Robert Villalobos v. Martin D Bitter

Filing 46

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS by Magistrate Judge Jean P. Rosenbluth. IT THEREFORE IS ORDERED that the Petition is DENIED, Petitioner's request for an evidentiary hearing is DENIED, and judgment be entered dismissing this action with prejudice. (See Order for details) 2 (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBERT VILLALOBOS,
Petitioner,

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v.

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MARTIN D. BITER, Warden,
Respondent.

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Case No. EDCV 13-2373-JPR
MEMORANDUM OPINION AND ORDER
DENYING PETITION FOR WRIT OF
HABEAS CORPUS

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PROCEEDINGS
On December 27, 2013, Petitioner filed a Petition for Writ

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of Habeas Corpus by a Person in State Custody and a memorandum of

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points and authorities, challenging his 2010 murder conviction

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and requesting an evidentiary hearing.

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at 39.)1

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stay the case under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)

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(as amended), overruling on other grounds recognized by Robbins

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v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007), so that he could

(Pet. at 2; Mem. P. & A.

The Court thereafter granted Petitioner’s motion to

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Because the Petition and proposed First Amended Petition
are not sequentially numbered, the Court uses the pagination from
its official Case Management/Electronic Case Filing system.
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exhaust additional claims in state court.

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the Court lifted the stay and directed Petitioner to file a

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motion for leave to amend the Petition.

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Petitioner did so; he also lodged a proposed First Amended

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Petition (“FAP”) and consented to having a U.S. Magistrate Judge

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conduct all further proceedings in his case, including entering

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final judgment.

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Magistrate Judge on April 2, 2015.

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On August 11, 2014,

On March 8, 2015,

Respondent consented to proceed before a

On April 8, 2015, Respondent opposed the motion to amend and

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moved to dismiss the original Petition as untimely.

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2015, Petitioner filed an opposition to the motion to dismiss.

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On October 9, 2015, the Court denied Respondent’s motion to

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dismiss, denied Petitioner’s motion for leave to file the

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proposed FAP, and ordered Respondent to file an answer to the

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original Petition.

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On May 18,

On November 2, 2015, Respondent filed an Answer and

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Memorandum of Points and Authorities.

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On December 14, 2015,

Petitioner filed a Reply.2

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In his Reply, Petitioner reasserts some of the claims he
previously attempted to raise in his proposed FAP. (Compare
Reply at 4-5 (arguing that insufficient evidence showed that
Petitioner was stabber), 4 (arguing that “the trial court erred
in disallowing defense counsel to inquire about the particulars
of Erik[] [Sauceda’s] current felony matters as it
unconstitutionally restricted Petitioner’s right to
confrontation”), 5 (arguing that trial court erred in preventing
Petitioner from calling two witnesses who would have testified
that Erik punched them in face) with Proposed FAP at 5, 26-31
(arguing that insufficient evidence showed that Petitioner was
stabber), 59-61 (arguing that “the trial court erred in
disallowing defense counsel to inquire about the particulars of
Erik’s current felony matters as it unconstitutionally restricted
Petitioner’s right to confrontation”), 57 (arguing that trial
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For the reasons discussed below, the Court denies the

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Petition and Petitioner’s request for an evidentiary hearing and

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dismisses this action with prejudice.

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PETITIONER’S CLAIMS
I.

The trial court prejudicially erred in excluding the

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testimony of the defense’s proposed knife expert, violating

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Petitioner’s constitutional right to due process and to present a

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defense.

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II.

(Pet. at 6; Mem. P. & A. at i.)
Insufficient evidence supported the jury’s finding that

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the murder was willful, deliberate, and premeditated.

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(Pet. at

6; Mem. P. & A. at i.)

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BACKGROUND

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On May 6, 2010, Petitioner was convicted by a Riverside

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County Superior Court jury of first-degree murder.

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9, 6 Clerk’s Tr. at 1461-63.)

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that Petitioner used a knife in committing his crime.

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1464.)

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life in prison.

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Doc. 8, 15 Rep.’s Tr. at 2856-57.)

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(Lodged Doc.

The jury found true the allegation
(Id. at

On July 23, 2010, Petitioner was sentenced to 26 years to
(Lodged Doc. 9, 7 Clerk’s Tr. at 1603-04; Lodged

Petitioner appealed, raising the two claims in the Petition.

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(Lodged Doc. 11.)

On July 17, 2012, the California Court of

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Appeal affirmed the judgment.

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filed a petition for review (Lodged Doc. 15), which the

(Lodged Doc. 14.)

Petitioner

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court deprived Petitioner of fair trial by preventing him from
calling two witnesses who would have testified that Erik punched
them in face).) Because the Court already found that those
claims are untimely and do not relate back to the claims in the
original Petition (see Oct. 9, 2015 Mem. Op.), it does not
address them here.
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California Supreme Court summarily denied on September 19, 2012

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(Lodged Doc. 16).

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On September 11, 2013, Petitioner constructively filed a

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habeas petition in the state superior court, raising three claims

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not related to those in the Petition.3

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October 22, 2013, the superior court denied the petition.

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(Lodged Doc. 3.)

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filed a petition in the state court of appeal, raising the same

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three claims as the earlier petition.

(Lodged Doc. 2.)

On

On November 14, 2013, Petitioner constructively

(Lodged Doc. 4.)

On

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December 4, 2013, the court of appeal summarily denied the

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petition.

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(Lodged Doc. 5.)

On April 20, 2014, Petitioner constructively filed a habeas

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petition in the state supreme court, raising claims that included

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one corresponding to ground two of the original Petition.

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(Lodged Doc. 6.)

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denied the petition.

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On July 9, 2014, the supreme court summarily
(Lodged Doc. 7.)
SUMMARY OF THE EVIDENCE

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Because Petitioner challenges the sufficiency of the

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evidence to support his conviction, the Court has independently

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reviewed the state-court record.

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1002, 1008 (9th Cir. 1997).

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finds that the following statement of facts from the California

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Court of Appeal opinion fairly and accurately summarizes the

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evidence.

See Jones v. Wood, 114 F.3d

Based on that review, the Court

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Petitioner dated his petition “11-14-13” (Lodged Doc. 2 at
7) and “this 11 Day of 14, 2013” (id. at 34), but it was filestamped by the state court on September 20, 2013 (id. at 1), and
the proof of service states that he placed it in the mail on
September 11 (id., attach. proof of serv.).
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A. The People’s Case

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On August 28, 2008, the date of the murder in this

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case, George Hernandez (the victim), Eloy Luna, and Max

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Reyes

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girlfriend.

were

friends.

Corina

Vasquez

was

Reyes’s

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Manuel and Angelica Sauceda lived on North Torn

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Ranch Road in Lake Elsinore with their two sons, Erik and

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Cristian Sauceda, their two daughters, and their niece,

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Maria

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Guadalupe

Sanchez

Saucedo.4

Edgar

Gomez

was

Maria’s boyfriend.
Erik and Luna had been high school friends.

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was acquainted with Hernandez.

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Erik

[Petitioner] and Erik

were friends.

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The Triple Six Kings, also known as TSK, was a

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“tagging crew” that spray-painted graffiti in certain

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areas of Lake Elsinore. Out Causing Panic, also known as

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OCP or TRS (for Torn Ranch Street), was a rival tagging

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crew in that city.
Reyes was a member of TSK and was actively involved

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in its tagging activities.

Erik and Cristian associated

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with members of the rival OCP tagging crew.

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aware of Erik’s association with OCP.

Luna was

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About a week before August 28, 2008, OCP members

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drove by the home of a TSK member who was a friend of

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Luna and fired a gunshot in the air in front of the home.

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Because the Sauceda family members share the same last
name, the court of appeal referred to them by their first names.
This Court does the same.
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Erik was in the car with the OCP crew.

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In another incident that occurred prior to the

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murder, OCP tagged the home of Jerry Martinez in Lake

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Elsinore, a mutual friend of Hernandez, Luna, and Reyes,

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while Martinez was in custody in juvenile hall. The home

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was tagged in four places with graffiti that said “OCP”

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and “TRS.”

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blocks from the Saucedas’ home.

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Martinez’s home was located a couple of

On August 28, 2008, [Petitioner] visited Erik and

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Cristian at their home.

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Oakland

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underneath it.

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the murder, Erik told detectives in a recorded statement

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that [Petitioner] had a long knife that had a fixed

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stainless steel blade with small curves on it.[FN2]

Raiders

jersey

[Petitioner] was wearing an
with

a

white

muscle

shirt

During the investigation that followed

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[FN2] At trial, Erik changed his story and

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claimed the knife was a clip-on pocket

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knife and he lied to the detectives when

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he described it as a curvy, fixed-blade

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knife.

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Hernandez, Luna, and Reyes discussed the OCP’s

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tagging of Martinez’s home, which upset them.

As a

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result of their being upset, Hernandez, Luna, and Reyes

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decided to cover up the graffiti and then confront Erik

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about both the tagging of Martinez’s home and the OCP

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drive-by shooting.

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Late that night, Vasquez drove Hernandez, Luna, and

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Reyes to North Torn Ranch Road, parked near the Saucedas’
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home and stayed in the car after Hernandez, Luna, and

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Reyes got out and approached the house, where one of them

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politely asked Maria to get Erik because they wanted to

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speak with him.

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friends, Maria replied that she would get him, and she

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then walked into the house through the front door.

Assuming the three men were Erik’s

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Erik, followed a few minutes later by [Petitioner]

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and Cristian, came to the front doorway pointing a BB gun

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and angrily asked Hernandez, Luna, and Reyes, who were

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wearing hoodies, “Why are you here?”

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Hernandez, Reyes, and Luna accused Erik of being

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involved in the tagging of Martinez’s home.

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down the BB gun and confronted Hernandez.

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Hernandez began pushing each other and then moved to the

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middle of the street, where they began fist fighting.

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Erik threw
Erik and

Erik punched Hernandez in the face, knocking him to

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the ground.

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punched him in the stomach and ribs.

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Hernandez used a weapon during the fight.

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Erik then kicked him twice in the head and
Neither Erik nor

Luna punched Erik, knocking him down in the middle

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of the street.

Hernandez struggled to stand up and then

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walked across the street away from the fight and in front

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of Vasquez’s car to a neighbor’s house.

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[Petitioner], who had returned to the Saucedas’

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house, brought the Saucedas’ two pitbulls to the front

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door.

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blade.

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knife as he exited the house.

[Petitioner] was holding a knife with a four-inch
[Petitioner] removed the sheath or case of the

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After releasing the pitbulls and removing the knife

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from its sheath, [Petitioner] ran across the street past

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Erik and rushed Hernandez at full stride. An altercation

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then took place between [Petitioner] and Hernandez near

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Vasquez’s car and the lawn of a house across the street

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from the Saucedas’ home. [Petitioner] and Hernandez were

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swinging at each other and wrestling on the ground where

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blood was later found.

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Soon thereafter, Luna helped Hernandez to stand up,

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but Hernandez “wasn’t all there.”

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walk

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Vasquez’s car, and Hernandez got into the back seat of

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the passenger side of the car.

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the driver’s side window and punched Vasquez in the face.

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Vasquez testified she glanced at [Petitioner’s] right

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hand, which was on the car door, and saw he was holding

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a knife which she described as a pocketknife, but she

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stated she did not get a long look at the knife.

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across

the

driveway

or

Luna helped Hernandez

down

the

sidewalk

to

[Petitioner] leaned into

Luna got in the back seat with Hernandez, and Reyes

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sat in the front passenger seat.

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and could not drive.

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gear, grabbed the steering wheel, stepped on the gas

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pedal, and drove away.

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seen again.

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Vasquez was hysterical

Reyes leaned over, put the car in

[Petitioner] fled and was not

Hernandez was taken to the hospital.

Hernandez was

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not conscious when they arrived, and he died of a stab

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wound sometime after 5:00 a.m.

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Dr. Mark Fajardo, a forensic pathologist employed by
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the

Riverside

County

Sheriff-Coroner,

performed

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Hernandez’s autopsy and testified that Hernandez suffered

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two stab wounds in his mid- to lower back, and the fatal

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wound penetrated about four inches into Hernandez’s body,

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severing the renal artery where it connected to the aorta

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and resulting in extensive blood loss which was the main

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cause of death.

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At around 11:40 p.m. on the night of the murder,

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Erik and Cristian discussed the incident with Deputy

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Dwayne

Parrish

of

the

Riverside

County

Sheriff’s

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Department and showed him where the fight occurred.

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pool of blood was found in the sidewalk gutter across the

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street from the Saucedas’ home.

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later discovered that blood initially pooled in the front

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lawn of the house across the street from the Saucedas’

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home and saturated the grass before running down the

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driveway and sidewalk into the gutter.

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found at the murder scene.

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B. The Defense Case

A

Homicide detectives

No weapons were

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[Petitioner] presented witnesses who indicated he

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had reasons to be living in Las Vegas at the time of his

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arrest because his uncle, Delfino Rubi, lived there and

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[Petitioner] went there to find work.

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A captain at the Los Angeles Fire Department who was

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also a licensed paramedic and had responded to several

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hundred

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pooling of blood is not always found at stabbing scenes.

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A former gang member testifying as a defense gang

stabbing

scenes

testified

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that

significant

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expert testified that if someone had gang associations 15

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or

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memorabilia does not necessarily mean he still has ties

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to the gang.

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20

years

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his

current

possession

of

gang

(Lodged Doc. 14 at 2-7 (footnote omitted).)

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7

ago,

STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996:

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An application for a writ of habeas corpus on behalf of

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a person in custody pursuant to the judgment of a State

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court shall not be granted with respect to any claim that

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was adjudicated on the merits in State court proceedings

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unless the adjudication of the claim — (1) resulted in a

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decision

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unreasonable application of, clearly established Federal

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law, as determined by the Supreme Court of the United

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States; or (2) resulted in a decision that was based on

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an unreasonable determination of the facts in light of

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the evidence presented in the State court proceeding.

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Under AEDPA, the “clearly established Federal law” that

that

was

contrary

to,

or

involved

an

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controls federal habeas review consists of holdings of Supreme

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Court cases “as of the time of the relevant state-court

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decision.”

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Supreme Court has “repeatedly emphasized, . . . circuit precedent

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does not constitute ‘clearly established Federal law, as

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determined by the Supreme Court.’”

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429, 431 (2014) (per curiam) (quoting § 2254(d)(1)).

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circuit precedent “cannot ‘refine or sharpen a general principle

Williams v. Taylor, 529 U.S. 362, 412 (2000).

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As the

Glebe v. Frost, 135 S. Ct.
Further,

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of Supreme Court jurisprudence into a specific legal rule that

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[the] Court has not announced.’”

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(2014) (per curiam) (quoting Marshall v. Rodgers, 133 S. Ct.

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1446, 1451 (2013) (per curiam)).

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Lopez v. Smith, 135 S. Ct. 1, 4

Although a particular state-court decision may be both

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“contrary to” and “an unreasonable application of” controlling

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Supreme Court law, the two phrases have distinct meanings.

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Williams, 529 U.S. at 391, 412-13.

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“contrary to” clearly established federal law if it either

A state-court decision is

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applies a rule that contradicts governing Supreme Court law or

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reaches a result that differs from the result the Supreme Court

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reached on “materially indistinguishable” facts.

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Packer, 537 U.S. 3, 8 (2002) (per curiam) (citation omitted).

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state court need not cite or even be aware of the controlling

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Supreme Court cases, “so long as neither the reasoning nor the

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result of the state-court decision contradicts them.”

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Early v.
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Id.

State-court decisions that are not “contrary to” Supreme

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Court law may be set aside on federal habeas review only “if they

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are not merely erroneous, but ‘an unreasonable application’ of

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clearly established federal law, or based on ‘an unreasonable

21

determination of the facts’ (emphasis added).”

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(quoting § 2254(d)).

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identifies the governing legal rule may be rejected if it

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unreasonably applies the rule to the facts of a particular case.

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Williams, 529 U.S. at 407-08.

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for such an “unreasonable application,” however, a petitioner

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must show that the state court’s application of Supreme Court law

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was “objectively unreasonable.”

Id. at 11

A state-court decision that correctly

To obtain federal habeas relief

Id. at 409-10.
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In other words,

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habeas relief is warranted only if the state court’s ruling was

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“so lacking in justification that there was an error well

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understood and comprehended in existing law beyond any

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possibility for fairminded disagreement.”

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562 U.S. 86, 103 (2011).

Harrington v. Richter,

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Here, Petitioner raised both claims in the Petition on

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direct appeal (Lodged Doc. 11), and the court of appeal rejected

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the state-law aspects of them on the merits in a reasoned

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decision (Lodged Doc. 14).

The Court assumes any federal claims

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were also rejected on the merits, see Johnson v. Williams, 133 S.

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Ct. 1088, 1091-92 (2013), particularly given that Petitioner has

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not argued otherwise.

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Petitioner’s petition for review.

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then raised claim two in a habeas petition in the state supreme

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court (Lodged Doc. 6), which summarily denied it (Lodged Doc. 7).

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The Court therefore “looks through” the supreme court’s silent

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denials to the court of appeal’s decision as the basis for the

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state courts’ judgment.

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803-04 (1991).

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claims on the merits, the Court’s review is limited by AEDPA

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deference.

(Lodged Doc. 16.)

Petitioner

See Ylst v. Nunnemaker, 501 U.S. 797,

Because the court of appeal adjudicated the

See Richter, 562 U.S. at 100.
DISCUSSION

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The state supreme court summarily denied

I.

Petitioner’s Claim Based on Exclusion of “Expert” Evidence

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Does Not Warrant Habeas Relief

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Petitioner claims the trial court violated his

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constitutional right to due process and to present a defense by

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excluding the testimony of the defense’s proposed knife expert,

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Brian Xan Martin.

(Mem. P. & A. at 13-25; Reply at 2-7.)
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Petitioner argues that the “exclusion of Martin’s testimony

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eliminated [Petitioner’s] defense, namely that the knife that he

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was alleged to be carrying” — which he claims had a double-edged

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wavy or curved blade — “could not have caused the wounds in the

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victim.”

(Mem. P. & A. at 15-16.)

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A.

Applicable Law

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A defendant generally has a constitutional right to

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meaningfully present a complete defense in his behalf.

Chambers

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v. Mississippi, 410 U.S. 284, 294 (1973); see Moses v. Payne, 555

10

F.3d 742, 757 (9th Cir. 2009) (as amended) (defendant’s right to

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present defense stems from both 14th Amendment right to due

12

process and Sixth Amendment right to compel witnesses).

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defendant does not have license to present any evidence he

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pleases, however; for instance, due process is not violated by

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the exclusion of evidence that is only marginally relevant,

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repetitive, or more prejudicial than probative.

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Kentucky, 476 U.S. 683, 689-90 (1986); see Chambers, 410 U.S. at

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302 (“[T]he accused, as is required of the State, must comply

19

with established rules of procedure and evidence designed to

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assure both fairness and reliability in the ascertainment of

21

guilt and innocence.”); Taylor v. Illinois, 484 U.S. 400, 410

22

(1988) (“The accused does not have an unfettered right to offer

23

testimony that is incompetent, privileged, or otherwise

24

inadmissible under standard rules of evidence.”).

25

A

Crane v.

Rather, the right is implicated only when exclusionary rules

26

infringe upon a “weighty interest of the accused” and are

27

“‘arbitrary’ or ‘disproportionate to the purposes they are

28

designed to serve.’”

Holmes v. South Carolina, 547 U.S. 319,
13

1

324-25 (2006) (citation omitted) (noting that arbitrary rules

2

exclude important defense evidence without legitimate reason);

3

see also Nevada v. Jackson, 133 S. Ct. 1990, 1992-93 (2013) (per

4

curiam) (finding that challenged evidentiary rule was supported

5

by “good reasons” and therefore that its constitutional propriety

6

“cannot be seriously disputed” (alteration omitted)).

7

The Supreme Court has not yet “squarely addressed” whether a

8

state court’s discretionary exclusion of evidence can ever

9

violate a defendant’s right to present a defense.

See Moses, 555

10

F.3d at 758-59 (considering challenge to state evidentiary rule

11

allowing discretionary exclusion of expert testimony favorable to

12

defendant); see also Brown v. Horell, 644 F.3d 969, 983 (9th Cir.

13

2011) (noting that no Supreme Court case has squarely addressed

14

issue since Moses); Aguilar v. Cate, 585 F. App’x 450, 450-51

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(9th Cir. 2014) (“it is not clearly established that the Due

16

Process Clause of the Fourteenth Amendment prohibits a trial

17

court from excluding defense expert testimony on the

18

unreliability of eyewitness identification”), cert. denied, 135

19

S. Ct. 1507 (2015).

20

opposite.

In fact, existing precedent suggests the

In Holmes, 547 U.S. at 326, the Court noted that

21

[w]hile the Constitution . . . prohibits the exclusion of

22

defense evidence under rules that serve no legitimate

23

purpose or that are disproportionate to the ends that

24

they are asserted to promote, well-established rules of

25

evidence permit trial judges to exclude evidence if its

26

probative value is outweighed by certain other factors

27

such as unfair prejudice, confusion of the issues, or

28

potential to mislead the jury.
14

1

See also Clark v. Arizona, 548 U.S. 735, 789 (2006) (“States have

2

substantial latitude under the Constitution to define rules for

3

the exclusion of evidence and to apply those rules to criminal

4

defendants.”).

5

B.

Relevant Facts

6

At trial, evidence was introduced showing that Erik had told

7

police that on the day of the stabbing, he had seen Petitioner

8

with a knife with a long, curvy, fixed blade, a white handle, and

9

a sheath.

(Lodged Doc. 8, 7 Rep.’s Tr. at 1044, 1049, 1051-53;

10

Lodged Doc. 9, 4 Clerk’s Tr. at 921-26.)

Erik drew a picture of

11

the knife for the police.

12

50.)

13

to the police about the wavy knife and that Petitioner had had a

14

folding pocketknife clipped to his pocket.

15

Rep.’s Tr. at 949-51, 7 Rep.’s Tr. at 1048-50.)

16

heard Reyes’s preliminary-hearing testimony that during the

17

fight, he saw Petitioner come out of the Saucedas’ house and

18

remove from a sheath a four-inch, fixed-blade knife with

19

“multiple curves.”5

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660, 666.)

21

white shirt punched her in the face while she was sitting in the

22

driver’s seat of her car; the man was holding a pocketknife,

23

although Vasquez admitted that she didn’t get a good look at it.6

(Lodged Doc. 8, 7 Rep.’s Tr. at 1049-

During his trial testimony, however, Erik said he had lied

(Lodged Doc. 8, 6
The jury also

(Lodged Doc. 9, 3 Clerk’s Tr. at 626-27,

Vasquez testified that during the fight, a man in a

24
5

25
26

Reyes was found to be unavailable to testify at trial, and
his preliminary-hearing testimony was read into the record.
(Lodged Doc. 8, 4 Rep.’s Tr. at 586-89, 5 Rep.’s Tr. at 605-06;
Lodged Doc. 9, 3 Clerk’s Tr. at 592, 599-668.)

27
6

28

Vasquez said a pocketknife was “a knife that you open and
close.” (Lodged Doc. 8, 2 Rep.’s Tr. at 268.)
15

1

(Lodged Doc. 8, 2 Rep.’s Tr. at 268-74, 3 Rep.’s Tr. at 369.)

2

Erik testified that he saw Petitioner go up to Vasquez’s car

3

during the fight and make a punching motion through the driver’s-

4

side window.

5

one else was seen with a knife on the day of the fight.7

6

Doc. 8, 3 Rep.’s Tr. at 454, 7 Rep.’s Tr. at 1062-64.)

7

(Lodged Doc. 8, 7 Rep.’s Tr. at 1034, 1143-46.)

No

(Lodged

Dr. Fajardo, a forensic pathologist employed by the

8

Riverside County Sheriff’s Coroner, testified regarding

9

Hernandez’s injuries and cause of death.

When asked whether

10

there was “any way really of knowing 100 percent what type of

11

weapon was used” in the stabbing, Dr. Fajardo responded, “No,

12

absolutely not.”

13

opined that the stab wounds were “consistent with a single-edged

14

weapon” because one wound had “an abrasion to the lower margin,

15

which is oftentimes caused by the dull portion of a single-edged

16

weapon.”

17

knife also could have caused Hernandez’s wounds because “[t]here

18

are ways for a double-edged weapon . . . to produce an abrasion,”

19

such as if the tip or one edge of the weapon is not very sharp.

(Lodged Doc. 8, 11 Rep.’s Tr. at 1715.)

(Id. at 1716.)

He

But he testified that a double-edged

20
21
22
23
24
25
26
27
28

7

Luna testified that he had had a folding pocketknife in
his pocket the night of the stabbing (Lodged Doc. 8, 3 Rep.’s Tr.
at 403-06), which the police later found in his truck (Lodged
Doc. 8, 12 Rep.’s Tr. at 2099). Luna testified that he hadn’t
realized he had the knife in his pocket until after the police
told him about it. (Lodged Doc. 8, 3 Rep.’s Tr. at 403-06.)
Luna testified that on the night of the stabbing, he did not tell
anyone in his group that he had the knife, he did not pull it out
at Erik’s house, and no one else in his group had a weapon.
(Id. at 404-05.) The police tested Luna’s knife for blood but
did not detect any. (Lodged Doc. 8, 12 Rep.’s Tr. at 2100-01.)
No one testified that they saw Luna with a knife on the day of
the fight.
16

1

(Id.)

2

possibility of a double edged weapon” and that a wound from a

3

wavy blade would not be different from one from a straight blade.

4

(Id. at 1717.)

5

He further testified that he was “not excluding the

Later in the trial, defense counsel asked the court to allow

6

Martin to testify as a “knife expert,” about “how a wavy knife

7

would not create the type of stab wound that was found on the

8

victim’s body”8 (Lodged Doc. 8, 12 Rep.’s Tr. at 2028-29) and

9

about “the different kind of knives” and their effect on “wound

10

shape” (id. at 2040-41).

The trial court conducted a California

11

Evidence Code section 402 hearing to determine whether Martin’s

12

testimony should be admitted.9

13

796.)

(Lodged Doc. 9, 4 Clerk’s Tr. at

14

At the hearing, Martin testified that he was

15

a

16

Research history on the subject. I have been employed at

17

Mesa Cutlery 17 consecutive years as a salesman and

18

representative for 15 to 20 different major brands of

weapons

specialist.

I

am

a

special

swordsman.

19
20
21
22
23
24
25
26
27
28

8

Petitioner attached to his Reply Martin’s resume, letter
to defense counsel with attached drawings, and four-page document
comparing single- and double-edged knives. (Reply, Ex. A.) It
appears that defense counsel relied on these documents during the
hearing on Martin. (See Lodged Doc. 8, 12 Rep.’s Tr. at 2040-41
(defense counsel stating that she was providing prosecutor with
two-page copy of Martin’s resume, a letter addressed to defense
counsel that included drawings, and four-page document with
drawings and comparisons of knives “with a copy for the Court
itself”).) But in any event, the information is redundant of
Martin’s testimony at the hearing.
9

Section 402(b) provides, in relevant part, that “[t]he
court may hear and determine the question of the admissibility of
evidence out of the presence or hearing of the jury.”
17

1

cutlery, from kitchen knives, pocket knives, swords,

2

manicure equipment, all the way down.

3

In addition to that, I own and maintain several

4

items of — historical items over a 12-year period and

5

have been collecting knives since I was nine years

6

old . . . .

7

(Lodged Doc. 8, 12 Rep.’s Tr. at 2043.)

8

on the panel of qualified experts in Orange County.

9

He testified that he was
(Id.)

Martin opined that it was “fairly easy to determine” what

10

kind of entry wound a particular type of knife would cause.

11

(Id.)

12

several blades and introduced them into the surface of a 10-pound

13

block of clay,” which gave “a very clean profile” showing the

14

type of “puncture wound” it would make.

15

described several types of knives and the shape of the openings

16

they made when pushed into clay.

17

testified that the wavy-bladed knife Erik had drawn for police

18

was a “cris blade,” a double-edged knife that would make a

19

diamond-shaped puncture wound.

20
21

He testified that “[o]n many occasions” he had “taken

(Id. at 2044.)

(Id. at 2045-58.)

Martin

He also

(Id. at 2048-51.)

Martin opined that Hernandez’s stab wounds were made by a
single-edged knife:

22

[The wound] does not have the characteristic shape of a

23

diamond, which would be indicative of a double-edged

24

blade.

25

and a thinner, more-tapered portion on the other.

26

suggests to me the similarity to the pie or wedge shaped

27

earlier stab as having been made by various single-edged

28

blades.

I see a pronounced rounded portion on one area,

18

That

1
2
3

(Id. at 2059.)
At the end of the hearing, the trial court denied the
defense’s request to call Martin as an expert:

4

[T]his is not a close call.

5

question in the Court’s mind that Mr. Martin is, indeed,

6

an expert in all — all matters of cutlery, no foundation

7

has

8

background.

9

be some misinformation here for the jury, because at this

10

time we don’t have the knife that was used to stab the

11

victim.

12

and the foundation has been laid of that, that clay was

13

similar to skin, and then we had photographs that were

14

lined up to show clay to skin, and then had a doctor

15

testify, that would be one thing, but we don’t have the

16

knife.

17
18
19

been

laid

in

terms

of

Although there is no

his

medical

training,

In fact, in some ways, I think there would

If we had the knife, and then we were comparing

The pathologist already said he doesn’t know the
kind of knife that was used. . . .
Clay is one thing.

Skin is another.

I don’t have

20

any testimony as to his medical background.

I have no

21

testimony that the clay is similar to skin. I don’t have

22

the knife being used on the clay. . . .

23

Again, I think he is an expert on cutlery.

24

In terms of providing information to this jury about

25

a knife that was used and how it would create a specific

26

kind of injury in a human body, without more, I am just

27

not going to allow it.

28

(Lodged Doc. 8, 12 Rep.’s Tr. at 2060-62.)
19

The next day, the

1

trial court denied defense counsel’s request that it reconsider

2

its ruling.

3

(Lodged Doc. 8, 13 Rep.’s Tr. at 2136-43.)

The defense later called as a witness Leonard Scott

4

Gribbons, a captain in the Los Angeles City Fire Department who

5

had spent 23 years working as a “firefighter, paramedic, [and]

6

emergency medical services battalion supervisor and captain.”

7

(Lodged Doc. 8, 14 Rep.’s Tr. at 2345-46.)

8

that he had responded to “[s]everal hundred” stabbing scenes, and

9

in up to 10 percent of them the stabbings had been fatal.

Gribbons testified

10

(Id. at 2347.)

After Gribbons testified that he did not always

11

find “significant pooling” of blood at a stabbing scene, defense

12

counsel presented a hypothetical:

13

Let’s assume that two individuals get into a fight in the

14

middle of the street.

No weapons are seen.

15

Fighter A knocks down Fighter B. Fighter B gets up,

16

staggers to the other side of the street. Fighter B then

17

falls to the ground again.

18

(Id. at 2349.)

19

“there’s very little blood in the middle of the street” and “a

20

pool of blood on the side where [Fighter B] walks over and then

21

falls down again,” “is it possible that the stabbing could have

22

occurred in the middle of the street where there’s very little

23

blood?”

24

counsel further questioned him:

25

Q.

28

(Id. at 2350.)

Gribbons replied, “Yes.”

(Id.)

Defense

Would it be unusual not to see a pool of blood in
the middle of the street under those circumstances?

26
27

Defense counsel asked whether, assuming that

A.

I would not find that to be unusual.

It really

. . . depends on the amount of clothing, how long
20

1

the person was down and the position they were in

2

when they were down.

3

unusual.

4

. . . .

5

Q.

But I wouldn’t find it

So . . . is it safe to say then that where a pool

6

of blood is when you respond to a stabbing scene is

7

not necessarily where the stabbing occurred?

8
9

A.

That’s correct.

(Id. at 2350-51.)

10

C.

Court of Appeal’s Decision

11

The court of appeal rejected this claim on direct review:

12

Having reviewed both Martin’s testimony and the

13

court’s ruling, we conclude the court did not abuse its

14

broad discretion by excluding Martin’s testimony because

15

the record shows he was not qualified to testify on the

16

subject

17

Evid.Code, § 720;10 People v. Kelly, supra, 17 Cal.3d at

18

p. 39.) As the court correctly found, the defense failed

19

to lay a foundation that Martin had special knowledge,

to

which

his

testimony

related.[FN3]

(See

20
21
22
23
24
25
26
27
28

10

California Evidence Code section 720 provides as follows:

(a) A person is qualified to testify as an expert if he
has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the
subject to which his testimony relates.
Against the
objection of a party, such special knowledge, skill,
experience, training, or education must be shown before
the witness may testify as an expert.
(b) A witness’ special knowledge, skill, experience,
training, or education may be shown by any otherwise
admissible evidence, including his own testimony.
21

1

skill, experience, training, or education sufficient to

2

qualify him as an expert on human stab wounds and,

3

specifically, on how particular knives “would create a

4

specific kind of injury in a human body.”

5

foundation, the court’s determination that Martin was

6

unqualified was, as the court stated, “not a close call.”

7

[FN3] In light of our conclusion that the court did

8

not

9

[Petitioner’s]

10
11

abuse

its

discretion,
claim

that

we
the

Absent such a

do

not

address

exclusion

of

Martin[’s] testimony was prejudicial.
(Lodged Doc. 14 at 9-10.)

12

D.

Analysis

13

The court of appeal was not objectively unreasonable in

14

rejecting Petitioner’s claim.

As discussed above, the Supreme

15

Court has not yet squarely addressed whether a state court’s

16

discretionary exclusion of expert testimony can ever violate a

17

defendant’s right to present a defense.

18

758-59; see also Aguilar, 585 F. App’x at 450-51.

19

court of appeal’s decision therefore could not have contravened

20

clearly established federal law under AEDPA, habeas relief is not

21

warranted.

22

(2008).

See Moses, 555 F.3d at
Because the

Id.; see Wright v. Van Patten, 552 U.S. 120, 125-26

23

In any event, the state court’s denial of this claim was not

24

objectively unreasonable because Martin clearly was not qualified

25

to testify as an expert on knife wounds on a human body.

26

Taylor, 484 U.S. at 410 (“The accused does not have an unfettered

27

right to offer testimony that is incompetent, privileged, or

28

otherwise inadmissible under standard rules of evidence.”).
22

See

1

Martin testified that he was a “weapons specialist” and “special

2

swordsman” who had sold cutlery for 17 years and collected knives

3

since he was a child.

4

knowledgeable about knives — the trial court acknowledged that he

5

was an “expert on cutlery” — nothing indicated that he had any

6

medical training or experience that would have qualified him to

7

testify regarding stab wounds in human flesh.

8

testimony regarding stab wounds simply extrapolated from the

9

shapes of holes made when he pushed knives into blocks of clay,

But although Martin apparently was

Indeed, Martin’s

10

and nothing, other than Martin’s conclusory testimony, showed

11

that a human body would display the same entry shapes when

12

stabbed with a knife.

13

1:13-CV-01251-JLT, 2015 WL 7017004, at *10 (E.D. Cal. Nov. 12,

14

2015) (finding that state court reasonably determined that

15

expert’s “experience in the a [sic] military services, as a

16

deputy sheriff who attended autopsies, and as the owner of an

17

‘academy’ teaching self-defense might qualify him as an expert in

18

law enforcement issues, but did not qualify him as an expert in

19

medical matters such as the amount of force necessary to break

20

ribs”).11

See Quintero v. Long, No.

By contrast, Dr. Fajardo, a medical doctor who had

21
22
23
24
25
26
27

11

Petitioner argues that the trial court “ignore[d]
multiple instances where the expert testified about markings in
clay and clearly testified that skin would act similarly” (Mem.
P. & A. at 15; Reply at 2), pointing to Martin’s testimony that
holes made by knives plunged into clay would have the “same
profile” as a “puncture wound” (Lodged Doc. 8, 12 Rep.’s Tr. at
2044, 2052). But nothing shows that the trial court ignored that
testimony — rather, it reasonably concluded that Martin’s
experience as a cutlery salesman and knife collector did not
qualify him to testify that clay and skin behave similarly when
stabbed with a knife. (Lodged Doc. 8, 12 Rep.’s Tr. at 2060-61.)

28
23

1

undergone years of training in forensic pathology, testified that

2

Hernandez’s stab wounds could have been inflicted by a single-

3

edged knife or a double-edged knife that was dull at the tip or

4

on one side and that it was impossible to conclusively determine

5

what kind of knife the killer had used.

6

Petitioner, moreover, was provided a full opportunity to

7

present a defense that he was not the stabber.

8

sharply with the defendant in Holmes, who was precluded entirely

9

from presenting his theory that a third party was the
See Holmes, 547 U.S. at 323-24.

This contrasts

10

perpetrator.

11

Captain Gribbons, who testified that Hernandez could have been

12

stabbed in the middle of the street, where he and Erik had been

13

fighting, rather than on the grass, where he had fought with

14

Petitioner and where the pool of blood was found.

15

counsel also fully questioned Dr. Fajardo during cross- and

16

recross-examination (Lodged Doc. 8, 11 Rep.’s Tr. at 1724-39,

17

1743-44), eliciting his testimony that Hernandez’s injuries were

18

“most consistent” with a single-edged knife (id. at 1732) and

19

that when a dull knife is used for a stabbing, it would often

20

result in tearing and collapsing of the skin, which was not

21

present in Hernandez’s wounds (id. at 1734-35).

22

elicited Dr. Fajardo’s admission that he had recently discussed

23

with the prosecution the “issue about one side [of the knife]

24

being blunt and one side being sharp.”

25

counsel fully cross-examined Erik about his inconsistent

26

statements to police and elicited his testimony that he didn’t

27

tell the police that Petitioner had had a knife until after they

28

implied that Erik or his brother could be charged with the
24

The defense called

Defense

She also

(Id. at 1738.)

Defense

1
2

murder.

(Lodged Doc. 8, 7 Rep.’s Tr. at 1096-100.)

Defense counsel also argued extensively during closing that

3

no direct evidence showed that Petitioner was the stabber.

(See,

4

e.g., Lodged Doc. 8, 15 Rep.’s Tr. at 2634, 2636-37.)

5

pointed to Dr. Fajardo’s testimony that “the wounds that

6

[Hernandez] sustained were blunt on one side and sharp on the

7

other, and that was most consistent with a single-edged knife.”

8

(Id. at 2676.)

9

did not see Petitioner with a knife during the fight (id. at

She

She also highlighted Erik’s statements that he

10

2667) and various inconsistencies in Erik’s statements to police

11

(id. at 2667-70, 2674-75).

She stated that

12

Erik’s testimony simply cannot be . . . believed.

He is

13

the only person linking [Petitioner] to George Hernandez.

14

. . . [W]hen he’s threatened and told he’s going to be

15

charged, of course, he’s now going to put it on someone

16

else.

17

(Id. at 2670; see also id. at 2689-91 (laying out theory in which

18

Erik most likely stabbed Hernandez, stating “[n]o one except for

19

Erik in that final police interview where he’s threatened that he

20

could be the suspect in this case, no one else puts [Petitioner]

21

with [Hernandez]”).)

22

people [were] present that night” and “anybody could have

23

[stabbed Hernandez].”

24

afforded a full opportunity to present his defense that someone

25

else was the stabber.

26

Defense counsel emphasized that “many

(Id. at 2681-82.)

As such, Petitioner was

Finally, even if the trial court erred in excluding Martin’s

27

testimony, it did not have a substantial and injurious effect on

28

the verdicts.

See Brecht v. Abrahamson, 507 U.S. 619, 638
25

1

(1993); cf. Cudjo v. Ayers, 698 F.3d 752, 768-70 (9th Cir. 2012)

2

(applying Brecht after finding Chambers error).

3

was seen with a knife before and during the fight, and a pool of

4

blood was found in the area where Petitioner and Hernandez had

5

fought and wrestled.

6

One witness who saw Petitioner with the knife, Reyes, was friends

7

with Hernandez and Luna and went with them to confront Erik, and

8

another, Vasquez, was Reyes’s girlfriend.

9

reason to deflect the blame from Erik.

Only Petitioner

(Lodged Doc. 8, 9 Rep.’s Tr. at 1395-99.)

As such, they had no

Petitioner fled after the

10

fight and was not located until he was arrested in Las Vegas.

11

(Lodged Doc. 8, 5 Rep.’s Tr. at 669, 767-68, 771, 6 Rep.’s Tr. at

12

891-93, 7 Rep.’s Tr. at 1037-39, 8 Rep.’s Tr. at 1317, 1321, 9

13

Rep.’s Tr. at 1404.)

14

found, and witnesses gave conflicting testimony regarding the

15

type of knife Petitioner had carried.

16

that Hernandez’s wound was caused by a single-bladed knife would

17

not necessarily have excluded Petitioner as the stabber.

18

Fajardo had already testified that the stab wounds were

19

“consistent with a single-edged weapon” or a dull double-edged

20

weapon.

21

Petitioner presented significant other evidence that Erik was the

22

stabber, including Gribbons’s testimony, and the jury apparently

23

rejected it.

24

Petitioner stabbed Hernandez with either a single- or double-

25

edged knife and that either type of knife could have been used in

26

the stabbing, any error in excluding Martin’s testimony could not

27

have significantly affected the jury’s verdict.

28

Moreover, the murder weapon was never

Thus, Martin’s opinion

(Lodged Doc. 8, 11 Rep.’s Tr. at at 1716-17.)

Dr.

And

Thus, given the substantial evidence that

Habeas relief is not warranted on this ground.
26

1

II.

Petitioner’s Sufficiency-of-the-Evidence Claim Does Not

2

Warrant Habeas Relief

3

Petitioner claims that insufficient evidence supported the

4

jury’s finding that Hernandez’s murder was willful, deliberate,

5

and premeditated.

(Pet. at 6; Mem. P. & A. at i, 26-38.)

6

A.

Applicable Law

7

The Due Process Clause of the 14th Amendment of the U.S.

8

Constitution protects a criminal defendant from conviction

9

“except upon proof beyond a reasonable doubt of every fact

10

necessary to constitute the crime with which he is charged.”

In

11

re Winship, 397 U.S. 358, 364 (1970).

12

alleges that the evidence introduced at trial was insufficient to

13

support the jury’s findings states a cognizable federal habeas

14

claim.

Thus, a state prisoner who

Herrera v. Collins, 506 U.S. 390, 401-02 (1993).

15

In considering a sufficiency-of-the-evidence claim, a court

16

must determine whether, “after viewing the evidence in the light

17

most favorable to the prosecution, any rational trier of fact

18

could have found the essential elements of the crime beyond a

19

reasonable doubt.”

20

(emphasis in original).

21

the sufficiency of evidence to support a conviction is identical

22

to the federal standard enunciated in Jackson.

23

Johnson, 26 Cal. 3d 557, 576 (1980).

24

state court’s resolution of a sufficiency-of-the-evidence claim

25

is evaluated under 28 U.S.C. § 2254(d)(1) rather than

26

§ 2254(d)(2).

27

2005) (as amended).

28

Jackson v. Virginia, 443 U.S. 307, 319 (1979)
California’s standard for determining

People v.

On federal habeas review, a

Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir.

Jackson “makes clear that it is the responsibility of the
27

1

jury — not the court — to decide what conclusions should be drawn

2

from evidence admitted at trial.”

3

2, 3-4 (2011) (per curiam).

4

second-guess the jury’s credibility assessments”; such

5

determinations are “generally beyond the scope of review.”

6

v. Ryan, 780 F.3d 940, 943 (9th Cir.) (citation omitted), cert.

7

denied, 136 S. Ct. 108 (2015).

8
9

Cavazos v. Smith, 132 S. Ct.

Thus, the reviewing court “cannot

Kyzar

The reviewing court “must look to state law for ‘the
substantive elements of the criminal offense,’” although the

10

“minimum amount of evidence that the Due Process Clause requires

11

to prove the offense is purely a matter of federal law.”

12

v. Johnson, 132 S. Ct. 2060, 2064 (2012) (per curiam) (quoting

13

Jackson, 443 U.S. at 324 n.16).

Coleman

14

Under California law, a “willful, deliberate, and

15

premeditated killing” constitutes first-degree murder.

16

Penal Code § 189.

17

15, 26-27 (1968), courts assessing the sufficiency of evidence to

18

sustain a finding of deliberation and premeditation look at

19

planning activity, motive, and the manner of killing if it

20

indicates a preconceived design to take the victim’s life.

21

People v. Edwards, 54 Cal. 3d 787, 813 (1991); see also Davis v.

22

Woodford, 384 F.3d 628, 640-41 (9th Cir. 2003) (as amended)

23

(assessing Anderson factors in determining whether jury finding

24

of premeditation and deliberation was supported by sufficient

25

evidence).

Cal.

As set forth in People v. Anderson, 70 Cal. 2d

26
27
28
28

1

B.

2

The court of appeal found that all three Anderson factors

3

Court of Appeal’s Decision

pointed to premeditation:

4

Viewing the evidence in the light most favorable to

5

the judgment, we conclude substantial evidence supports

6

the jury’s finding that [Petitioner] murdered Hernandez

7

with premeditation and deliberation. With respect to the

8

first Anderson factor, substantial evidence supports a

9

reasonable inference that [Petitioner] planned his murder

10

of

Hernandez

and,

in

so

doing,

killed

him

with

11

premeditation and deliberation.

12

Cristian and Erik, who had a BB gun, in front of the

13

Saucedas’ house during the initial confrontation with

14

Hernandez and his friends.

15

the house and, holding a knife, brought the Saucedas’ two

16

pitbulls to the front door. During a recorded interview,

17

Erik told detectives, “I ain’t gonna take this fucking

18

rap.

19

record shows no one else was seen in possession of a

20

knife at the scene of the murder that day. A defendant’s

21

act of arming himself with a knife is evidence of

22

planning activity for purposes of determining whether

23

substantial evidence supports the jury’s finding of

24

premeditation and deliberation. (People v. Perez, supra,

25

2 Cal.4th at p. 1126.)

[Petitioner] joined

[Petitioner] went back into

This fool [[Petitioner]] had a knife there.”

The

26

The trial record shows that after [Petitioner] armed

27

himself with the knife, he released the pitbulls, removed

28

the knife sheath or case as he exited the house, ran
29

1

across the street past Erik, and rushed Hernandez at full

2

stride.

3

wrestled on the ground where blood was later found.

He and Hernandez swung at each other and

4

The process of premeditation does not require any

5

extended period of time, and the true test is not the

6

duration of time as much as it is the extent of the

7

reflection.

8

1286.) Here, the foregoing substantial evidence supports

9

a reasonable inference that [Petitioner’s] killing of

10

Hernandez was the result of planning and “preexisting

11

reflection and weighing of considerations rather than

12

mere unconsidered or rash impulse.”

13

supra, 2 Cal.4th at p. 1125.) [Petitioner] armed himself

14

with the sheathed knife and two pitbulls only after the

15

initial

16

Saucedas’ house.

17

what he was doing.

18

stabbed

19

additional intentional act of removing the sheathing from

20

the murder weapon.

21

ample evidence of planning activity.

22

(People v. Harris (2008) 43 Cal.4th 1269,

confrontation

took

place

(People v. Perez,

in

front

of

the

He had sufficient time to reflect upon

Hernandez,

Before he attacked and fatally
[Petitioner]

had

to

perform

the

In sum, the prosecution presented

Regarding the second Anderson factor, substantial

23

evidence

supports

a

reasonable

24

[Petitioner] had a motive to kill Hernandez.

25

was a close friend of Reyes, who was an active member of

26

the TSK graffiti tagging crew.

27

were friends. Erik and his brother, Cristian, associated

28

with members of the rival OCP tagging crew. OCP graffiti
30

inference

that

Hernandez

[Petitioner] and Erik

1

was found on a tequila bottle at the Villalobos family’s

2

three-bedroom residence — where [Petitioner] had lived

3

and where he kept clothing and other personal items —

4

during the execution of a lawful search warrant.

5

father testified he did not know what OCP was, and he

6

would be surprised if there was graffiti in the house

7

with the initials “OCP.”

8

Luna when they confronted Erik in front of Erik’s home —

9

in the presence of [Petitioner] and Cristian — the night

10

of the murder and accused Erik of being involved in the

11

tagging of Martinez’s home.

12

testimony of gang expert Nelson Gomez in response to a

13

hypothetical question by the prosecutor, [Petitioner’s]

14

actions demonstrated a desire to align himself with the

15

OCP and gain its respect.

16

supports reasonable inferences that [Petitioner] had a

17

motive to kill Hernandez and he did kill Hernandez with

18

premeditation and deliberation.

His

Hernandez was with Reyes and

As shown by the opinion

In sum, substantial evidence

19

Regarding the third Anderson factor, [Petitioner’s]

20

manner of killing Hernandez also supported a reasonable

21

inference that [Petitioner] killed him with premeditation

22

and deliberation.

23

a vital part of the victim’s body is method evidence for

24

purposes of determining whether substantial evidence

25

supports

26

deliberation.

27

at p. 1287 [stabbing in the area of the victim’s heart

28

with sufficient force to pierce the heart]; People v.

the

The focused infliction of injuries to

jury’s

finding

of

premeditation

and

(See People v. Harris, supra, 43 Cal.4th

31

1

Thomas (1992) 2 Cal.4th 489, 518 [shooting victims in the

2

head].)

3

that the fatal stabbing wound penetrated four inches into

4

Hernandez’s

5

[Petitioner] inflicted Hernandez’s wounds in “a method

6

sufficiently ‘“particular and exacting”’ to warrant an

7

inference

8

preconceived design.”

9

quoting People v. Caro (1988) 46 Cal.3d 1035, 1050,

10

disapproved on another ground in People v. Bonillas

11

(1989) 48 Cal.3d 757, as stated in People v. Whitt (1990)

12

51 Cal.3d 620, 657, fn. 29.)

13

infer from [Petitioner’s] manner of killing Hernandez

14

that he premeditated and deliberated the murder.

15

Here, as shown by the pathologist’s testimony

body

that

and

[he]

severed

was

the

acting

renal

artery,

according

to

a

(People v. Thomas, at p. 518,

The jury could reasonably

Considering all three Anderson

factors and the

16

entire record, we conclude substantial evidence supports

17

the jury’s finding that [Petitioner] premeditated and

18

deliberated his murder of Hernandez.

19

[Petitioner] points to contrary evidence and contrary

20

inferences to support his claim there is insufficient

21

evidence

22

deliberation, he misapplies the substantial evidence

23

standard

24

[Petitioner] has not carried his burden to affirmatively

25

show on appeal that there is insufficient evidence to

26

support the judgment.

27

(Lodged Doc. 14 at 12-16.)

to

of

support

review

a

finding

discussed,

28
32

of

To the extent

premeditation

ante.

We

and

conclude

1

C.

Analysis

2

The court of appeal’s rejection of Petitioner’s sufficiency-

3

of-the-evidence claim was not objectively unreasonable.

4

court found, the record contains evidence of all three Anderson

5

factors.

6

As the

First, the evidence was sufficient for a rational trier of

7

fact to find that Petitioner had a motive to kill Hernandez.

8

Petitioner had connections to the OCP tagging crew: he was

9

friends with Erik (Lodged Doc. 8, 6 Rep.’s Tr. at 833-34), who

10

associated with OCP members, may have participated in a drive-by

11

shooting with them, and had a “beef” with at least one member of

12

TSK (Lodged Doc. 8, 3 Rep.’s Tr. at 385-87 (Luna’s testimony that

13

Erik associated with OCP members and that Erik and other “people

14

that were involved with OCP” drove by Luna’s friend’s house and

15

shot gun into air), 387-88 (Luna’s testimony that OCP tagged

16

Martinez’s house), 399 (Luna’s testimony that he believed Erik

17

was involved in shooting in front of friend’s house and tagging

18

of Martinez’s house), 6 Rep.’s Tr. at 939-41 (Erik’s testimony

19

that he was friends with OCP members and they would “take it to

20

my house and drink or something”), 8 Rep.’s Tr. at 1207-08

21

(Erik’s testimony that he had a “beef” with TSK member)).

22

brother, Cristian, was also friends with OCP associates (Lodged

23

Doc. 8, 6 Rep.’s Tr. at 832-33), and Luna told police that OCP

24

members “h[u]ng out” at the Saucedas’ home on Torn Ranch Street

25

(Lodged Doc. 9, 3 Clerk’s Tr. at 556-58).12

Erik’s

And a tequila bottle

26
27
12

28

Luna’s statement to the police was played for the jury.
(See Lodged Doc. 8, 3 Rep.’s Tr. at 468-72.)
33

1

with gang and “OCP” graffiti on it was found in a trash can at

2

Petitioner’s parents’ house (Lodged Doc. 8, 11 Rep.’s Tr. at

3

1757-61, 12 Rep.’s Tr. at 1903-04, 1937, 1939, 2013-14, 2026),

4

where Petitioner had previously lived and where he still visited

5

and stored some of his belongings (Lodged Doc. 8, 11 Rep.’s Tr.

6

at 1747-48).13
The evidence showed that Hernandez and his two companions,

7
8

Reyes and Luna, were aligned with OCP’s rival, TSK.

(Lodged Doc.

9

8, 6 Rep.’s Tr. at 833-34 (Cristian’s testimony that OCP and TSK

10

were rivals); Lodged Doc. 9, 3 Clerk’s Tr. at 602-03 (Reyes’s

11

testimony that OCP and TSK “don’t get along”).)

12

girlfriend, testified that Reyes was a member of TSK and was

13

actively involved in tagging (Lodged Doc. 8, 2 Rep.’s Tr. at

14

230), and Reyes testified at the preliminary hearing that he was

15

friends with TSK members (Lodged Doc. 9, 3 Clerk’s Tr. at 602-

16

03).

17

to Martinez’s house and used spray paint to cover up OCP

18

graffiti.

19

testimony), 3 Rep.’s Tr. at 396, 398-400 (Luna’s testimony);

20

Lodged Doc. 9, 3 Clerk’s Tr. at 556 (Luna’s statement to police

21

that Martinez’s house had been tagged with “TRS” and “OCP”), 609-

22

11 (Reyes’s testimony at preliminary hearing that he, Hernandez,

23

and Luna went to Martinez’s house to cover up “OCP” and “TRS”

Vasquez, Reyes’s

The night of the stabbing, Hernandez, Reyes, and Luna went

(Lodged Doc. 8, 2 Rep.’s Tr. at 231-35 (Vasquez’s

24
13

25
26
27
28

Erik, moreover, testified that Petitioner “went home
three times” on the day of the stabbing. (Lodged Doc. 8, 7
Rep.’s Tr. at 1064.) Erik likely referred to Petitioner’s
parents’ home, which was three or four blocks from Torn Ranch
Road in Lake Elsinore, where the Saucedas lived, because
Petitioner was at that time staying with friends in Corona and
did not have a car. (Lodged Doc. 8, 11 Rep.’s Tr. at 1746-47.)
34

1

graffiti).)

2

night, they went to Erik’s house and confronted him about the OCP

3

graffiti on Martinez’s house.

4

406, 424-25 (Luna’s testimony), 6 Rep.’s Tr. at 843-44, 879

5

(Cristian’s testimony), 959, 966-67 (Erik’s testimony); Lodged

6

Doc. 9, 3 Clerk’s Tr. at 618-19, 622 (Reyes’s testimony at

7

preliminary hearing).)

8
9

Immediately afterward, at around 11 or 11:30 that

(Lodged Doc. 8, 3 Rep.’s Tr. at

Erik testified that he was angry that Hernandez and his
friends were at his house late at night because it was

10

disrespectful to his family (Lodged Doc. 8, 6 Rep.’s Tr. at 958,

11

967), and that after he told them to leave, Hernandez hit him

12

twice and the two of them started fighting (Lodged Doc. 8, 6

13

Rep.’s Tr. at 966-67; see also Lodged Doc. 9, 3 Clerk’s Tr. at

14

622-23 (Reyes’s testimony at preliminary hearing that Erik and

15

Hernandez stepped away to talk but then started fighting)).

16

Detective Nelson Gomez, a gang expert, testified in response to a

17

hypothetical question that if a person was friends with OCP

18

associates and hanging out at their house when associates of a

19

rival crew arrived and a fight broke out, and the person then

20

joined the fight, he would be “doing that for purposes of

21

aligning [himself] with that particular tagging crew” and to

22

“earn more respect” from the crew.

23

at 1937-38, 1954-56.)

24

And

(Lodged Doc. 8, 12 Rep.’s Tr.

A reasonable juror could conclude from that evidence that

25

Petitioner was motivated to kill Hernandez because Hernandez

26

associated with members of TSK, OCP’s rival; Hernandez had

27

disrespected Petitioner’s friend, Erik, by going to his home late

28

at night and confronting him about the OCP graffiti; and
35

1

Petitioner wanted to align himself with OCP and gain respect from

2

its members.

3

(RAO), 2015 WL 9684912, at *8 (C.D. Cal. Oct. 9, 2015) (finding

4

that petitioner had “a motive to kill the person or persons who

5

were responsible for disrespecting [petitioner’s brother] because

6

it would gain him status and respect in his gang”), accepted by

7

2016 WL 107904 (C.D. Cal. Jan. 7, 2016); Hernandez v. Barnes, No.

8

CV 12-8893-JVS (KS), 2016 WL 721371, at *6 (C.D. Cal. Jan. 8,

9

2016) (evidence sufficient to show motive when petitioner was

See Torres v. Montgomery, No. EDCV 14-2510-AB

10

Dallas Cowboys fan and wearing team clothing when victim said he

11

was Raiders fan and “talk[ed] shit” to petitioner), accepted by

12

2016 WL 738270 (C.D. Cal. Feb. 23, 2016).

13

The record also contains evidence from which a rational

14

juror could infer that Petitioner planned to kill Hernandez, the

15

second Anderson factor.

16

during the initial confrontation on the porch.

17

Rep.’s Tr. at 247-48, 3 Rep.’s Tr. at 417-18, 445, 5 Rep.’s Tr.

18

at 629, 6 Rep.’s Tr. at 846-49, 877, 8 Rep.’s Tr. at 1359-60;

19

Lodged Doc. 9, 3 Clerk’s Tr. at 621-22.)

20

out, Petitioner returned to the house and emerged with the

21

Saucedas’ two pit bulls and a knife.

22

Tr. at 626-27, 655; Lodged Doc. 8, 5 Rep.’s Tr. at 644-46, 688,

23

757-58, 8 Rep.’s Tr. at 1311, 1370-71, 10 Rep.’s Tr. at 1527-28,

24

1552.)

25

Rep.’s Tr. at 646, 689, 757, 7 Rep.’s Tr. at 1002-03), unsheathed

26

the weapon (Lodged Doc. 9, 3 Clerk’s Tr. at 660-61), ran at

27

Hernandez as he walked away from the fighting and toward a

28

neighbor’s house, and fought and wrestled with him in the area

Petitioner was with Erik and Cristian
(Lodged Doc. 8, 2

After fighting broke

(Lodged Doc. 9, 3 Clerk’s

Petitioner released the pit bulls (Lodged Doc. 8, 5

36

1

where a pool of blood was later found (Lodged Doc. 8, 2 Rep.’s

2

Tr. at 263-64 (Vasquez’s testimony that Hernandez got up and

3

walked in front of her car and toward grass or driveway area in

4

front of neighbor’s house across street), 5 Rep.’s Tr. at 758

5

(Manuel’s testimony that Petitioner ran from house to join

6

fight), 6 Rep.’s Tr. at 976-82 (Erik’s testimony that while

7

Hernandez was dazed and walking away from fight and toward

8

neighbor’s house across street, Petitioner ran past Erik and

9

began wrestling with and hitting Hernandez), 7 Rep.’s Tr. at 997-

10

98, 1012, 1016-17 (Erik’s testimony that Petitioner ran from

11

direction of Saucedas’ house and past Erik to square off with

12

Hernandez while he was walking away), 10 Rep.’s Tr. at 1527-28

13

(Gomez’s testimony that Petitioner ran from Saucedas’ house to

14

middle of street), 9 Rep.’s Tr. at 1395-99 (Deputy Dwayne Kenneth

15

Parrish’s testimony that he found “a big pool of blood” in

16

gutter)).

17

Based on the evidence that Petitioner went in the house and

18

returned to the fight with the pit bulls, armed himself with a

19

knife, released the pit bulls, unsheathed the knife, and ran with

20

the knife toward Hernandez as he walked toward the car, a

21

rational fact-finder could conclude that Petitioner planned to

22

kill Hernandez.

23

2000) (rejecting petitioner’s claim of insufficient evidence of

24

premeditation of murder in part because of planned procurement of

25

weapon); Hernandez, 2016 WL 721371, at *6 (evidence sufficient to

26

show planning when petitioner “left the safety of his car,”

27

returned to bar to fight victim, and “had a six-inch knife in his

28

back pocket, indicating he had considered the possibility of a

See Jones v. Wood, 207 F.3d 557, 564 (9th Cir.

37

1

violent encounter that night” (citation omitted)); Mascarenas v.

2

Long, No. EDCV 13-1109-BRO JEM, 2013 WL 6255253, at *11 (C.D.

3

Cal. Dec. 3, 2013) (finding that “the jury could reasonably infer

4

prior planning because petitioner was armed with a knife when the

5

incident occurred” and collecting cases).

6

Finally, the manner in which Petitioner killed Hernandez

7

supports an inference of premeditation.

As Hernandez walked away

8

from the fight, Petitioner ran at him with the unsheathed knife

9

and stabbed him twice in a “vital part” of his body — the kidney

10

area of his mid to lower back — using enough force each time to

11

penetrate four inches deep.

12

1712-14, 1719.)

13

the aorta, causing Hernandez to bleed to death.

14

22.)

15

stabbing Hernandez that he had a deliberate intent to kill.

16

Torres, 2015 WL 9684912, at *8 (finding that “the manner of the

17

stabbings — more than once in a vital area of each victim’s body,

18

the abdomen — was a method tending to establish a preconceived

19

design to kill”); Hernandez, 2016 WL 721371, at *6 (manner of

20

killing supported finding of premeditation and deliberation when

21

petitioner continued fight after victim was pinned and trying to

22

escape and petitioner stabbed and cut victim multiple times);

23

Mascarenas, 2013 WL 6255253, at *11 (“the fact that Petitioner

24

stabbed the victim in the neck — a vital part of the body —

25

demonstrates a deliberate intent to kill”); see also Pasillas v.

26

Miller, No. CV 13-4567, 2015 WL 1085019, at *4 (C.D. Cal. Mar.

27

10, 2015) (jury’s finding of premeditation and deliberation

28

supported by sufficient evidence when petitioner possessed knife

(Lodged Doc. 8, 11 Rep.’s Tr. at

One of those stabs severed the renal artery at
(Id. at 1719-

A reasonable jury could infer from Petitioner’s manner of

38

See

1

at nightclub, was responding to victim’s offensive photo-taking

2

of petitioner’s dance partner, crossed the dance floor, and

3

carried out “calculated approach and attack” on victim by

4

slashing his neck).

5

Petitioner argues that “no evidence” showed that he knew

6

Hernandez and his companions were coming to the Saucedas’ house

7

or that he “had any plan to fight or stab Hernandez before

8

Hernandez drove to the house” (Mem. P. & A. at 29); rather, the

9

stabbing was simply a “rash impulse during a violent fistfight”

10

(id. at 31; see also Reply at 13-14 (arguing that he did not arm

11

himself and seek out Hernandez and that Hernandez and his friends

12

started the fight)).

13

occur in a brief interval” after a triggering event, such as the

14

initial confrontation with Hernandez, Reyes, and Luna;

15

“[t]houghts may follow each other with great rapidity and cold,

16

calculated judgment may be arrived at quickly.”

17

Mendoza, 52 Cal. 4th 1056, 1069 (2011) (citation omitted).

18

any event, Petitioner’s arguments amount to a request that the

19

Court reweigh the evidence and credibility of the witnesses.

20

that the Court cannot do.

21

of evidence precluded by Jackson); Bruce v. Terhune, 376 F.3d

22

950, 957 (9th Cir. 2004) (per curiam) (on federal habeas review,

23

jury’s credibility determinations entitled to “near-total

24

deference,” and court must presume jury resolved conflicts in

25

favor of prosecution).

26

But “[p]remeditation and deliberation can

People v.
In

But

Smith, 132 S. Ct. at 7 n.* (reweighing

“Jackson claims face a high bar in federal habeas

27

proceedings because they are subject to two layers of judicial

28

deference.”

Johnson, 132 S. Ct. at 2062.
39

Petitioner has not

1

surmounted this “twice-deferential standard.”

2

Matthews, 132 S. Ct. 2148, 2152 (2012) (per curiam).

3

of appeal reasonably found that the evidence was sufficient to

4

support the jury’s finding that Petitioner premeditated the

5

murder of Hernandez.

6

habeas relief on this ground.

7

III. Petitioner’s Request for an Evidentiary Hearing Is Denied

9

39.)

The court

Accordingly, Petitioner is not entitled to

Petitioner seeks an evidentiary hearing.

8

Parker v.

(Mem. P. & A. at

But an evidentiary hearing is not required on issues that

10

can be resolved by reference to the state-court record under

11

§ 2254(d), as all of Petitioner’s claims can be.

12

Pinholster, 563 U.S. 170, 183 (2011) (“[W]hen the state-court

13

record ‘precludes habeas relief’ under the limitations of

14

§ 2254(d), a district court is ‘not required to hold an

15

evidentiary hearing.’” (quoting Schriro v. Landrigan, 550 U.S.

16

465, 474 (2007))).

17

is denied.

Cullen v.

Thus, his request for an evidentiary hearing

18

CONCLUSION

19

IT THEREFORE IS ORDERED that the Petition is DENIED,

20

Petitioner’s request for an evidentiary hearing is DENIED, and

21

judgment be entered dismissing this action with prejudice.

22
23
24
25

DATED: April 29, 2016
JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE

26
27
28
40