justice and Associate JusticesDivision 6, Second Appellate District200 E. Santa Clara StreetVentura, CA 93001

Gerald C. Carrasco, Esq.Attorney at Law1119 Palm StreetSan Luis Obispo, CA 93401

Michael R. Cummins, Esq.Attorney at Law3220 South Higuera, Suite 325San Luis Obispo, CA 93401

Timothy S. CovelloChiefDeputy District AttorneyOffice of the District AttorneyCounty of San Luis ObispoCounty Government Center, 4th FloorSan Luis Obispo, CA 93408

Attorney General Kamala HarrisOffice of the Attorney General300 South Spring Street, 5th FloorLos Angeles, CA 90013

Harold V. Mesick, Esq.Attorney at LawP.O. Box 23San Luis Obispo, CA 93406

Gael G. Mueller, Esq.Mueller & Mueller867 Pacific Street, Suite 230San Luis Obispo, CA 93401

^ BY MAIL - I caused such envelope with postage thereon fully prepaid to be placed inthe U.S. mail at San Luis Obispo, California. I am readily familiar with the firm's practiceof collection and processing correspondence for mailing. Under that practice, it isdeposited with the U.S. Postal Service on that same day with postage thereon fullyprepaid, at San Luis Obispo, California, in the ordinary course of business. I am awarethat on motion of the party served, service is presumed invalid if the postal cancellationdate or postage meter date is more than one day after the date of deposit for mailing inaffidavit.

I declare under penalty of perjury under the laws of the state of California and the UnitedStates of America that the foregoing is true and correct and that this declaration was executed onFebruary 15,2012, at San Luis Obispo, California.

,-~ ip^/^CAVREN tiHILINA

28

Exhibit A

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION: 6

DATE: February 14,2012

William R McLennan

McLennan Law

1022 Mill St., "E"San Luis Obispo, CA 93401

TY MICHAEL HILL,Petitioner, .v.

SUPERIOR COURT, COUNTY OF SAN LUIS OBISPO,Respondent;THE PEOPLE,Real Partyin Interest.

B238833

San Luis Obispo County No. F452204

THE COURT:

Petition forwrit ofmandate/prohibition is denied.

cc: File

EXHIBIT A