Pedro Trejo v. Greg Lewis

Filing 30

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Jesus G. Bernal. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 R&R) (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 PEDRO TREJO, ) NO. CV 13-1354-JGB(E) ) Petitioner, ) ) v. ) REPORT AND RECOMMENDATION OF ) GREG LEWIS, Warden, ) UNITED STATES MAGISTRATE JUDGE ) Respondent. ) ______________________________) 16 17 18 This Report and Recommendation is submitted to the Honorable 19 Jesus G. Bernal, United States District Judge, pursuant to 28 U.S.C. 20 section 636 and General Order 05-07 of the United States District 21 Court for the Central District of California. 22 23 PROCEEDINGS 24 25 Petitioner filed an unsigned “Petition for Writ of Habeas Corpus 26 By a Person in State Custody” on February 25, 2013. 27 contains the single claim that “the trial court erred in finding due 28 diligence in violation of [Petitioner’s] confrontation rights” The Petition 1 (Petition, p. 5). 2 3 The case initially was assigned to Magistrate Judge Jacqueline 4 Chooljian. On February 28, 2013, the Court issued an “Order Directing 5 Petitioner to File Signed/Verified Copy of Petition.” 6 not file a timely signed and verified Petition. 7 March 29, 2013, the Court issued an Order to Show Cause, ordering 8 Petitioner to show cause why the Court should not dismiss the Petition 9 for failure to prosecute. Petitioner did Therefore, on 10 11 Petitioner did not file a timely response to the Order to Show 12 Cause. Therefore, on May 2, 2013, Judge Chooljian issued a Report and 13 Recommendation recommending dismissal of the Petition without 14 prejudice for failure to prosecute. 15 16 On May 17, 2013, Petitioner filed Objections to the Report and 17 Recommendation, together with a signed and verified copy of the 18 Petition. 19 withdrawing the May 2, 2013 Report and Recommendation and discharging 20 the Order to Show Cause. On May 21, 2013, Judge Chooljian issued a Minute Order 21 22 On June 7, 2013, Respondent filed a “Notice of Related Case,” 23 referencing the then-pending federal petition of Santos Aguilar, one 24 of Petitioner’s co-defendants. 25 JGB(E). 26 undersigned Magistrate Judge. 27 /// 28 /// See Aguilar v. Lewis, CV 13-1747- On June 12, 2013, the present action was transferred to the 2 1 2 On July 22, 2013, Respondent filed an Answer. Petitioner did not file a Reply within the allotted time. 3 4 BACKGROUND 5 6 The State charged Petitioner and four co-defendants with the 7 murder of Ivan Perez and conspiracy to commit the murder, and alleged 8 various enhancements including firearm and gang enhancements (Clerk’s 9 Transcript [“C.T.”] 264-70). A jury found Petitioner guilty of 10 conspiracy to commit murder, and found true a gang enhancement and 11 various firearm enhancements (Reporter’s Transcript [“R.T.”] 2107-08; 12 C.T. 670). 13 murder (R.T. 2106-07; C.T. 669). 14 fifty years to life (C.T. 727-29; R.T. 2412). The jury found Petitioner not guilty of first degree Petitioner received a sentence of 15 16 The Court of Appeal affirmed the judgment (Respondent’s Lodgments 17 6, 7; see People v. Trejo, 2012 WL 375441 (Cal. App. Feb. 2012, as 18 modified Feb. 23, 2012)). 19 Petitioner’s petition for review summarily (Respondent’s Lodgment 9). The California Supreme Court denied 20 21 SUMMARY OF TRIAL EVIDENCE 22 23 The following summary is taken from the opinion of the California 24 Court of Appeal in People v. Trejo, 2012 WL 375441 (Cal. App. Feb. 25 2012, as modified Feb. 23, 2012). 26 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S. Ct. 2766 (2013) 27 (presuming correct statement of facts drawn from state court 28 decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) See Runningeagle v. Ryan, 686 F.3d 3 1 (taking factual summary from state appellate decision). 2 3 On July 29, 2007, J.J., who was then ten years old, was 4 with his mother in a car on 58th Place in Los Angeles 5 County, when he heard two or three gunshots. 6 in a small car and the leg of a person who appeared to be 7 getting into the car. 8 light blue SUV. 9 Perez lying in a gutter. 10 He saw people The car drove off, followed by a When the police arrived, they found Ivan Perez died from two bullet wounds to his head, including one “close contact shot.” 11 12 Homicide Detective Jonas Shipe of the Los Angeles 13 County Sheriff’s Department investigated the shooting and 14 learned that Perez was a member of the Florencia 13 gang 15 with the moniker “Blackie.” 16 before he was killed, Perez had been arrested along with 17 fellow gang member Javier Rangel. 18 given to the police by Javier’s sister Claudia Rangel, which 19 was recorded and played at trial and the preliminary 20 hearing, during that incident Perez had displayed a gun at a 21 car wash, someone fought with him, and Javier jumped into 22 the fight.1 On June 21, 2007, about a month According to a statement 23 24 No one from the Rangel family testified at trial. 25 Testimony given at the preliminary hearing by Claudia and 26 her mother, Marta Moreno, was read at trial. Claudia 27 1 28 Because they have the same last name, we will refer to the siblings by their first names. 4 1 testified at the preliminary hearing that on the day Perez 2 was killed several people came to her house three different 3 times to see Javier, including appellants and Perez. 4 recognized some of the people as Florencia gang members, and 5 most were much older than Perez and Javier. 6 appellant say that Perez or Javier had “snitched on the 7 gun.” 8 said, “I’m going to shoot both of these fools right here.” 9 He was told not to shoot anyone at the house because Claudia She She heard At some point, a man holding a gun in the backyard 10 and her baby were there. Claudia’s other brother Jonathan 11 Rangel was also home at the time. 12 13 During the final visit to Claudia’s house, appellant 14 Trejo took Perez and Javier to the backyard and told them to 15 fight, which they did for about four minutes. 16 and others then took Perez to a car where others were 17 waiting, and appellant Trejo placed Perez in the rear middle 18 seat. 19 Javier remained at the house. 20 returned to the house and told Javier that Perez had been 21 killed, though he did not say who had done the killing. 22 Trejo told Javier to say that a rival gang had killed Perez 23 if anyone asked questions about his death. Appellants Several cars, including a light blue SUV, drove away. About 30 minutes later, Trejo 24 25 Marta Moreno testified at the preliminary hearing that on 26 the day of the killing she returned home to find several people 27 she did not know, either in cars or leaving the back of her 28 house. Her children were at home with Perez, who left with the 5 1 others. Later that day, she saw Javier with a black eye or 2 injury to his face. 3 4 Detective Dean Camarillo of the Los Angeles County 5 Sheriff’s Department testified as a gang expert. He was 6 familiar with the Florencia 13 gang, and first met Perez and 7 Javier in 2005 or 2006 when Perez was 12 or 13 years old. 8 Both boys told him they were members of Florencia. 9 was killed in an area claimed by Florencia. Perez Appellants were 10 also Florencia members and had tattoos indicating their gang 11 membership. 12 “Demon” and “Crash,” and appellant Marquez had the monikers 13 of “Chuko” and “Necio.” 14 in Hispanic gangs, members who are perceived as snitches 15 will generally be killed, if the killing is authorized by 16 more senior members of the gang. 17 believed that the fight between Perez and Javier was 18 intended to settle the differences between them arising from 19 their accusing each other of having been the snitch. 20 opined that the killing was committed for the benefit of, in 21 association with, and at the direction of the Florencia 13 22 gang. Appellant Trejo had the gang monikers of Detective Camarillo testified that Detective Camarillo He 23 24 (Respondent’s Lodgment 6, pp. 2-4; see People v. Trejo, 2012 WL 25 375441, at *1-2). 26 /// 27 /// 28 /// 6 1 STANDARD OF REVIEW 2 3 Under the “Antiterrorism and Effective Death Penalty Act of 1996” 4 (“AEDPA”), a federal court may not grant an application for writ of 5 habeas corpus on behalf of a person in state custody with respect to 6 any claim that was adjudicated on the merits in state court 7 proceedings unless the adjudication of the claim: 8 decision that was contrary to, or involved an unreasonable application 9 of, clearly established Federal law, as determined by the Supreme (1) “resulted in a 10 Court of the United States”; or (2) “resulted in a decision that was 11 based on an unreasonable determination of the facts in light of the 12 evidence presented in the State court proceeding.” 13 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. 14 Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 15 (2000). 28 U.S.C. § 16 17 “Clearly established Federal law” refers to the governing legal 18 principle or principles set forth by the Supreme Court at the time the 19 state court renders its decision on the merits. 20 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). 21 A state court’s decision is “contrary to” clearly established Federal 22 law if: 23 Court law; or (2) it “confronts a set of facts. . . materially 24 indistinguishable” from a decision of the Supreme Court but reaches a 25 different result. 26 omitted); Williams v. Taylor, 529 U.S. at 405-06. 27 /// 28 /// Greene v. Fisher, 132 (1) it applies a rule that contradicts governing Supreme See Early v. Packer, 537 U.S. at 8 (citation 7 1 Under the “unreasonable application prong” of section 2254(d)(1), 2 a federal court may grant habeas relief “based on the application of a 3 governing legal principle to a set of facts different from those of 4 the case in which the principle was announced.” 5 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 6 U.S. at 24-26 (state court decision “involves an unreasonable 7 application” of clearly established federal law if it identifies the 8 correct governing Supreme Court law but unreasonably applies the law 9 to the facts). Lockyer v. Andrade, A state court’s decision “involves an unreasonable 10 application of [Supreme Court] precedent if the state court either 11 unreasonably extends a legal principle from [Supreme Court] precedent 12 to a new context where it should not apply, or unreasonably refuses to 13 extend that principle to a new context where it should apply.” 14 Williams v. Taylor, 529 U.S. at 407 (citation omitted). 15 16 “In order for a federal court to find a state court’s application 17 of [Supreme Court] precedent ‘unreasonable,’ the state court’s 18 decision must have been more than incorrect or erroneous.” 19 Smith, 539 U.S. 510, 520 (2003) (citation omitted). 20 court’s application must have been ‘objectively unreasonable.’” 21 at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 22 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th 23 Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005). 24 habeas court must determine what arguments or theories supported, 25 . . . or could have supported, the state court’s decision; and then it 26 must ask whether it is possible fairminded jurists could disagree that 27 those arguments or theories are inconsistent with the holding in a 28 prior decision of this Court.” Wiggins v. “The state Id. “Under § 2254(d), a Harrington v. Richter, 131 S. Ct. 770, 8 1 786 (2011). 2 2254(d)(1).” 3 relief may not issue unless “there is no possibility fairminded 4 jurists could disagree that the state court’s decision conflicts with 5 [the United States Supreme Court’s] precedents.” 6 condition for obtaining habeas corpus from a federal court, a state 7 prisoner must show that the state court’s ruling on the claim being 8 presented in federal court was so lacking in justification that there 9 was an error well understood and comprehended in existing law beyond 10 This is “the only question that matters under § Id. (citation and internal quotations omitted). Habeas Id. at 786-87 (“As a any possibility for fairminded disagreement.”). 11 12 In applying these standards, the Court looks to the last reasoned 13 state court decision, here the decision of the California Court of 14 Appeal. 15 2008). See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 16 DISCUSSION 17 18 19 Although the Confrontation Clause claim asserted in the Petition 20 is somewhat unclear, the claim is clarified by Petitioner’s brief on 21 appeal and petition for review to the California Supreme Court. 22 these documents, Petitioner argued that the introduction of the 23 preliminary hearing testimony of Claudia Rangel (“Claudia”) and Marta 24 Moreno (“Marta”) violated the Confrontation Clause because the 25 prosecution assertedly failed to show the requisite diligence in 26 attempting to locate these witnesses to testify at trial (see 27 Respondent’s Lodgments 3, 8). 28 /// 9 In 1 I. Background 2 3 California’s hearsay rule permits the admission of former 4 testimony if: (1) the witness is unavailable; and (2) the party 5 against whom the former testimony is offered was a party to the prior 6 proceeding and had the right and opportunity to cross-examine the 7 witness with an interest and motive similar to that which that party 8 has at the present hearing. 9 California Evidence Code section 240 defines the term “unavailable as See Cal. Evid. Code § 1291(a)(2). 10 a witness” to include a situation in which the proponent of the absent 11 witness’ statement “has exercised due diligence but has been unable to 12 procure his or her attendance by the court’s process.” 13 Code § 240(a)(5). Cal. Evid. 14 15 Claudia testified at Petitioner’s preliminary hearing on 16 July 29-31, 2008, and Petitioner’s counsel cross-examined her at that 17 time (C.T. 7-59). 18 Petitioner’s counsel elected not to cross-examine her (C.T. 117-32). 19 In December 2008, the prosecutor filed a motion seeking an order 20 requiring Claudia to post bail to assure her appearance at trial (C.T. 21 253-57). 22 unwillingness to testify, had made no effort to stay in contact with 23 detectives, and did not answer or return phone calls (C.T. 256-57). 24 Detectives allegedly had not heard from Claudia since late October 25 2008 (C.T. 257). 26 November 2008, Claudia had told the owner of the place where Claudia 27 then resided that the family intended to move to Mexico (C.T. 257). 28 The court granted the motion and issued a body attachment (C.T. 258- Marta also testified for the prosecution, although The motion indicated that Claudia reportedly had evinced an The motion also stated that, during the last week of 10 1 59). 2 3 On July 9, 2010, the trial court set a trial date of 4 September 21, 2010 (C.T. 328). On August 25, 2010, the prosecution 5 filed a motion to permit the reading at trial of the preliminary 6 hearing testimony of Claudia and Marta (C.T. 337-43). 7 counsel filed a written opposition (C.T. 349-52). 8 the court granted the motion (C.T. 371-72, 375-76, 493-94). 9 preliminary hearing testimony and portions of her taped interview to Petitioner’s After a hearing, 10 police were read to the jury (R.T. 1206-1328). 11 Claudia’s Marta’s preliminary hearing testimony also was read to the jury (R.T. 1329-41). 12 13 Claudia implicated Petitioner in the crime, testifying that: 14 (1) she and “Demon” (identified in other evidence as Petitioner) were 15 present in the back yard of the house when “Demon” ordered Perez and 16 Javier to fight; (2) one member of the group had a gun; (3) after the 17 fight the group left in a car with “Blackie”; and (4) some time 18 thereafter “Demon” returned and said they had “killed Blackie” (R.T. 19 1225-31, 1234-35, 1285, 1292, 1293, 1309-10, 1665). 20 telling detectives, truthfully, that after the fight between Javier 21 and “Blackie,” a co-defendant had walked “Blackie” to a car where 22 “Demon” and another person, “Tony,” were waiting (R.T. 1240-41, 1247, 23 1268, 1275-76). 24 in the middle seat (R.T. 1241, 1326-27). 25 the car with “Blackie” and “Tony” (R.T. 1288, 1327). 26 that later, after “Demon” returned, Claudia heard “Demon” tell her 27 brother that if the police asked what had happened to Ivan, he should 28 say “that it was the 38th Street,” referring to a rival gang (R.T. Claudia admitted Claudia said “Demon” exited the car and put “Blackie” 11 Claudia said “Demon” got in Claudia said 1 1233). 2 3 Marta did not inculpate Petitioner directly and said she did not 4 recall much about the incident. 5 the “cholos” who came to her house, but later said she recognized co- 6 defendant Valdez as one of the men (R.T. 1331-32, 1338-39). 7 admitted telling a detective that the “cholos” left and took “Blackie” 8 with them (R.T. 1334). 9 1336-37). 10 She testified she did not know any of She She denied seeing any man with a gun (R.T. Marta said Claudia told Marta they had to move “because we were all going to be killed” (R.T. 1315). 11 12 13 II. Summary of Evidence Presented at the Evidentiary Hearing in Superior Court 14 15 A. Testimony of Detective Jonas Shipe 16 17 Detective Jonas Shipe testified as follows: 18 19 At the time of the preliminary hearing, Claudia and Maria were in 20 custody as material witnesses (R.T. 6). Claudia had expressed fear 21 and was “semi uncooperative” (R.T. 16). After the preliminary hearing 22 the two were released and relocated (R.T. 6-7, 16-17). 23 oppose Claudia’s release, and the prosecutor did not then request a 24 bond to secure her presence for later proceedings, because the family 25 was relocated immediately after the preliminary hearing and “appeared 26 cooperative at that time” (R.T. 16-17, 29-30). 27 of Claudia, her baby, Marta, Marta’s boyfriend and Claudia’s two 28 brothers, was relocated to Oxnard, where they resided for 12 Shipe did not The family, consisting 1 approximately three months (R.T. 6-7, 31, 303). Officers were in 2 contact with the family on a regular basis in order to pay the rent 3 and to give them money for utilities, food and other items (R.T. 33- 4 34). 5 relocation, investigators believed they would be able to find the 6 witnesses later to subpoena them for trial (R.T. 17, 30-31). 7 last saw Claudia at the Oxnard location on August 13, 2008, although 8 there was phone contact with her after that date (R.T. 19-21, 32-33). Because the family appeared cooperative and “comforted” by the Shipe 9 10 Investigators lost contact with the family in December of 2008 11 (R.T. 7, 22). The owner of the apartment complex where the family 12 lived told police that the family packed up and fled in the middle of 13 the night (R.T. 7-8, 36). 14 to Mexico, but did not provide an address in Mexico or even identify 15 the state in Mexico to which the family purportedly had fled (R.T. 14- 16 15). 17 was home, and thereafter investigators were unable to locate the 18 boyfriend (R.T. 307-09). The owner said the family was going to go Investigators went to the home of Marta’s boyfriend, but no one 19 20 Shipe and another detective, Detective Ferguson, contacted the 21 confidential informant who had provided the original information 22 linking the two women to the case, but that contact did not help the 23 detectives find the family (R.T. 9). 24 various law enforcement resources including the California Warrant 25 System, “RAPS,” “CCHRS,” “Calgangs,” the Los Angeles County Booking 26 System, inmate locators for surrounding agencies, the Department of 27 Motor Vehicles and the Department of Children’s Services (R.T. 9-10, 28 42-43). 13 In 2008, investigators checked 1 In January of 2009, Shipe and Ferguson assigned the job of 2 locating the witnesses to the “major crimes surveillance team” tasked 3 with the duty of tracking down witnesses, comprised of six 4 investigators under the direction of Detective Juan Alvarado (R.T. 10, 5 36, 49-50). 6 including the Border Patrol, a “special bulletin” flyer bearing the 7 photographs of Claudia, Marta, Javier and Jonathan (R.T. 11-12, 314- 8 15). 9 addresses, which were also included on the flyer (R.T. 12-13). The team distributed to law enforcement agencies, The surveillance team unsuccessfully investigated four A 10 different surveillance team rechecked the addresses unsuccessfully in 11 2010 (R.T. 13-14). 12 13 During 2009 and 2010, investigators checked law enforcement 14 resources on a monthly basis (R.T. 10-11, 14). Investigators 15 performed property searches using Lexis-Nexis and checked hospitals 16 and coroner’s offices (R.T. 43-44, 54). 17 welfare system and determined that Claudia had used a credit card 18 until the card was “tapped out” (R.T. 44-45, 53). 19 using this card in 2008 or 2009, so this lead “dried up” (R.T. 45). 20 Investigators attempted to locate the father of Claudia’s child, but 21 Claudia had only given the authorities the father’s gang name (R.T. 22 321). 23 (R.T. 323). 24 October 20, 2008, their last contact with him (R.T. 46-47). 25 not contact Mexican authorities because the investigators did not know 26 whether the family was in Mexico and had no leads concerning in which 27 Mexican state the family might be found (R.T. 46). 28 /// Investigators checked the Claudia had stopped Investigators checked with Jonathan Rangel’s probation officer Authorities had interviewed Jonathan Rangel on 14 Shipe did 1 In March of 2009, investigators received a report that someone 2 had seen Claudia at a Fontana mall, and that Claudia probably was 3 living with her aunt in Fontana (R.T. 36-37, 39). 4 Shipe that Alvarado would “hook up” with Claudia when there was “time 5 to go snatch these folks” (R.T. 38). 6 himself and did not recall if Alvarado called her (R.T. 40). 7 did not investigate this lead himself, but the surveillance team log 8 showed that someone went to Fontana in May of 2009 (R.T. 38-39). 9 Shipe did not call Claudia’s aunt, although he had her phone number, 10 but he provided the number to Alvarado, who spoke Spanish (R.T. 40). 11 Shipe did not recall if Alvarado called the aunt (R.T. 40). Alvarado informed Shipe did not call the aunt Shipe 12 13 In May of 2010, a new surveillance team rechecked the addresses 14 and other law enforcement resources, without success (R.T. 13-14). 15 Also in May of 2010, an officer contacted immigration authorities, 16 without success (R.T. 54-55). 17 18 Shipe admitted he did not investigate Claudia’s cell phone 19 records, saying “it was probably something we should have done” (R.T. 20 311-12). 21 that her preliminary hearing testimony could be read at trial, saying 22 he preferred to have witnesses testify at trial (R.T. 45-46). Shipe denied that he failed to search “hard” for Claudia so 23 24 B. Testimony of District Attorney Investigator Gilbert Roldan 25 26 Gilbert Roldan, an investigator with the Los Angeles County 27 District Attorney’s Office, testified as follows: 28 /// 15 1 Following a request received on September 10, 2010, Roldan began 2 a search on September 16, 2010 (R.T. 332). Roldan checked the Justice 3 Data Interface Communication system, the Lexis database, the 4 Prosecution Information Management System, Los Angeles County booking 5 records, and a warrant database (R.T. 327-29). 6 hospitals in Los Angeles and San Bernardino Counties, the postal 7 service, the Employment Development Department, the Los Angeles and 8 San Bernardino County coroner’s offices, and approximately four 9 homeless shelters (R.T. 329-30, 335-36). Roldan checked 10 11 C. The Superior Court’s Ruling 12 13 In granting the prosecution’s motion, the Superior Court ruled 14 that, because it had taken eight months to “get to the preliminary 15 hearing,” it was “understandable” that the witnesses had been released 16 from material witness custody after the preliminary hearing (R.T. 17 610). 18 that the defendants had consented to all of the delay and had not 19 objected to the witnesses’ release (R.T. 610). 20 of no judge who would keep a witness in custody for years awaiting a 21 trial (R.T. 610). The court said that it had taken two years to get to trial and The court said it knew 22 23 The court further ruled that the relocation to Oxnard was 24 reasonable and a “great way to keep an eye on [the witnesses] (R.T. 25 610-11). 26 family disappeared (R.T. 611). 27 /// 28 /// The court deemed diligent the searches performed after the 16 1 D. The Court of Appeal’s Ruling 2 3 The Court of Appeal agreed, deeming the search for the witnesses 4 sufficiently diligent under the standards set forth in cases including 5 Barber v. Page, 390 U.S. 719 (1968) (Respondent’s Lodgment 6, pp. 8- 6 12; see People v. Trejo, 2012 WL 375441, at *4-7). 7 Appeal ruled that, after the family’s relocation, it was not 8 unreasonable for the prosecution to assume there was no need to take 9 “drastic measures” to assure the witnesses’ future attendance at trial The Court of 10 (Respondent’s Lodgment 6, p. 11; People v. Trejo, 2012 WL 375441 at 11 *6). 12 possibly could have done more, “the fact that ‘additional efforts 13 might have been made or other lines of inquiry pursued’” did not 14 indicate a lack of diligence (Respondent’s Lodgment 6, p. 12; People 15 v. Trejo, 2012 WL 375441, at *6 (citation omitted). The Court of Appeal also reasoned that, although investigators 16 17 III. Discussion 18 19 The Confrontation Clause prohibits the admission of an out-of- 20 court testimonial statement at a criminal trial unless the witness is 21 unavailable to testify and the defendant had a prior opportunity for 22 cross-examination. 23 (“Crawford”). 24 testimony was “testimonial” within the meaning of Crawford. Crawford v. Washington, 541 U.S. 36, 59 (2004) Neither party disputes that the witnesses’ prior 25 26 “The constitutional requirement that a witness be ‘unavailable’ 27 stands on separate footing that is independent of and in addition to 28 the requirement of a prior opportunity for cross-examination.” 17 United 1 States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007) (citations omitted). 2 A witness is not “unavailable” for purposes of the hearsay exception 3 for former testimony “‘unless the prosecutorial authorities have made 4 a good-faith effort to obtain [the witness’] presence at trial.’” 5 Hardy v. Cross, 132 S. Ct. 490, 493 (2011) (quoting Barber v. Page, 6 390 U.S. at 724-25); Windham v. Merkle, 163 F.3d 1092, 1102 (9th Cir. 7 1998); People v. Smith, 30 Cal. 4th 581, 609, 134 Cal. Rptr. 2d 1, 68 8 P.3d 302 (2003), cert. denied, 540 U.S. 1163 (2004) (the good faith 9 requirement of Barber v. Page is “similar” to due diligence 10 requirement of California Evidence Code section 240(a)(5)). 11 “the law does not require the doing of a futile act, and the extent of 12 the effort the prosecutor must make is a question of reasonableness.” 13 United States v. Olafson, 213 F.3d 435, 441 (9th Cir.), cert. denied, 14 531 U.S. 914 (2000) (citation, quotations and brackets omitted). However, 15 16 In Ohio v. Roberts, 448 U.S. 56 (1980), abrogated on other 17 grounds, Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court 18 held that the prosecution had made a good faith effort to locate the 19 unavailable witness, despite the prosecution’s failure to contact a 20 social worker who might have been able to assist in finding the 21 witness. 22 hindsight, may always think of other things,” the “great improbability 23 that such efforts would have resulted in locating the witness, and 24 would have led to her production at trial, neutralized any intimation 25 that a concept of reasonableness required their execution.” 26 76. 27 /// 28 /// Id. at 75-76. The Court held that, although “[one], in 18 Id. at 1 The United States Supreme Court recently addressed the 2 unavailability issue in a case somewhat similar to the present case. 3 See Hardy v. Cross, supra. 4 victim testified at the petitioner’s first trial prior to the grant of 5 a motion for a mistrial. 6 days before the commencement of the retrial, the prosecutor informed 7 the court that the witness could not be located. 8 before the trial was to begin, the prosecutor moved to have the 9 witness declared unavailable and to introduce her prior testimony at In that case, a kidnap and sexual assault Hardy v. Cross, 132 S. Ct. at 491. Nine Id. at 492. The day 10 the retrial. 11 although “extremely frightened,” had indicated after the first trial 12 her supposed willingness to testify at the retrial, and that the 13 prosecution had remained in “constant contact” with the witness and 14 her mother. 15 however, the witness disappeared. 16 and brother told investigators they did not know the witness’ 17 whereabouts. 18 home and that of her father, and contacted the witness’ parents and 19 other family members. 20 medical examiner, the witness’ school, the family of the witness’ old 21 boyfriend, the office of the state secretary of state, the welfare 22 department, the morgue, the public health department, the jail, the 23 post office, and immigration authorities. 24 before trial, the witness’ mother told a detective that the witness 25 had called two weeks previously, saying she did not want to testify 26 and would not return to the area. 27 /// 28 /// Id. Id. Id. The prosecutor told the court that the witness, Approximately three weeks before the retrial, Id. The witness’ mother, father Investigators made personal visits to the witness’ Id. Investigators also contacted the county Id. at 492-93. Id. at 493. 19 On the day 1 The trial court admitted the prior testimony and the state court 2 of appeals affirmed, ruling that the prosecution’s efforts met the 3 constitutional diligence standard. 4 States Court of Appeals for the Seventh Circuit disagreed, emphasizing 5 that investigators had not contacted the victim’s current boyfriend or 6 a school at which the victim once had been enrolled. 7 Supreme Court reversed the Seventh Circuit in a unanimous summary per 8 curiam disposition. 9 deferential AEDPA of review, the Seventh Circuit had erred in ruling Id. Id. On habeas review, the United Id. at 494. The The Supreme Court held that, under the 10 that the state court of appeals’ determination had been unreasonable. 11 Id. at 494-95. 12 “require the prosecution to exhaust every avenue of inquiry, no matter 13 how unpromising.” 14 more to the point, the deferential standard of review set out in 28 15 U.S.C. § 2254(d) does not permit a federal court to overturn a state 16 court’s decision on the question of unavailability merely because the 17 federal court identifies additional steps that might have been taken.” 18 Id. The Supreme Court stated that the Constitution did not Id. at 495. The Supreme Court continued: “And, 19 20 Similarly here, this Court cannot deem unreasonable the state 21 courts’ diligence determination. 22 Marta resemble those described in Hardy v. Cross and far exceed the 23 efforts deemed deficient in Barber v. Page, 390 U.S. at 723 (“the 24 State made absolutely no effort to obtain the presence of [the 25 witness] at trial other than to ascertain that he was in federal 26 prison outside Oklahoma”). 27 that the authorities should have kept Claudia and Marta in custody 28 following the preliminary hearing, neither the prosecution nor the The efforts to locate Claudia and Although Petitioner appears to contend 20 1 state court acted unreasonably in deciding that the relocation of the 2 family would resolve any issues regarding Claudia’s and Marta’s 3 alleged fear of testifying. 4 investigators should have undertaken further investigation,2 the 5 efforts that the detectives and investigators did undertake, over a 6 period of years, were reasonable. 7 efforts utilized to locate Claudia and Marta belie any unsupported and 8 speculative allegation that the prosecution did not really want to 9 find them. Although Petitioner may argue that The depth and breadth of the Furthermore, no “clearly established” Supreme Court law 10 requires the prosecution to attempt to subpoena a witness who has gone 11 into hiding. 12 of a subpoena may do little good if a sexual assault victim is so 13 fearful of an assailant that she is willing to risk his acquittal by 14 failing to testify at trial”). See Hardy v. Cross, 132 S. Ct. at 494-95 (“the issuance 15 16 Therefore, the Court of Appeal’s rejection of Petitioner’s 17 Confrontation Clause claim was not contrary to, or an objectively 18 unreasonable application of, any clearly established Federal law as 19 determined by the United State Supreme Court. 20 2254(d). 21 /// 22 /// 23 /// See 28 U.S.C. § Petitioner is not entitled to habeas relief. 24 25 26 27 28 2 In his California Supreme Court petition for review, for example, Petitioner argued that Shipe should have done more investigation himself rather than relying on the surveillance team, and in particular should have followed up more promptly on the suggestion that Claudia was staying with her aunt in Fontana (Respondent’s Lodgment 8, pp. 6-8). 21 1 RECOMMENDATION 2 3 For the foregoing reasons, IT IS RECOMMENDED that the Court issue 4 an Order: (1) accepting and adopting this Report and Recommendation; 5 and (2) denying and dismissing the Petition with prejudice. 6 7 8 DATED: September 9, 2013. 9 10 11 12 _____________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 If the District Judge enters judgment adverse to Petitioner, the 10 District Judge will, at the same time, issue or deny a certificate of 11 appealability. 12 and Recommendation, the parties may file written arguments regarding 13 whether a certificate of appealability should issue. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Within twenty (20) days of the filing of this Report

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