Opinion
Case No. EDCV 06-0189-JSL (RNB).
August 3, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable J. Spencer Letts, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
PROCEEDINGS
On February 22, 2006, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Pet.") herein. In accordance with the Court's Order Requiring Response to Petition, respondent filed a Motion to Dismiss on March 23, 2006, contending that Grounds Two and Three were unexhausted. In a Minute Order issued on March 27, 2006, the Court found that Ground Three was unexhausted, but that Ground Two was properly exhausted if petitioner intended to frame the issue as he did in his Petition for Review to the California Supreme Court. The Court advised petitioner of his options to convince the Court that Ground Three was exhausted, to withdraw the claim, or to make the requisite showing under Rhines v. Webber for invocation of the stay-and-abeyance procedure. By Motion to Amend, accompanied by an "Amended Petition" ("Amd. Pet."), petitioner thereafter moved to withdraw Ground Three in the pending Petition and confirmed that he intended that his second claim conform to that claim raised in his Petition for Review. In a Minute Order issued on May 4, 2006, the Court granted petitioner's Motion to Amend, denied respondent's Motion to Dismiss, and ordered respondent to file an Answer to Grounds One, Two, and Four. On June 19, 2006, respondent filed an Answer to Petition ("Ans."), along with a supporting memorandum of points and authorities ("Ans. Mem."). On July 17, 2006, petitioner filed a Reply thereto, along with a supporting memorandum of points and authorities ("Reply Mem.").
In his Motion to Amend, petitioner initially indicated his intent to withdraw both Grounds Two and Three of the original Petition. It appeared to the Court that petitioner's motion had crossed in the mail with the Court's March 27, 2006 Minute Order. In a Minute Order dated April 17, 2006, the Court gave petitioner the option of clarifying his intent with respect to Ground Two. On May 1, 2006, petitioner filed a document captioned "Petitioner's Response to the Court's Minute Order Dated April 17, 2006," wherein he indicated his intent to withdraw only Ground Three and to proceed on Ground Two as raised in his Petition for Review.
In submitting his Amended Petition, petitioner included only Grounds One and Four from his original Petition, but renumbered the original fourth claim as "Ground Two." To alleviate the need to refer to both petitions hereinafter, and because the substance of petitioner's two claims in the Amended Petition is the same as the substance of those claims in the original Petition, the Court will cite to petitioner's original Petition (sans Ground Three) as the operative petition.
Thus, this matter now is ready for decision.
PROCEDURAL HISTORY
On March 8, 2004, a Riverside County Superior Court jury found petitioner guilty of second degree murder and assault with a deadly weapon. (See 2 Clerk's Transcript on Appeal ["CT"] 504-05; 4 Reporter's Transcript on Appeal ["RT"] 872-73). The jury also found true the special allegation that during the commission of the murder, petitioner personally used a deadly and dangerous weapon, a metal pipe, within the meaning of Cal. Penal Code §§ 12022(b)(1) and 1198.7(c)(23). (See 2 CT 506; 4 RT 873). On May 4, 2004, the trial court sentenced petitioner to state prison for an indeterminate term of 16 years to life. (See 3 CT 635-36, 690-91; 4 RT 897).Petitioner appealed his conviction and sentence to the California Court of Appeal, raising claims generally corresponding to Grounds One, Two, and Four of the Petition herein. (See Respondent's Notice of Lodgment ["Lodgment"] No. 2). In an unpublished decision issued on June 20, 2005, the California Court of Appeal rejected petitioner's claims and affirmed the judgment. (See Lodgment No. 5). Petitioner's Petition for Rehearing in the California Court of Appeal subsequently was denied without comment. (See Lodgment Nos. 6, 7). Petitioner then filed a Petition for Review with the California Supreme Court raising claims generally corresponding to Grounds One and Two, and joining his co-defendant's Petition for Review, raising a claim generally corresponding to Ground Four of the Petition herein. (See Lodgment No. 8). The California Supreme Court denied the Petition for Review on September 21, 2005, "without prejudice to any relief to which defendant might be entitled after this court decided [sic] People v. Cage, S127373." (See Lodgment No. 10).
Petitioner raised no collateral challenges to his conviction in state court.
SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL
Since petitioner is not challenging the sufficiency of the evidence to support the conviction, the Court adopts the factual history section from the California Court of Appeal opinion as a fair and accurate summary of the evidence presented at trial (Lodgment No. 5 at 2-4):
On July 20, 2002, [petitioner] and [co-defendant] Reyes attended a party, where a shouting match turned violent as defendants used a metal pipe and a wooden stick to strike the victim, Manual Llamas, in the head, causing his death. The Riverside County District Attorney charged [petitioner] and Reyes with one count of premeditated murder. (Pen. Code § 197 [sic] subd. (a).) The district attorney charged both defendants with the use of a deadly and dangerous weapon, specifically, a metal pipe by [petitioner] and a wooden club by Reyes. (Pen. Code, § 12022, subd. (b)(1).) The district attorney also charged both defendants with one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) During the trial, several partygoers described the fight and circumstances surrounding the fight. Joel Vazquez testified that Thomas Johnson hosted the party at his home in Glen Avon. Vazquez agreed to serve as the door keeper and bouncer. Vazquez observed [petitioner] and Reyes at the party with their usual group of friends, including Scott Heyerman, Vazquez's girlfriend, Alisha Studley, and Reyes's sister, Susie Reyes. In the early morning hours of July 21, 2002, Vazquez heard an argument between [petitioner] and Reyes's group and another group including Vazquez's brother, Alex, and Vazquez's friends. An offensive comment directed at some of the female partygoers triggered a verbal argument, which escalated into a pushing match. When Vazquez yelled for everyone to calm down, the fighting stopped and the crowd dispersed. Vazquez noticed [petitioner] walking towards his car. Reyes's friend, Luis Jiminez, saw someone returning with an object in his hands. Another one of Reyes's friends, Anthony Mendoza, observed [petitioner] holding something behind his back. After the initial altercation, another scuffle erupted, beginning with Llamas and Reyes. Studley heard Reyes say, "Fuck these fools," and "you want to get it on?" According to Vazquez, as [petitioner] faced Llamas, he raised his left hand and struck Llamas with a pipe on the right side of his head. The pipe was about 18 inches in length and three-quarters of an inch in width. Llamas was unarmed. Alex also witnessed this initial blow. Reyes was standing behind Llamas on his left side. Vazquez and Studley saw Reyes strike Llamas with a wooden stick on the back of his head. The wooden stick was about two-feet long. The fight took place in Johnson's back dirt lot, where pieces of wood were strewn on the ground. After his head jerked forward, Llamas fell to the ground. As Llamas was still staggering on his feet, [petitioner] with the pipe in his hand, took another swing at Llamas's head. After Llamas fell, [petitioner] struck him again. When Vazquez attempted to restrain [petitioner], [petitioner] struck Vazquez on the side of his head. Alex yelled for his brother to let [petitioner] go because Llamas was on the ground. [Petitioner] and Reyes went to their cars and left in a hurry. Susie tried to help Llamas, but then left with the others.
This Court has corrected the California Court of Appeal's multiple references to witness "Joel Vasquez," whose name is actually spelled "Vazquez." (See 2 RT 233).
Scott Heyerman did not testify at trial. Based on different spellings of his name in the Reporter's Transcript on Appeal, it is unclear whether his name is spelled "Heyerman" or "Hyerman."
Alisha Studley was petitioner's girlfriend. (See 1 CT 249).
[Petitioner], Reyes, and their friends regrouped at a park. On the way to the park, Reyes indicated his motions with the wooden stick by saying, "pah, pah, pah." At the park, [petitioner] admitted that he "fucked up" and Reyes also admitted that he "fucked that fool up." During the trial, the court admitted Reyes's taped police interview with investigator Michael Lujan. During the interview, Reyes initially explained that, although other people attempted to hit him, he was not involved in the fight. After Lujan repeatedly prodded him to tell the truth, Reyes admitted that he threw some punches to defend himself. Later, Reyes also admitted that he took a stick from someone and struck the victim on the back of the head, causing him to fall. As result of his injuries, Llamas died on July 29, 2002. The pathologist testified that the cause of death was brain swelling caused by the blows to the head. The pathologist estimated five to seven blows to Llamas's head, including one to his left ear area, one to his right ear area, three to the back of his head, and possibly another blow to the top of his head.
PETITIONER'S CLAIMS
To the extent that petitioner appears to be contending for the first time in his Reply that he is entitled to habeas relief due to cumulative error (See Reply Mem. at 14-15), the Court declines to address this unexhausted claim. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507-08 (9th Cir. 1994) ("A Traverse is not the proper pleading to raise additional grounds for relief."), cert. denied, 514 U.S. 1026 (1995).
2. The trial court committed instructional error in violation of petitioner's Fourteenth Amendment right to a fair trial. (See Pet. at 7; Reply Mem. at 8-10).
3. [Withdrawn.]
4. Petitioner's federal constitutional rights to a fair trial and due process under the Fifth, Sixth, and Fourteenth Amendments were violated by the admission of gang evidence. (See Pet. at 10; Reply Mem. at 11-15).
STANDARD OF REVIEW
The standard of review applicable to petitioner's claims herein is set forth in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings."
Further, a state court factual determination must be presumed correct unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (as amended).
Under the AEDPA, the "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).
Although a particular state court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. See Williams, 529 U.S. at 391, 413. A state court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts.See Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam); Williams, 529 U.S. at 405-06. When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is "unconstrained by § 2254(d)(1)." Williams, 529 U.S. at 406. However, the state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early, 537 U.S. at 8.
State court decisions that are not "contrary to" Supreme Court law may only be set aside on federal habeas review "if they are not merely erroneous, but `an unreasonable application' of clearly established federal law, or are based on `anunreasonable determination of the facts.'" Early, 537 U.S. at 11 (citing 28 U.S.C. § 2254(d) and adding emphasis). A state court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected decision may state Strickland rule correctly but apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-27, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (per curiam). However, to obtain federal habeas relief for such an "unreasonable application," a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Woodford, 537 U.S. at 24-27; Williams, 529 U.S. at 413. An "unreasonable application" is different from an erroneous or incorrect one. See Williams, 529 U.S. at 409-10;see also Woodford, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 699, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002).
DISCUSSION
A. Habeas relief is not warranted with respect to petitioner's Confrontation Clause claim.
Separately, both petitioner and his co-defendant Reyes made statements to the police regarding the murder. During the trial, the prosecutor indicated that he did not intend to introduce the audio tape of petitioner's statement to police, but that he did intend to introduce Reyes's statement to police. (See 3 RT 531-32, 581). Petitioner's counsel was given a transcript of Reyes's statement and indicated that he would use the lunch hour to confirm that all redactions made by the prosecutor were appropriate and that no further redactions were necessary. (See 3 RT 581-82). After the lunch recess, petitioner's counsel objected to one reference in the interview to petitioner's involvement in the "DK" gang. The trial court granted the request to strike that reference. (See 3 RT 613-15). Counsel indicated that he did not believe any other redactions were necessary. (See 3 RT 616).
Redactions were reflected by a bracketed phrase in the transcript distributed to the jury which read "portion deleted by agreement of counsel." (See 2 CT 379, 454, 457, 461, 463).
Sheriff's Investigator Michael Lujan took the stand to testify regarding his conversation with Reyes, during which time the tapes of that interview were played for the jurors. (See 3 RT 620-21). During the interview, Reyes initially denied being involved in the fight at the party, but later admitted to hitting people who were hitting him. He also indicated that he had hit the "guy" on the floor one time in the back of the head with a two-foot stick because the "guy" was bending down to pick up a stick. The "guy" did not hit Reyes. (See 2 CT 348-52, 363, 378-92). Regarding petitioner, Reyes indicated that he had known him for a couple of years and that on occasion they would hang out. (See 2 CT 372-73, 458). Though Lujan indicated to Reyes that he already knew that Reyes and petitioner had been involved in the fight, Reyes said that he did not see petitioner in the fight and he did not talk to petitioner about it. (See 2 CT 358, 374-75, 458). Reyes indicated that he saw petitioner walk "slow[ly]" to the car after the fight and that he joined him on the way to the car, and "rode" with petitioner. Reyes said that he did not see anyone else hit the "guy" with a stick. (See 2 CT 391). Reyes denied that he had talked to petitioner about the fight after the party. He indicated that he did not know who killed Llamas and did not know how Llamas died. (See 2 CT 455, 463).
The prosecutor used Reyes's statement to police to argue his guilt in closing, but did not argue that the statement could or should be used against petitioner. (See 2 Supplemental RT ("SRT") 253-56, 273). After closing arguments, the jury was instructed pursuant to CALJIC No. 2.08 as follows:
"Evidence has been received of a statement made by the Defendant Martin Reyes after his arrest to Investigator Lujan. Do not consider the evidence of this statement against the other Defendant Scott Bauders. The statement can only be used by you in determining the guilt or innocence of Defendant Martin Reyes." (See 4 RT 846, 2 CT 573).
Petitioner contends that the admission of Reyes's statement violated his federal constitutional right to confrontation as this "testimonial evidence [was] obtained without opportunity for cross-examination [and] was admitted via hearsay." (See Pet. at 5; Reply Mem. at 3-7).
1. Applicable legal authority
A primary interest secured by the Confrontation Clause of the Sixth Amendment is the right of an accused in a criminal prosecution to cross-examine witnesses against him or her. See Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). Recently, in Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court held that the Confrontation Clause bars the admission of testimonial hearsay unless the declarant is unavailable and the accused had "a prior opportunity for cross-examination." Statements given to police during interrogations qualify as "testimonial." See id. at 59, 68. The Crawford holding abrogated, in part, the prior rule that the admission of testimonial hearsay did not violate the Confrontation Clause if the declarant was unavailable and the statement fell under a "firmly rooted hearsay exception" or otherwise bore indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Further, the Ninth Circuit recently held that "[b]ecause the Crawford rule is both a `watershed rule' and one `without which the likelihood of an accurate conviction is seriously diminished,'" the rule applies retroactively underTeague v. Lane, 489 U.S. 288, 307, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). Bockting v. Bayer, 399 F.3d 1010, 1012-13 (9th Cir.) (citing Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 2523, 159 L. Ed. 2d 442 (2004)), as amended, 408 F.3d 1127 (9th Cir. 2005), cert. granted, Whorton v. Bockting, 126 S. Ct. 2017 (May 15, 2006).
In Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the Supreme Court held that a defendant's Sixth Amendment right of confrontation is violated when a facially incriminating confession of a nontestifying co-defendant is admitted at a joint trial, even if the jury is instructed to consider the confession only against the codefendant. In Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987), the Supreme Court limitedBruton's scope, holding that "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name but any reference to his or her existence." Marsh, 481 U.S. at 211. The Supreme Court noted that the confession in Marsh, in contrast to the confession in Bruton, "was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant's own testimony)." Marsh, 481 U.S. at 208; Mason v. Yarborough, 447 F.3d 693, 695 (9th Cir. 2006) ("Bruton specifically exempts a statement, not incriminating on its face, that implicates the defendant only in connection to other admitted evidence."); see also United States v. Olano, 62 F.3d 1180 (9th Cir. 1995) (noting that the Supreme Court in Marsh "`limited Bruton to confessions that are facially incriminating'"), cert. denied, 519 U.S. 931 (1996). Eleven years after the Marsh decision, in Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998), the Supreme Court held that symbols or neutral pronouns were not acceptable replacements in lieu of a defendant's name: "Redactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration . . . leave statements that, considered as a class, so closely resembleBruton's unredacted statements that, in our view, the law must require the same result." Gray, 523 U.S. at 192; see also United States v. Peterson, 140 F.3d 819, 822 (9th Cir. 1998) ("Gray clarifies that the substitution of a neutral pronoun or symbol in place of the defendant's name is not permissible if it is obvious that an alteration has occurred to protect the identity of a specific person.").
2. The California Court of Appeal opinion
Under Ylst v. Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991), it may be presumed that the California Supreme Court, by its silent denial of petitioner's Petition for Review raising the same claim, did not intend to change the California Court of Appeal's reasoned decision rejecting it.See Ylst, 501 U.S. at 803-04.
Citing Bruton, Crawford, and Marsh, the California Court of Appeal rejected petitioner's Confrontation Clause challenge on direct review, reasoning in pertinent part:
"During Reyes's police interview, he reluctantly admitted his own involvement in the fight, stating that he struck the victim on the back of his head with a stick. Reyes, however, denied any involvement by codefendant [petitioner]. When Lujan questioned Reyes concerning the identity of the man standing in front of Llamas, Reyes denied knowing who the man was, whether he said anything to Llamas, and whether he was armed. According to Reyes, he hit Llamas once in the head, Llamas fell, and the fighting stopped. Reyes's statement, therefore, does not incriminate anyone else as responsible for the attack upon Llamas and his resulting injuries.
"[Petitioner] nevertheless argues that Reyes's confession was inferentially incriminating because the evidence suggested that Reyes lied about himself and, therefore, lied about [petitioner]. In such case, an instruction could prevent the jury from drawing the inappropriate inference. "[W]ith regard to such an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant's guilt; whereas with regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget." (Richardson v. Marsh, supra, 481 U.S. at p. 208.)
"This is particularly true where the statements did not implicate another person in the crime. In this case, in order to arrive at the conclusion that [petitioner] was responsible for Llamas's injuries, the jury must not only find that Reyes lied, but also draw its fact from the other evidence presented at trial. The jury likely determined [petitioner's] guilt from this other evidence, without having to infer [petitioner's] guilt from Reyes's suspicious denials. In any event, the court advised the jury against drawing any impermissible inferences.
"We conclude that the trial court did not violate [petitioner's] constitutional rights by admitted the redacted version of Reyes's confession with a limiting instruction." (Lodgment No. 5 at 6-7).
3. Analysis
As noted above, under Marsh, 481 U.S. at 208, 211, where the admitted co-defendant's statement is not incriminating on its face and becomes so only when linked with other adduced evidence, the Confrontation Clause is not violated where a proper limiting instruction is given. Here, the Court concurs with the California Court of Appeal that Reyes's statement did not incriminate anyone else in the crime, including petitioner. To the extent that the statement was incriminating when linked with other evidence presented at trial, the trial court's limiting instruction pursuant to CALJIC No. 2.08 properly protected petitioner's constitutional rights. The jurors are presumed to have followed the instructions given to them, see Marsh, 481 U.S. at 211; Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 145 L. Ed. 2d. 727 (2000), and petitioner has failed to adduce any evidence that the jury failed to follow the foregoing instruction in this instance.
To the extent that petitioner contends that the statements, "insinuations," and "accusations" of Investigator Lujan regarding petitioner during Reyes's interrogation incriminated him (see Reply Mem. at 4-6), their "admission" did not violate the Confrontation Clause. Even if it were assumed that Lujan's questions and statements during the interrogation were "testimonial" in nature, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Crawford, 541 U.S. at 59. Lujan was available for cross-examination at trial; petitioner's counsel simply declined the opportunity — twice — to cross-examine him. (See 3 RT 627, 635-1).
Moreover, the Court disagrees with petitioner's contention thatCrawford prohibits the admission of a co-defendant's statement to police "whether the statement was directly inculpatory . . . or not." (See Pet. at 5; Reply Mem. at 3). The primary concern in Crawford was the violation of the accused's right under the Confrontation Clause "to be confronted with the witnesses against him." 541 U.S. at 42. Crawford did not abrogate the Court's prior holding in Bruton or that in Marsh, which found no Sixth Amendment violation when the admitted statement was not facially incriminating and a limiting instruction was given.See Crawford, 541 U.S. at 57 (finding its decision consistent with many other Confrontation Clause cases, including Bruton). The Marsh Court observed that, "[o]rdinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness `against' a defendant if the jury is instructed to consider that testimony only against a codefendant." See 481 U.S. at 206; see also Mason, 447 F.3d at 698 (Wallace, J., concurring) (noting that "the Court held [in Marsh] that the redaction and limiting instructions effectively prevented [co-defendant] Williams from being a "witness against" Marsh, and therefore the protections of the Confrontation Clause were not at issue"). Thus, this Court has no basis for finding or concluding that the Confrontation Clause was violated here by the admission of Reyes's statement.
Because this Court finds no violation of the Confrontation Clause, it need not determine whether the error had a "substantial and injurious effect or influence in determining the jury's verdict" under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). The Court notes, however, that on habeas review, whether a constitutional error was harmless is evaluated under this Brecht standard, and not under the Chapman "harmless beyond a reasonable doubt" standard repeatedly cited by petitioner in his Reply.
The Court therefore finds and concludes that the state courts' rejection of petitioner's Confrontation Clause claim neither was contrary to nor involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court.
B. Habeas relief is not warranted with respect to petitioner's claim regarding the admission of gang evidence.
Petitioner contends that his federal constitutional rights to a fair trial and due process under the Fifth, Sixth, and Fourteenth Amendments were violated by the admission of gang evidence at trial. (See Pet. at 10; Reply Mem. at 11-15). Specifically, petitioner challenges the admission of evidence that Reyes claimed membership in the "DK" gang and bullied others, and the admission of a recorded statement of a party-goer claiming that she saw gang writing on a rug at the scene of the murder and heard "gang yelling." (See Pet. at 10).
1. The record below
The prosecution filed a motion in limine to admit evidence of petitioner's and Reyes's membership in the "DK" gang, arguing that the evidence supported the theory that the killing was gang-motivated. (See 1 CT 205-19). Reyes's counsel filed an opposition, arguing that the evidence was overly prejudicial and only minimally probative under California Evidence Code § 352. (See 1 CT 220-22). At a pre-trial hearing, the trial court heard arguments regarding the admissibility of the evidence from the prosecutor and both defense counsel. (See 1 RT 21-30). The trial court gave an indicated ruling that the gang evidence would not be admissible for the purpose of showing motive or intent because the killing appeared to be the result of a fight. The court noted, however, that while it was not then ruling on the issue, "evidence of gang intimidation may come in," particularly if that explained why Joel Vazquez (a friend of the victim's) changed his earlier police statement, and/or if the defense opened the door to the admission of other gang evidence. (See 1 RT 30-6, 43-5). The court also indicated that the "issue of gang association, gang affiliation . . . may well develope [sic] in this case depending on what happens." (See 1 RT 36).
a. Joel Vazquez's testimony
Joel Vazquez was present at the party when the brawl, which resulted in Llamas' death, broke out. The prosecutor attempted to clarify why Vazquez's initial statement to police, indicating that he had seen petitioner strike the victim one time, was inconsistent with a later statement indicating that he had seen petitioner hit the victim twice, or maybe three times. The prosecutor questioned Vazquez regarding whether he had been visited at his home by one of Reyes's friends. (See 2 RT 263-64). Vazquez indicated that Scott Heyerman, a friend of Reyes's, had visited him and told him that he (Heyerman) did not want any problems with Vazquez or his friends, that neither he (Heyerman) nor any of his friends had anything to do with the killing, and that petitioner "was the one that did it." (See 2 RT 264-65). Vazquez responded to Heyerman that he had seen both Reyes and petitioner involved, that he did not want anything to do with him (Heyerman), and to "quit bugging" him and not come back to his house. (See 2 RT 265). Two weeks later, however, Heyerman returned to Vazquez's house along with Susie Reyes, Reyes's sister. Susie Reyes told Vazquez that neither she nor her brother had anything to do with the killing and that petitioner was a "rat." Heyerman said, "fuck Scott. I hope he dies. I hope he rots in hell." (See 2 RT 266-67).
On cross-examination by Reyes's counsel, Vazquez testified that petitioner and Reyes hung around the same group inside and outside school, but he would not say that they attended school at the same time. (See 2 RT 340-41). Vazquez later testified on cross-examination that he saw one "blow" from Reyes and one from petitioner, and then saw two more swings from petitioner. (See 2 RT 355). Reyes's counsel inquired whether anyone had told Vazquez to testify a certain way in court, and whether he was intimidated by Heyerman's visits to his home. Vazquez testified that no one had ever tried to influence his testimony, and though he was not intimidated by Heyerman, the visits did worry him as he was concerned for the safety of his parents and younger brother, with whom he lived. (See 2 RT 355-56). He further testified that "weird stuff" happened to his house after the incident, including cars being broken into, things stolen out of the house, and spray painting near the walls around his house. Vazquez did not know who was responsible for these acts. (See 2 RT 356-57).
On redirect, the prosecutor questioned Vazquez in greater detail regarding the incidents that had happened since Heyerman's visits to his home. He also elicited testimony from Vazquez that he had personally witnessed Reyes being aggressive and bullying towards other people, and that he had heard Reyes tell people not to "fuck" with him because he was with a group of people. Over defense objection, he testified that he knew Reyes and petitioner to hang around in a group together. (See 2 RT 358-60). In a sidebar, the trial court reminded Reyes's counsel that it had "cautioned" him regarding opening the door. The court found that the door had been opened and allowed the prosecutor to inquire into Reyes's membership in the "DK" group without referring to it as a gang — but restricted the prosecutor's questions to Reyes's membership in "DK" only, and not petitioner's. (See 2 RT 361-68). The prosecutor then briefly questioned Vazquez regarding Reyes's association with a group called "DK." Vazquez testified that Reyes was part of that group and that he (Vazquez) had been present when Reyes bullied others at school, threatening them not to "fuck" with him as he was from DK. (See 2 RT 368-69).
b. The Studley transcript
The prosecutor intended to call Investigator Lujan to testify to Alisha Studley's statement to police and to play the audio-tape of that statement. Studley was petitioner's girlfriend, and she had been present at the party during the fight. With the agreement of both defense counsel, the prosecutor indicated that he would remove any objectionable references to gangs from the tape and the transcript that would be distributed to the jurors. (See 2 RT 333-34).
While Lujan was on the stand, the prosecutor distributed the 63-page transcript of the audio-taped statement, and the court advised the jurors that the transcript itself was not evidence, but rather a guide. (See 2 RT 499). After a portion of the tape was then played for the jurors, there was a bench conference at which the prosecutor apologized to the court and defense counsel and indicated that he had found some gang references that he had originally missed. The first was a reference to "gang writing on a rug" at the party; the second, evident later in the transcript, in a section of the tape that had not yet been played for the jury, was a reference to "yelling profanity" and "vato loco stuff." (See 2 RT 500). After brief argument, the trial court reversed its original ruling that the tape would be admissible. It ordered that the transcripts be collected from the jurors, and advised the prosecutor that Lujan could testify to Studley's statements. The bailiff then collected the transcripts, and the court ordered the jury to disregard what it had heard so far on the tape and what it had read in the transcript. (See 2 RT 503).
By agreement of counsel, the playing of the tape was not reported. While it is not entirely clear how much of the tape was played for the jury, during the ensuing bench conference, the trial court did indicate that it had been "listening to this tape now for twenty pages." (See 2 RT 499, 501).
The reference to the gang writing on the rug appeared on page 17 of the transcript, so it would appear that the jury did hear this gang reference. (See 1 CT 263). Though the prosecutor indicated that the jury had not yet reached the part of the tape wherein the vato loco reference was made, it appears on page 20 of the transcript. (See 1 CT 266).
2. Applicable legal authority
As a general proposition, federal habeas courts "do not review questions of state evidence law." Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991); see also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). Federal habeas relief only is available if the petitioner is contending that he is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. at 67-68 ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."); Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982) ("A federally issued writ of habeas corpus, of course, reaches only convictions obtained in violation of some provision of the United States Constitution.").
"Habeas relief is available for wrongly admitted evidence only when the questioned evidence renders the trial so fundamentally unfair as to violate federal due process." Jeffries v. Blodgett, 5 F.3d 1180, 1193 (9th Cir. 1993), cert. denied, 510 U.S. 1191 (1994); see also Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). "Only if there are no permissible inferences the jury can draw from the evidence can its admission violate due process." Jammal, 926 F.2d at 920; McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir.),cert. denied, 510 U.S. 1020 (1993); see also Estelle v. McGuire, 502 U.S. at 70 (where the challenged evidence is relevant to an issue in the case, its admission cannot be said to have violated the defendant's due process rights).
3. The California Court of Appeal opinion
The California Court of Appeal rejected petitioner's challenge to the admission of the gang evidence. With respect to Vazquez's testimony, the court concluded that the "gang evidence was relevant to the issue of whether Vazquez's prior statements or trial testimony was affected by any fear of retaliation"; to provide a reasonable basis for Vazquez's concern for his family's safety; and "to provide a reasonable explanation for Vazquez's prior inconsistent statements." Further, the appellate court found that the trial court's limitations on the inquiry — including the exclusion of the word "gang," coupled with the limited questioning by the prosecutor on the subject, rendered the evidence not unduly prejudicial. With respect to the Studley transcript, the appellate court concluded that "even if the court erred in playing the tape or in giving the jury the transcript, the error was clearly harmless." Specifically, the comment regarding gang writing on the rug did not implicate Reyes or petitioner as the rug was in Johnson's back lot and the writing was observed by Studley on her way to the party. With respect to the "Vato Loco" comment, the court concluded that the prosecutor had not yet played the part of the tape containing this comment and that the "claim of prejudice hinges on whether the jury read ahead, saw the comment, and somehow connected defendants with the people who were shouting profanities and using gang terminology." Moreover, neither defendant was mentioned as participants in the shouting match during which this comment was overheard, and thus, this comment also did not implicate Reyes or petitioner directly. The Court of Appeal concluded that petitioner had failed "to show that gang references, individually or collectively, so infected [his] trial that, without them, [he] would have obtained a more favorable verdict." (See Lodgment No. 5 at 8-14).
4. Analysis
With respect to Vazquez's testimony, the Court concurs with both the trial court and the state appellate court that the gang evidence was relevant to the issue of whether Vazquez's statements or trial testimony were affected by a fear of retaliation and to the jury's assessment of Vazquez's credibility in light of his inconsistent statements. Moreover, the prosecutor was not authorized to specifically use the word "gang" during his questioning of Vazquez regarding Reyes's association with "DK"; his inquiry of Vazquez on that subject was limited to two questions; and there was no reference to petitioner's involvement in the "DK" group. It was Reyes who was said to have bullied and threatened school-mates not to mess with him because he was part of a "group." Given the relevance of the testimony that was admitted, the limitations on the prosecutor's inquiry, and the fact that the testimony did not implicate petitioner in the "DK" group, this Court has no basis for finding or concluding that the admission of this gang evidence rendered petitioner's trial so fundamentally unfair as to violate due process.
Petitioner's reliance on Kennedy v. Lockyer, 379 F.3d 1041, 1055-1056 (9th Cir. 2004), cert. denied, Lockyer v. Kennedy, 544 U.S. 992 (2005) for the proposition that "evidence relating to gang involvement will almost always be prejudicial and will constitute reversible error" and "evidence of gang membership may not be introduced, as it was here, to prove intent or culpability" is misplaced. (See Reply Mem. at 11 (citingKennedy, 379 F.3d at 1055)). This language is dicta in a case addressing an indigent defendant's right to a full transcript of a prior mistrial. In Kennedy, the defendant's initial trial — during which the first trial judge made explicit rulings excluding evidence of petitioner's alleged involvement in a gang resulted in a hung jury. Petitioner was denied a full transcript of that trial, and the attorney at his second trial did not have that part of the transcript evincing these trial court rulings. The prosecutor — aware of the first exclusionary ruling — proceeded to deliberately elicit gang testimony at petitioner's second trial, at which he was convicted. See id. at 1045. The Ninth Circuit granted habeas relief, finding that the petitioner was entitled to a full transcript of the prior proceedings; that the state court's decision was contrary to clearly established federal law; and that the denial of a complete transcript here had a substantial and injurious effect on the jury's verdict.See id. at 1049, 1052, 1054. In making the determination that the Brecht standard had been met, the Ninth Circuit cited to the prosecutor's deliberate elicitation of forbidden gang evidence in the second trial, which it found prejudicial.
Here, unlike in Kennedy, and contrary to petitioner's contention (see Reply Mem. at 12), evidence of gang membership was not introduced to prove intent, culpability, or guilt by association. In fact, the trial court ruled gang evidence inadmissible to prove intent or motive as it appeared the murder was simply the result of a fight. (See 1 RT 30-6). The evidence that was admitted established Reyes's membership in the "DK" group — not petitioner's. Even after the trial court ruled that Reyes's counsel had "opened the door" to further inquiry by the prosecutor, neither the "gang" evidence elicited — if it can be called that — nor the references in the Studley statement — linked petitioner to a gang, inculpated him in the crime, or suggested guilt by association. Moreover, importantly, as the Court of Appeal found, Vazquez's testimony was relevant to explain Vazquez's prior inconsistent statements. Thus, its admission cannot be said to have violated due process. See Estelle v. McGuire, 502 U.S. at 70.
With respect to the Studley transcript, petitioner has adduced no evidence to rebut the presumption that the jury failed to follow the instruction to disregard what it had heard so far on the tape and what it had read in the transcript. Moreover, the Court concurs with the California Court of Appeal that neither the reference to the rug with gang writing on it nor the "vato loco" comment implicated petitioner or connected him to a gang. Thus, even if the jury did hear or read both references, and even if the jury then ignored the trial court's instruction to disregard what it had heard or read, the Court has no basis for finding or concluding that the admission of this gang evidence rendered petitioner's trial so fundamentally unfair as to violate due process.
The Court therefore finds and concludes that the state courts' rejection of petitioner's claim neither was contrary to nor involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court.
C. Habeas relief is not warranted with respect to petitioner's instructional error claim.
At trial, the trial court, prosecutor, and defense counsel agreed that both CALJIC Nos. 5.54 and 5.56 (which respectively address self-defense by an initial aggressor and self-defense by a mutual combatant) were applicable to the case. (See 3 RT 813-14). The court consequently instructed the jury pursuant to these instructions as follows:
"The right of self-defense is only available to a person who initiated an assault if he has done all of the following: number one, he has actually tried in good faith to refuse to continue fighting; two, he has clearly informed his opponent that he wants to stop fighting; and three, he has clearly informed his opponent that he has stopped fighting. [¶] After he has done all three things, he has the right to self-defense if the opponent continues to fight." (See 4 RT 842; 2 CT 560).
"The right of self-defense is only available to a person who engages in mutual combat if he has done all of the following: number one, he has actually tried in good faith to refuse to continue fighting; two, he has clearly informed his opponent that he wants to stop fighting; three, he has clearly informed his opponent that he has stopped fighting; and four, he has given his opponent the opportunity to stop fighting. [¶] After he has done all four things, he has the right to self-defense if his opponent continues to fight." (See 4 RT 842; 2 CT 562).
Neither defense counsel requested that the jury also be instructed that a person involved in a non-felonious assault, whose opponent responds with deadly force so suddenly that the person cannot withdraw, may immediately use deadly force in self-defense. See, e.g., People v. Quach, 116 Cal. App. 4th 294, 300-03, 10 Cal. Rptr. 3d 196 (2004), and cases cited therein. Petitioner contends, however, that CALJIC Nos. 5.54 and 5.56 were erroneous and violated his Fourteenth Amendment right to a fair trial of his defense because they did not include this sudden escalation exception. (See Lodgment No. 8 at 2; Reply Mem. at 8-10).
Quach was decided after petitioner's trial. After the issuance of Quach, the following bracketed language was added to CALJIC No. 5.54: "If the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense." CALJIC No. 5.54 (2004 Re-Revision). Similar bracketed language was added to CALJIC No. 5.56. See CALJIC No. 5.56 (2004 Re-Revision).
On direct review to the California Court of Appeal, petitioner raised this instructional error claim on state law grounds only, relying principally on Quach. (See Lodgment No. 2 at 23-30; Lodgment No. 4 at 7-10). In rejecting the claim, the appellate court found Quach factually distinguishable. It noted that Anthony Mendoza had been the only witness who testified that Llamas had been armed with a wooden board during his brawl with petitioner and that he had used the board to swing at petitioner. While California law recognized that the testimony of one witness may be sufficient to warrant a requested instruction, California law also recognized that, "when the witness's testimony contradicts other evidence presented by both the prosecution and the defense, it may not constitute substantial evidence — i.e., evidence that a reasonable jury would find persuasive — to warrant a sua sponte instruction." Arguably, the appellate court thus reasoned, "if the trial court has no sua sponte obligation to give CALJIC Nos. 5.54 or 5.56, the court should not be required without a request to give the optional paragraph with the alternative defense theory." (See Lodgment No. 5 at 16-17).
The Court notes that, while petitioner did frame this instructional error claim as a violation of his Fourteenth Amendment right a fair trial of his defense in his Petition for Review to the California Supreme Court, he did not cite any federal authority in support of the claim. (See Lodgment No. 8 at 2, 8-11).
In any event, the Court of Appeal concluded, even assuming that the trial court erred in failing to instruct the jury on the sudden escalation exception, "the circumstances in this case render[ed] the error harmless beyond a reasonable doubt." (See Lodgment No. 5 at 17). In this regard, the appellate court reasoned:
"Mendoza's testimony contradicted evidence presented by both the prosecution and the defense. None of the other witnesses testified that Llamas was holding a wooden board. Joel and Alex Vasquez testified that Llamas was unarmed. Even Reyes's friend, Jiminez, testified that the victim was not holding a weapon. Nothing in the record, therefore, supported Mendoza's version of the facts. In addition, contrary to Reyes's own admission, Mendoza testified that Reyes was not involved in the fight with Llamas, but was standing off to the side. Also, while the other witnesses testified that [petitioner] was standing face-to-face with Llamas, Mendoza claimed that he was standing in front of Llamas. Because of these inconsistencies, the jury undoubtedly rejected Mendoza's testimony as a futile attempt to exonerate his friend." (Lodgment No. 5 at 17).
To the extent that petitioner merely is contending that an instruction on the sudden escalation exception should have been given as a matter of California law, his instructional error claim is not even cognizable on federal habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. at 71-72.
To merit federal habeas relief on his claim that the trial court erred by omitting an instruction on the sudden escalation exception, petitioner must allege and then show that the omission so infected the entire trial that the resulting conviction violated his federal constitutional right to due process. See Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977); Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). "Where the alleged error is the failure to give an instruction, the burden on the petitioner is `especially heavy.'" Hendricks v. Vasquez, 974 F.2d 1099, 1106 (9th Cir. 1992) (quoting Kibbe, 431 U.S. at 155).
Moreover, even assuming arguendo that petitioner's claim is cognizable on federal habeas review and that the failure to instruct the jury on the sudden escalation exception violated petitioner's federal constitutional right to due process as a matter of clearly established Supreme Court law, petitioner still would not be entitled to habeas relief unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 637-38; see also Bradley v. Duncan, 315 F.3d 1091, 1099 (9th Cir. 2002) (holding that the failure to properly instruct the jury is a trial error subject to harmless-error analysis), cert. denied, 540 U.S. 963 (2003). The Court has no basis for so finding or concluding here. Petitioner does not dispute the appellate court's finding that Mendoza was the only witness who testified that Llamas had been armed with a wooden board during his brawl with petitioner and that he had used the board to swing at petitioner. As the appellate court further found and as the Court's own review of the record substantiates, Mendoza's testimony in this regard was contradicted by the testimony of other prosecution and defense witnesses. (See 2 RT 249, 386-87, 392; 3 RT 551-53, 668-69). For the same reasons the California Court of Appeal concluded that the instructional error, if any, was harmless beyond a reasonable doubt, this Court is unable to find or conclude that the trial court's failure to instruct the jury on the sudden escalation exception had a substantial and injurious effect or influence in determining the jury's verdict. Rather, the Court concurs with the Court of Appeal that the jury likely viewed Mendoza's version of the events as "a futile attempt to exonerate his friend."
Alternatively, the Court finds and concludes that the California Court of Appeal did not apply harmless error review in an "objectively unreasonable" manner. See Mitchell v. Esparza, 540 U.S. 12, 18, 124 S. Ct. 7, 12, 157 L. Ed. 2d 263 (2003).
RECOMMENDATION
IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and Amended Petition, and dismissing this action with prejudice.