Steven Phillips v. Debra Herndon

Filing

FILED OPINION (ALFRED T. GOODWIN, WILLIAM A. FLETCHER and EDWARD R. KORMAN) AFFIRMED., Judge: ERK Authoring. FILED AND ENTERED JUDGMENT. [8785285]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVEN WAYNE PHILLIPS,
Petitioner-Appellant,

No. 09-56079

v.

D.C. No.
5:08-cv-107-ODW-FMO

DEBRA HERNDON,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Argued January 9, 2013
Submitted September 17, 2013
Pasadena, California
Filed September 17, 2013
Before: Alfred T. Goodwin and William A. Fletcher,
Circuit Judges, and Edward R. Korman, Senior District
Judge.*
Opinion by Judge Korman

*

The Honorable Edward R. Korman, Senior United States District Judge
for the Eastern District of New York, sitting by designation.

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SUMMARY**

Habeas Corpus
The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging the
exclusion of a confession by one of petitioner’s accomplices
exculpating petitioner as the shooter.
The panel held that it was not unreasonable for the state
court to conclude that other statements (including statements
identifying petitioner as the shooter) that the accomplice had
made rendered his own inculpatory statement unreliable.
Consequently, the panel held that the determination by the
California Court of Appeal that the admission was properly
excluded did not constitute an unreasonable application of
clearly established Supreme Court law, nor was the state
court decision based on an unreasonable determination of the
facts.

COUNSEL
Tony Faryar Farmani, Farmani APLC, San Diego, California,
for Petitioner-Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior
Assistant Attorney General, Kevin R. Vienna, and Kristine A.
Gutierrez, Deputy Attorney General, San Diego, California,
for Respondent-Appellee.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
KORMAN, District Judge:
Steven Wayne Phillips, along with one of his
accomplices, Robert Cress, was found guilty of the murder of
William Jacob. Phillips alone was found guilty of personally
discharging a firearm in the course of the murder. He was
sentenced to twenty-five years to life for murder and also
subjected to a mandatory consecutive sentence of twenty-five
years to life for the firearm enhancement under California
Penal Code § 12022.53(d). The exclusion of Cress’s thirdparty confession exculpating Phillips as the shooter, the sole
issue raised on this appeal, affects only the latter conviction
because Phillips’s conviction for murder did not turn on his
use of the firearm.
The evidence at trial established that, shortly after the
crime, Phillips admitted shooting Jacob, and other evidence
placed the gun in his hands. Cress also said twice that
Phillips was the shooter. Nevertheless, the following
morning Cress changed his story and said that he was the
shooter. The trial judge excluded all of Cress’s statements.
Specifically, the trial judge found that while Cress’s own
admission of guilt was against his penal interest, it lacked
sufficient indicia of trustworthiness to be admissible. This
holding was based principally on the fact that Cress’s
admission contradicted the two other accounts of the murder
given by him.
In affirming the judgment of conviction, the California
Court of Appeal held that the trial court properly excluded
Cress’s statement under California’s evidence law: “The trial
court concluded the statements lacked sufficient indicia of

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trustworthiness because (1) they were contradicted by the
physical evidence, and (2) Cress made three inconsistent
statements about his involvement in the murder.” People v.
Phillips, No. E035406, 2007 WL 549832, at *8 (Cal. Ct. App.
Feb. 23, 2007). While the California Court of Appeal held
that “some discrepancies in [a] declarant’s statements do not
render them untrustworthy,” in the present case “Cress
offered three completely conflicting and contradictory
versions of the murder.” Id. (emphasis in original).
Moreover, “[p]recisely for the same reasons the trial court
found the statements untrustworthy, we are convinced that the
jury would have rejected them as evidence exonerating
Phillips had they been admitted.” Id.
Phillips then filed his petition for a writ of habeas corpus.
After the petition was denied, we granted a certificate of
appealability limited to the issue of whether the exclusion of
Cress’s statement violated Phillips’s right to present a
complete defense, an issue which also implicated the
deference due to the holding of the California Court of
Appeal. The latter issue arose because, notwithstanding
Phillips’s argument that the exclusion of Cress’s statement
violated his constitutional rights, as well as California law,
the opinion affirming his conviction made no reference to
federal law.
In Harrington v. Richter, 562 U.S. —, 131 S. Ct. 770
(2011), the Supreme Court held that a reviewing federal court
should presume that the last reasoned decision of the state
court adjudicated all raised claims on the merits and is
entitled to deference pursuant to the Antiterrorism and
Effective Death Penalty Act of 1996, commonly referred to
as AEDPA deference. See 28 U.S.C. § 2254. Subsequently,
in Johnson v. Williams, 133 S. Ct. 1088 (2013), it held that

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one exception to this presumption was a case in which “a
defendant claimed in state court that something that occurred
at trial violated both a provision of the Federal Constitution
and a related provision of state law” and where the state
court, “in denying relief, made no reference to federal law.”
Id. at 1096. Nevertheless, even in this circumstance, Johnson
acknowledged that the Richter presumption could hold “if the
state-law rule subsumes the federal standard—that is, if it is
at least as protective as the federal standard[.]” Id. This
holding is consistent with the rule that the application of
AEDPA deference “does not require citation of [Supreme
Court] cases—indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor
the result of the state-court decision contradicts them.” Early
v. Packer, 537 U.S. 3, 8 (2002) (per curiam).
In the present case, the defendant relied on interrelated
constitutional guarantees that merge into the rule that a
criminal defendant is entitled to “a meaningful opportunity to
present a complete defense.” Crane v. Kentucky, 476 U.S.
683, 690 (1986). This rule, however, is subject to the caveat
that “state and federal rulemakers have broad latitude under
the Constitution to establish rules excluding evidence from
criminal trials.” United States v. Scheffer, 523 U.S. 303, 308
(1998); see also Montana v. Egelhoff, 518 U.S. 37, 53 (1996)
(“[T]he introduction of relevant evidence can be limited by
the State for a ‘valid’ reason.”). Indeed, in Rhoades v. Henry,
a pre-AEDPA case, we held that the exclusion of an
unreliable third-party confession did not violate the due
process clause. 638 F.3d 1027, 1035–36 (9th Cir. 2010).
More recently, the Supreme Court observed that “[o]nly
rarely have we held that the right to present a complete
defense was violated by the exclusion of defense evidence

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under a state rule of evidence.” Nevada v. Jackson,
133 S. Ct. 1990, 1992 (2013) (per curiam).
Against this backdrop, we examine California law with
respect to third-party confessions. California Evidence Code
§ 1230, to the extent here relevant, provides that statements
that would come within the definition of hearsay are “not
made inadmissible by the hearsay rule if[,] . . . when made,
. . . [the statements] so far subjected [the declarant] to the risk
of . . . criminal liability . . . that a reasonable man in his
position would not have made the statement unless he
believed it to be true.” Unlike Federal Rule of Evidence
804(b)(3), the California Evidence Code does not contain a
special requirement that a third-party confession offered in a
criminal case to prove someone else committed the crime be
“supported by corroborating circumstances that clearly
indicate its trustworthiness.” Fed. R. Evid. 804(b)(3)(B).
Nevertheless, the Supreme Court of California has held
that “[t]he focus, indeed, the heart of this exception . . . is . . .
the basic trustworthiness of the declaration,” and that the
determination “whether trustworthiness is present requires the
court to apply to the peculiar facts of the individual case a
broad and deep acquaintance with the ways human beings
actually conduct themselves in the circumstances material
under the exception. Such an endeavor allows, in fact
demands, the exercise of discretion.” People v. Gordon,
50 Cal. 3d 1223, 1251 (1990) (alterations in original)
(internal quotation omitted), disapproved of on other grounds
by People v. Edwards, 54 Cal. 3d 787, 835 (1991).
Consistent with this purpose, the Supreme Court of California
has held that § 1230 confers discretion on a trial judge to
admit a third-party confession if it is “probably true” and that
it would be an abuse of discretion to exclude such a

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confession on hearsay grounds. See People v. Cudjo, 6 Cal.
4th 585, 607–10 (1993).
While a finding of trustworthiness eliminates the hearsay
objection, it does not resolve the issue of whether the
statement should be excluded pursuant to the general
discretion of a trial judge to weigh evidence in response to an
objection that the probative value is substantially outweighed
by the dangers of prejudice, confusion, and undue time
consumption. See Cal. Evid. Code § 352; cf. Fed. R. Evid.
403. Nevertheless, even in that context, it is an abuse of
discretion to exclude a material and trustworthy third-party
confession.
People v. Cudjo provides an illustration of the application
of § 1230 to a case in which the defendant sought to admit a
third-party confession. In Cudjo, the defendant and his
brother, Gregory, were the primary suspects in a violent
murder. Cudjo, 6 Cal. 4th at 602–04. The physical evidence
was consistent with either having committed the crime.
While the police had Gregory in custody, he confessed to his
cellmate that he had committed the crime. Id. at 604–05.
Under these circumstances, the Supreme Court of California
held that, if made as claimed, Gregory’s confession was
“probably true” and that “the [trial] court could properly have
found that ‘a reasonable [person] in [Gregory’s] position
would not have made the statement unless he believed it to be
true.’” Id. at 607–08 (quoting Cal. Evid. Code § 1230)
(alterations in original). Indeed, it held that the trial court
abused its discretion in excluding Gregory’s confession
simply because the witness to whom Gregory confessed was
not credible. Id. at 609–10.

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After so holding, the Supreme Court of California then
discussed the objection of the prosecutor under California
Evidence Code § 352, under which “the trial court is required
to weigh the evidence’s probative value against the dangers
of prejudice, confusion, and undue time consumption.” Id. at
609.
“Unless these dangers ‘substantially outweigh’
probative value, the objection must be overruled.” Id. (citing
People v. Babbitt, 45 Cal. 3d 660, 688 (1988)). Specifically,
it held that “[t]o withstand a challenge under Evidence Code
§ 352, evidence of a third party’s culpability ‘need only be
capable of raising a reasonable doubt of [the] defendant’s
guilt.’” Id. (quoting People v. Hall, 41 Cal. 3d 826, 833
(1986)). Applying that standard to the facts, the California
Supreme Court rejected the objection to the admissibility of
Gregory’s confession. In so doing, it observed that the thirdparty confession was made “within hours after the crime was
committed and under circumstances providing substantial
assurances that the confession was trustworthy.” Id. Because
proof of Gregory’s guilt would have exonerated the defendant
it raised “the requisite reasonable doubt of defendant’s guilt.”
Id. at 610.
Ultimately, the Cudjo Court held that the error in
excluding Gregory’s confession constituted harmless error
under the lenient California rule for errors of state law.
Cudjo, 6 Cal. 4th at 611–12. While this holding was based on
the entire record, one of the factors cited was that “Gregory’s
purported jailhouse confession contravened both the physical
evidence and all other accounts Gregory had given, including
his testimony under oath at the preliminary hearing.” Id. at
613. There is an obvious disconnect between this description
and the earlier holding that Gregory’s confession was
sufficiently trustworthy to have been admitted as a
declaration against penal interest. Nevertheless, this

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disconnect does not undermine the conclusion that the
California state-law rule is “at least as protective as the
federal standard.” Johnson, 133 S. Ct. at 1096. Indeed, on
subsequent habeas review, relying on the California Supreme
Court’s initial description of Gregory’s confession, we held
that the error was not harmless under the standard of Brecht
v. Abrahamson, 507 U.S. 619 (1993). Cudjo v. Ayers,
698 F.3d 752, 755, 768 (9th Cir. 2012), cert. denied sub nom.
Chappell v. Cudjo, 133 S. Ct. 2735 (2013).
Under these circumstances, the holding of the California
Court of Appeal that Cress’s confession was properly
excluded is entitled to AEDPA deference. There is no
dispute that Cress gave three conflicting and contradictory
versions of the murder, nor was it unreasonable for the
California Court of Appeal to conclude that these statements
rendered Cress’s own inculpatory statement unreliable. Even
if we would have reached a different result on direct appeal,
AEDPA “reflects the view that habeas corpus is a ‘guard
against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction
through appeal.” Harrington, 131 S. Ct. at 786 (quoting
Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens,
J., concurring)). “It preserves authority to issue the writ in
cases where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with this
Court’s precedents.” Id.
Significantly in this regard, even on direct appeal from a
judgment of conviction, federal courts have upheld the
exclusion of statements under Rule 804(b)(3) in
circumstances similar to those presented here. United States
v. Moore, 651 F.3d 30 (D.C. Cir. 2011) (per curiam),
observed that the Rule “contemplates that some out-of-court

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admissions of guilt will be excluded, despite their relevance,
because they possess insufficient indications of
trustworthiness,” and upheld the exclusion of a third-party
confession where the declarant “contradicted his statement
multiple times.” Id. at 83. Moreover, it went on to collect
cases from other circuits holding that “such contradictions
can alone render an otherwise admissible statement
untrustworthy.” Id. (citing United States v. Jackson, 540 F.3d
578, 589–90 (7th Cir. 2008) (“[A] lot of corroboration would
be needed to admit the [conflicting] hearsay statements of an
incredible and untrustworthy declarant.”); United States v.
Lumpkin, 192 F.3d 280, 287 (2d Cir. 1999) (inconsistency in
statements led to finding that “the proposed hearsay
statements are untrustworthy”); United States v. Bumpass,
60 F.3d 1099, 1102 (4th Cir. 1995) (consistency of
declarant’s statements a factor in assessing trustworthiness
under Rule 804(b)(3))); see also United States v. Groce,
999 F.2d 1189, 1190–91 (7th Cir. 1993) (upholding district
court’s conclusion that out-of-court statement lacked the
trustworthiness required under 804(b)(3) where the declarant
“gave several conflicting statements, most of which
contradicted the statement [sought to be admitted]”). We cite
these cases not for the purpose of suggesting that we would
necessarily have affirmed the conviction here on direct
appeal, but because they demonstrate that, under some
circumstances, it is reasonable to exclude a third-party
confession where the declarant made conflicting prior
statements.
In sum, the holding of the California Court of Appeal that
Cress’s admission was properly excluded did not constitute

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an unreasonable application of clearly established Supreme
Court law, nor was its decision based on an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d).
AFFIRMED.