Date: February 25, 2016


SANTA ANA, Calif. – The Orange County District Attorney (OCDA) will appeal a ruling today which granted an inmate’s writ of habeas corpus to overturn a conviction for the defendant’s part in the murder of a pregnant woman and her unborn child. Henry Rodriguez, 39, Anaheim, was twice found guilty of murdering the pregnant girlfriend and unborn child of his friend, Richard Tovar, and in his second trial was sentenced to 40 years to life in state prison. The defendant filed a writ of habeas corpus to request sealed records regarding another inmate’s prior cooperation as an informing witness. The trial court, in March 2005, had granted in part Orange County Sheriff’s Department’s (OCSD) claim of official records privilege concerning those records, resulting in most of the inmate’s records being sealed; a portion of the records, however, were provided to the defendant in summary form.

Today, Feb. 25, 2016, the Honorable Thomas M. Goethals ruled that the previously-sealed inmate records had been wrongfully withheld from the defendant at the time of trial, and therefore the court granted Rodriguez’s writ for habeas corpus and overturned the conviction, which makes the defendant eligible for a new trial. The OCDA will file an appeal on this ruling, and has 60 days to do so.

Circumstances of the 1998 Murder (Case #98NF2206)
On July 17, 1998, Richard Tovar, then-21, Santa Ana, murdered his 8-month pregnant girlfriend, 20-year-old Jeanette Espeleta, to avoid paying child support. Henry Rodriguez, then-22, Santa Ana, and Nick Jeffrey Gray, then-20, Santa Ana, took part in the murder.

The information on the murder of Espeleta and her unborn child can be found in the section below, titled “Court Of Appeal Opinion And Its Ruling After Second Trial.”

On July 21, 1998, Tovar was interviewed by the Fullerton Police Department (FPD), who investigated the murders and was OCDA’s law enforcement partner for this case. During the investigation, Tovar along with Rodriguez and Gray were found to be involved in the murders and were all arrested and charged.

Rodriguez’s First Trial
On July 30, 1998, Tovar, Rodriguez, and Gray were charged with two felony counts of murder for the death of Espeleta and her unborn baby. The three defendants’ cases were later severed. Tovar and Rodriguez were tried for the felony murder; Gray pleaded guilty to manslaughter in exchange for testifying truthfully against Tovar and Rodriguez.

In late May or early June 1999, while in custody, Rodriguez began conversing with inmate Michael Garrity, who was near him.

On June 4, 1999, Garrity wrote a note to OCSD deputies, who were not OCDA’s law enforcement partner in Rodriguez’s case. Garrity told them that Rodriguez was talking about the crime and asked if anyone was interested in the information. The note was then passed on to FPD. Three days later, on June 7, 1999, Garrity spoke to FPD investigators about what Rodriguez was saying about the murder.

On June 15, 1999, and again on Sept. 16, 1999, Garrity spoke to FPD again to provide additional information regarding Rodriguez’s case.

The information Garrity provided law enforcement was turned over to the Defense by then-Senior Assistant District Attorney Walt Schwarm of the Homicide Unit, who is currently an Orange County Superior Court Judge.

On July 27, 2000, the jury convicted Rodriguez of the two felony counts of murder.

On June 30, 2003, the Court of Appeal reversed that conviction, holding that Rodriguez’s taped confession should have been suppressed because his waiver of Miranda rights was involuntary.

In an unpublished opinion of the Court of Appeal, Fourth Appellate District, Division Three, California, the Court (Justices William Rylaarsdam, David Sills, and Kathleen O’Leary) reversed the conviction of first degree murder, second degree murder, and conspiracy to commit murder. The Court remanded the case for a new trial stating that Defendant’s confession should have been suppressed, saying that “his convictions are supported by substantial evidence.” The California Attorney General handled the appeal.

It should be noted that Rodriguez testified at his first trial and admitted that he helped Tovar dispose of the body after she was dead. This was contradicted by evidence that he was part of the planning, including testimony by his girlfriend.

Co-conspirator Tovar was convicted and his conviction affirmed in a separate case. Co-defendant Gray pleaded guilty to manslaughter and agreed to testify truthfully.

Direct Excerpts From the Opinion To Reverse the First Trial Conviction
The following are direct excerpts; the entire opinion is available from the OCDA by request. The defendant was interviewed twice; on July 22, 1998, and July 27, 1998. The Court found that the defendant’s July 27, 1998, interview should have been suppressed because “he was subjected to a custodial interrogation without being advised of his rights under Miranda and, once advised of those rights, he did not knowingly and intelligently waive them.”

“The first interview, which lasted approximately two hours, took place at the police station after defendant voluntarily came in to speak with the detectives. He was not advised that he was free to leave, nor was he Mirandized. The detectives questioned defendant about his relationship with Tovar and asked whether he had gone out on the boat with Tovar and Gray. Although he initially denied knowing anything about the boat, defendant eventually admitted he was with Tovar when he rented the boat, but claimed he never went out on it. At one point the detectives threatened to arrest defendant for lying to them during the investigation and told him he was “facing big trouble” if he had anything to do with the victim’s disappearance, but defendant stuck with his story. At the end of the interview, he asked if he “could get going” and indicated that he had left his younger brother waiting out front. The detectives allowed defendant to leave after they verified his story with Tune.”

Calling it a “close question,” the Court held that the “defendant’s un-Mirandized statements were coerced and that the subsequent implied waiver of his rights was not voluntary.”

“In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.

“Defendant argues there was no evidence of any agreement or evidence that he had the specific intent to conspire or to commit murder. To the contrary, substantial evidence, albeit circumstantial, existed to support defendant’s conviction for conspiracy to commit murder.”

Rodriguez’s Second Trial
In early 2005, Rodriguez’s defense counsel issued five subpoenas requesting inmate records from OCSD.

On March 21, 2005, County Counsel filed a motion to quash Rodriguez’s subpoenas.

On March 25, 2005, at the hearing on the motion to quash the subpoenas, because no records existed for some of the requested documents Judge Fasel quashed three of subpoenas outright. Judge Fasel found Rodriguez’s attorney had made a prima facie showing regarding the two remaining subpoenas and reviewed these subpoenas in camera with County Counsel and the OCSD custodian of records. Neither the defense attorney nor any member of the prosecution team was present during the in camera hearing.

As part of the March 25, 2005, in camera hearing, Judge Fasel had the court reporter transcribe a verbatim record of everything that was said. At the end of the hearing, Judge Fasel sealed the transcript of the in camera proceedings. Until June 25, 2015, when the transcripts were unsealed, neither the prosecution team nor defense was aware of what Judge Fasel had decided regarding the last two subpoenas. According to the now unsealed transcript of the in camera hearing, while reviewing the TRED records provided by the OCSD, initially Judge Fasel stated, “I think this is all discoverable.”

However, six pages later in the transcript, Judge Fasel reversed himself and struck his earlier finding. Judge Fasel stated that that after re-reading the subpoena filed by the defense, he then found that not all of the TRED records were responsive to Defense’s subpoena. Judge Fasel ordered that only a portion of the TRED records should be disclosed. He ordered OCSD to prepare a summary of that portion of the records and that the summary be delivered to Rodriguez’s attorney. During the evidentiary hearing in 2016, both the prosecution and Rodriguez’s attorney stipulated that Judge Fasel only ordered a portion of the TRED records released, and that the summary of the portion of the records was received by defense on or about April 1, 2005.

On Jan. 4, 2006, and Jan. 5, 2006, an extensive hearing was held as to whether Garrity would be able to testify about statements Rodriguez made in custody. During this Massiah hearing Judge Fasel found that there was insufficient evidence to support Defendant’s claim and Judge Fasel specifically found that: 1) Garrity was not acting as an agent of the government during his interactions with Rodriguez, and 2) that Garrity was only a passive listener when Rodriguez voluntarily admitted his involvement in the murder; therefore, Judge Fasel ruled that the jailhouse confession was admissible at trial.

On Jan. 23, 2006, Garrity testified in Rodriguez’s second jury trial, relating only to the conversation that took place before June 7, 1999. Rodriguez’s second trial was prosecuted by then-Senior Deputy District Attorney Cameron Talley of the Homicide Unit (now retired).

On Jan. 30, 2006, Rodriguez was convicted of one felony count of first degree murder, one felony count of second degree murder, and one felony count of conspiracy to commit murder.

On March 17, 2006, Judge Fasel sentenced Rodriguez to 40 years to life in state prison.

On Sept. 27, 2007, the Court of Appeal affirmed the conviction, specifically holding that Judge Fasel had rightly denied the defendant’s Massiah motion.

Court Of Appeal Opinion and Its Ruling After Second Trial
In another unpublished opinion, the Court of Appeal, Fourth Appellate District, Division Three, California in (2007) 2800185, the same three justices, who had previously reversed the conviction in 2003, affirmed the defendant’s conviction of the same charges as the first trial. Judge Fasel presided over the trial and sentenced the defendant to 40 years to life in state prison for the first and second degree murders. The California Attorney General handled the appeal.

The following are direct excerpts and outlines the circumstances of the 1998 murder (Case #98NF2206); the entire opinion is available from the OCDA by request:

“Espeleta was last seen alive on July 17, 1998 when she was eight-months pregnant. Less than a month before she disappeared, in initiating the process to collect child support, she had named Tovar as her unborn child’s father. Another woman had previously filed a claim for support naming Tovar as the father. Two days before the murder, defendant’s girlfriend, Kari Tune, lent her car to Tovar. Defendant asked if he could have the windows tinted, and she agreed, believing it was a gift from him. It was Tovar, however, who actually paid. The next day defendant and Tovar went to a watercraft shop where Tovar rented a boat. The owner of the shop spent about 2 hours going over the boat with defendant and Tovar; normally the process takes about 20 minutes. Defendant and Tovar were particularly concerned about the expired license tags on the boat trailer and nonfunctioning signal and brake lights. They also requested a boat cover. Defendant asked questions about the boat’s lights for nighttime operation. The men would not leave with the boat until all problems had been corrected. They stored the boat at Nicholas Gray’s house.

“The night before the murder, defendant stayed at Tune’s house. The next morning, defendant drove Tune to work so he could borrow her car. Around 8:30 a.m., he called Tune at work and was adamant she should not let Tovar borrow her car because Tovar was going to use it “to do something stupid”; he was going to hurt a pregnant girl. While Tune and defendant were trying to think of an excuse to give Tovar if he asked to borrow the car, Tune suggested they tell him the car had been impounded. Defendant then hid the car in his parent’s garage.

“That same morning, Tovar and defendant went to Home Depot where they bought some carpet cleaner, a tarp, and some “Quick Link” chain fasteners. Espeleta worked at a bank in Santa Ana. Around 2:00 p.m. on July 17, while walking to lunch with a coworker, Espeleta exclaimed, “Oh, my god. That’s my baby’s father. I have to go.” The coworker saw a dark-color sports utility vehicle pass by; looking anxious and shocked, Espeleta said she had to leave and ran towards her own car. A couple of hours later, defendant and Tune were on the way to pick up Tune’s son from the babysitter when defendant received a page; he “mumbled 187” and started “acting very nervous, very excited,” and “[f]rantic].” He was “kind of mumbling to himself saying that they are just messing around, they are not serious.” Once they returned to Tune’s home, defendant made a phone call. When Tovar arrived at the house shortly thereafter, defendant went outside to talk to him. Tune heard Tovar telling defendant, “Hurry up, come on, what are you doing, hurry up, come on, let’s go, come on.” Defendant told Tune he had to leave, despite the fact they had made plans for the evening. Tune went without defendant. When she arrived and opened the trunk of her car to leave her purse inside, she discovered a large black plastic tarp, which she threw out into the parking lot.

“The afternoon of the killing, Tovar arrived at Gray’s house in Espeleta’s car; her body was in the front seat. Gray held the boat cover over the car while Tovar put the body into the trunk. On Tovar’s instructions, Gray paged defendant with the message “187.” When defendant called him in response, Gray told him, “Richard said to be ready.” He also said “she was in the car” and was dead. Defendant said “she is dead[ ]” and acknowledged he understood what “be ready” meant. Gray and Tovar picked up defendant at Tune’s house to go to the marina. Tovar drove Espeleta’s car; although Gray had planned to drive Tovar’s S.U.V., defendant insisted he drive because Gray had no driver’s license. When they arrived, they decided not to put the body in the boat because there were too many people around. Instead they went to a more private area where Tovar wrapped the body in a black plastic tarp. Gray and Tovar put it in the boat while defendant stood guard.

“All three put the cover on the boat to hide the body and then returned to the harbor. Gray took a chain and some rusty 25–pound metal exercise weights from the S.U.V. and put them in the boat; they looked like the same type of weights he had seen at defendant’s home. When the boat was out at sea, Tovar wrapped the body with weights and the chain and sealed the chain with the Quick Link fasteners. The three of them pushed the body into the water. Before the boat was returned, Gray cleaned it to remove blood spots. The boat owner testified that when the boat was returned, it was spotless; that was unusual. In a police search of the boat, packing for the Quick Link fasteners was found. A search of the trunk of Tune’s car uncovered packages of Quick Link fasteners identical to those found in the boat.

“Tovar later told Gray he drove to Tijuana and burned Espeleta’s car. Multiple searches were conducted in the area where Espeleta’s body had been dumped into the ocean, but no remains were ever recovered.

“Two days after the killing when Tune and defendant were watching television news, he started crying and saying he wanted to tell her something so she did not learn about it on the news. He said he had gone with Tovar to dump the body. In the next several days he told her Tovar had shot Espeleta. He also explained how they had disposed of the body in the ocean after wrapping her in a tarp and weighing her down.

“Defendant asked Tune to provide an alibi for him, which she did when initially asked by the police.

“In a police interview, defendant stated he had gone to Home Depot with Tovar to buy carpet cleaner, a drop cloth, and chain links. He also said he knew Tovar had gotten a woman pregnant. He admitted he had helped Tovar pick up a boat, although he denied going out on it. At the rental shop, he told Tovar a brake light wasn’t working; he did not want him to get a ticket. He also admitted police might find his fingerprints on the steering wheel because he had touched it when he checked out the boat.

“Defendant appeals on several grounds, claiming a retrial after we reversed his first conviction constituted double jeopardy, admission of testimony by a jailhouse informant violated his right to counsel, and it was error to deny his motion for mistrial on the ground of group bias for challenges to two African–American potential jurors. He argues admission of testimony of one of the participants in the crime was inadmissible hearsay and violated his rights under the confrontation clause. He also complains of the exclusion of purported exculpatory testimony. He asserts there was insufficient evidence to support conviction, challenges several jury instructions, claims prosecutorial misconduct, and criticizes his consecutive sentences. Finding none of these arguments meritorious, we affirm.”

Habeas Corpus Petition
In July 2014, Rodriguez’s defense counsel filed a writ of habeas corpus alleging that: a 30-year informants program exists, and that a Massiah violation occurred because Garrity was an informant for law enforcement when he spoke to Rodriguez about the murder. They requested to litigate that Garrity was an informant and due to the fact that they didn’t have records, Rodriguez’s second murder conviction should be vacated.

On Oct. 15, 2014, the OCDA filed an informal response with the court arguing that the defendant was, via his petition for writ of habeas corpus seeking to re-litigate issues already. The People responded that in 2005, Judge Fasel reviewed records, which are now sealed per County Counsel’s assertion of official privilege, under California Evidence Code Section 1040, and ruled that the records were not relevant. He also ruled that there was no evidence that Garrity was an informant at the time he spoke to Rodriguez.

The People’s Filed Brief Following the Habeas Evidentiary Hearing
The People filed a brief on Feb. 22, 2016, and put forth several issues to substantiate its position:

Issue one: whether the OCSD Jail Unit was part of the “prosecution team” as defined by the California Supreme Court.

Issue two: if the OCSD Staff is part of the prosecution team, whether the information in the TRED records are cumulative to information Defendant possessed at the time of trial.

Issue three: whether Court Exhibit #4 constituted “Brady evidence” that was required to be disclosed to the defendant before trial.

Issue four: whether additional information that Michael Garrity had acted as an informant has any effect on Judge Fasel’s previous finding that prior to June 7, 1999, Michael Garrity acted as a “listening post” when he received information from defendant Rodriguez.

• OCSD were not members of the “prosecution team” under the California Supreme Court case People v. Barnett:

In order to determine if a government agency is part of the prosecution team, the California Supreme Court requires a court to analyze the following three factors: “ ‘(1) whether the party with knowledge of the information is acting on the government’s “behalf” or is under its “control”; (2) the extent to which state and federal governments are part of a “team,” are participating in a “joint investigation” or are sharing resources; and (3) whether the entity charged with constructive possession has “ready access” to the evidence.’ ”

None of the three factors were present in this case regarding the OCSD.

“The People contend given that Petitioner’s claim is founded on the argument that failure to disclose the TRED records was a “Brady” violation, his petition for habeas relief should have and must be denied. Under clearly established California Supreme Court precedent, the Orange County Sheriff’s Department was not part of the “prosecution team.” Because the Sheriff’s department was not a member of the Rodriguez Prosecution Team, the prosecution did not constructively possess the TRED records. Thus, this is no “Brady” violation.”

• The information contained in the TRED records was cumulative to the information the defendant already possessed.

“The TRED records contain five areas of information: 1) Garrity being moved in the jail after inmates suspected that he was giving information to law enforcement; 2) Garrity giving information to the Anaheim Police Department regarding Juan Huizar; 3) Garrity disclosing information about drugs in the jail and the criminal conduct of other inmates; 4) Garrity giving information regarding Henry Rodriguez to the Fullerton Police Department; 5) Garrity being moved to isolated housing after his cellmate went through his file and told Henry Rodriguez that Garrity was informing on him. Each of these areas is covered by additional evidence petitioner possessed before trial.”

Prior to the second trial, Rodriguez received significant amounts of discovery in all five categories. “Based on the significant amount of discovery that Defendant received before trial regarding the issues discussed above, including Garrity’s movement in the jail, informing on drugs in the jail and other crimes, providing information on Juan Huizar’s case and informing on Henry Rodriguez’s case, the information contained in the TRED records are cumulative. Given that these records do not provide any substantially new areas of information, it cannot be said that they constitute material evidence that would have altered the verdict.”

• Court Exhibit #4 is not “Brady evidence” and was not required to be disclosed to defendant before trial.

Court Exhibit #4 contains a copy of handwritten notes of an opinion of a member regarding the OCDA regarding court documents that were placed in the Orange County Informant Index file for Michael Garrity.

“It is anticipated that in addition to his claim regarding the TRED records, Petitioner will argue that he was entitled to the “Brady” information contained in Exhibit #4. This argument is both legally incorrect and misleading. Although it has been repeatedly presented in court, it still bears repeating, the documents that Court Exhibit #4 are referring to were discovered to defendant well before the second trial. These items are bates stamped at 3560 – 3665. The documents discovered defense contained a letter from Sergeant Fouste to Garrity’s attorney dated November 4, 1999, stating that Garrity had provided information in “several matters of Jail Security.” Additionally, the documents included a copy of a motion that Garrity’s attorney filed requesting a drug treatment program and several court documents related to the motion.

“The fact that Petitioner received these documents referenced in the handwritten note is beyond question. In fact, it is these documents that were the basis for Defense counsel’s SDTs that where litigated by Defendant and County Counsel before Judge Fasel on March 25, 2005. To claim that Defendant lacked information showing that Garrity had received a “benefit” from the Orange County Sheriff’s Department is not only demonstrably false, it is contradicted by Defense counsel’s statements at the March 2005 hearing, Defendant’s Massiah motion on January 5, 2006, and Defense counsel’s cross examination of Garrity at trial on January 23, 2006.

This note contained only opinions about underlying documents that were previously disclosed to the defense. In this case, the petitioner’s claim that Court Exhibit #4 is Brady evidence mirrors the claims made by the defense in Morris. The Morris Court specifically found that this type of “opinion work product” was not Brady evidence and defendants were not entitled to obtain such notes.

• Judge Fasel’s finding that Garrity acted as a “passive listener” would not be altered by any of the additional TRED information:

“The additional information that Michael Garrity had acted as an informant would not have changed Judge Fasel’s previous finding that prior to June 7, 1999, Michael Garrity acted as a “listening post” when he received information from defendant Henry Rodriguez

“Based on the questions asked by Petitioner at the evidentiary hearing it appears that Petitioner intends to argue that the information contained in the TRED records would have changed the outcome of the pre-trial 402 hearing regarding Defense’s Massiah claim, because, Petitioner argues, it would have shown that Garrity was a confidential informant, in other words an agent of the “prosecution team.”

“Under Massiah, once formal charges have been filed and counsel has been appointed or retained, law enforcement may not question a defendant about the charged offense out of counsel’s presence. To do so violates the right to counsel secured by the Sixth and Fourteenth Amendments. (Ibid.) Massiah also can be implicated if law enforcement place an agent in the defendant’s cell to obtain incriminating statements. (See People v. Dement (2011) 53 Cal.4th 1, 33.)

“The California Supreme Court has made it clear, however, that simply placing an agent next to a defendant’s cell to gather information does not violate Massiah. “To prevail on a Massiah claim, a defendant must show that the police and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Citations.] (People v. Coffman (2004) 34 Cal.4th 1, 67, as modified (Oct. 27, 2004) (Citations omitted.) (Coffman).)”

“As Judge Fasel explained, his finding regarding Garrity’s status as a passive listener was based on Garrity’s interview with Fullerton Police Detectives Sosnowski and Fares.

At the request of both parties, Judge Fasel also revie