Sanchez v. Brown, et al

Filing 163

MEMORADUM AND ORDER (1) Denying Petition For Writ Of Habeas Corpus, And (2) Issuing Certificate Of Appealability For Claims 8, 59, 61 (ECF No. 38 ), ORDER Denying Motion For Evidentiary Hearing (ECF N. 120 ), ORDER Denying Motion And Renewed Motion T o Preserve Testimony (ECF No. 150 & 160 ), ORDER Denying Motion For Case Management Conference (ECF No. 159 ), ORDER Granting Request To Seal And Protect Supplemental Lodged Documents (ECF No. 162 ), Clerk To File Documents Under Seal, Clerk To Substitute Ron Davis As Respondent And Enter Judgment, signed by District Judge Anthony W. Ishii on 7/22/2015. CASE CLOSED.(Fahrney, E)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8
EASTERN DISTRICT OF CALIFORNIA

9
10

TEDDY BRIAN SANCHEZ,

11
12
13
14
15

Case No. 1:97-CV-06134-AWI-SAB

Petitioner,

DEATH PENALTY CASE

v.

MEMORANDUM AND ORDER (1)
DENYING PETITION FOR WRIT OF
HABEAS CORPUS, and (2) ISSUING
CERTIFICATE OF APPEALABILITY FOR
CLAIMS 8, 59 AND 61
(ECF No. 38 )

KEVIN CHAPPELL, Warden of San Quentin
State Prison,
Respondent.

ORDER DENYING MOTION FOR
EVIDENTIARY HEARING
(ECF No. 120)

16
17

ORDER DENYING MOTION AND
REWEWED MOTION TO PRESERVE
TESTIMONY
(ECF No. 150 & 160)

18
19
20

ORDER DENYING MOTION FOR CASE
MANAGEMENT CONFERENCE
(ECF No. 159)

21
22

ORDER GRANTING REQUEST TO SEAL
AND PROTECT SUPPLEMENTAL LODGED
DOCUMENTS
(ECF No. 162)

23
24

CLERK TO FILE DOCUMENTS UNDER
SEAL

25
26

CLERK TO SUBSTITUTE RON DAVIS AS
RESPONDENT AND ENTER JUDGMENT

27
28
1

1

Petitioner is a state prisoner, sentenced to death, proceeding with a petition for writ of

2 habeas corpus pursuant to 28 U.S.C. § 2254. He is represented in this action by Nina Rivkind,
3 Esq., California Bar Number 79173, and David Harshaw III, Esq. of the Office of the Federal
4 Defender.
Respondent Kevin Chappell1 is named as Warden of San Quentin State Prison. He is

5

6 represented in this action by Jamie Scheidegger, Esq., and Rachelle Newcomb, Esq., of the
7 Office of the California Attorney General.
8

Before the court for a decision on the merits is the petition (ECF No. 38). Also before the

9 Court are Petitioner’s motions for evidentiary hearing (ECF No. 120) and to preserve testimony
10 (ECF No. 150).
11

I.

12

BACKGROUND

13

Petitioner is currently in the custody of the California Department of Corrections and

14 Rehabilitation pursuant to a judgment of the Superior Court of California, County of Kern,
15 following his conviction by court trial on August 3, 1988 of the first degree murders of Juan
16 Bocanegra (“Mr. Bocanegra”) and Juanita Bocanegra (“Mrs. Bocanegra”) (Cal. Pen. Code §
17 187), and of the separate (non-capital) first degree murder of Woodrow Tatman (“Mr. Tatman”)
18 (Cal. Pen. Code § 187). The multiple-murder special-circumstance allegation (Cal. Pen. Code §
19 190.2, subd. (a)(3)) as to the murders of Mr. Bocanegra and Mrs. Bocanegra was found true.
20 The trial court also found Petitioner used a deadly and dangerous weapon in the murders of the
21 Mr. Bocanegra and Mrs. Bocanegra (Cal. Pen. Code § 12022, subd. (b)), and that Petitioner was
22 guilty of the robbery of Mr. Tatman. (Cal. Pen. Code § 211.)
23

On September 21, 1988, a penalty phase jury was empaneled. During the penalty phase,

24 the prosecution introduced evidence (see Cal. Pen. Code § 190.3) that in 1982 Petitioner was
25 involved in the use of, or attempted use of, force or violence against a store owner, Mr.
26 Ammarie, and against a friend, Mr. Pena.

Defendant in turn offered evidence of his

27
1

Pursuant to Fed. R. Civ. Proc. 25(d), Ron Davis, Acting Warden of San Quentin State Prison, is substituted as

28 Respondent in place of his predecessor wardens.

2

1 dysfunctional and impoverished upbringing and use of drugs and alcohol and mental issues and
2 conditions.
3

On October 6, 1988, the jury returned a verdict of death. On October 31, 1988, the trial

4 court denied Petitioner’s motion to modify the verdict (Cal. Pen. Code § 190.4) and sentenced
5 Petitioner to death for aiding and abetting the stabbing deaths of Mr. & Mrs. Bocanegra; to 25
6 years to life for the Tatman murder; to 5 years for the Tatman robbery; and to 2 years for the
7 weapon enhancement.
8

On December 14, 1995, the California Supreme Court affirmed the judgment and

9 sentence on direct appeal. People v. Sanchez, 12 Cal.4th 1 (1995). The California Supreme
10 Court denied petition for rehearing but modified its opinion on February 21, 1996. People v.
11 Sanchez, 12 Cal.4th 825b (1996). Petitioner’s petition for writ of certiorari was denied by the
12 United States Supreme Court on October 7, 1996. Sanchez v. California, 519 U.S. 835 (1996).
13

Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. The

14 state petition was summarily denied on October 22, 1997. In re Sanchez, S049502.
15

On September 17, 1998, Petitioner filed his federal petition for writ of habeas corpus

16 arguing insufficient evidence, actual innocence, prosecutorial misconduct and ineffective
17 assistance of counsel based on allegations he did not assist Joey Bocanegra (“Joey”) in killing
18 Mr. Bocanegra, Joey’s father, and that his assistance in the murder of Mrs. Bocanegra, Joey’s
19 mother, does not make him eligible for the death penalty.
20

Respondent filed an answer on October 19, 1998 and an amended answer on February 8,

21 1999, admitting jurisdictional and procedural allegations (except paragraphs, 1, 16, 18-20),
22 asserting procedural defenses, and denying all claims 1 through 61.
23

On December 9, 1998, the Court found all claims to be fully exhausted.

24

On April 5, 1999, Petitioner filed a memorandum of points and authorities in support of

25 the petition. On July 1, 1999, Respondent filed a memorandum of points and authorities in
26 support of his answer.

On August 16, 1999, Petitioner filed a reply to Respondent’s

27 memorandum.
28
3

1

Petitioner was granted discovery of law enforcement records relating to: the Bocanegra

2 crime scene, Petitioner’s jail records, jailhouse informants Charles Seeley (“Seeley”) and Rufus
3 Hernandez (“Hernandez”), and coroner Dr. Holloway’s autopsy notes.

Petitioner was also

4 authorized to take the deposition of Kern County District Attorney Investigator Dwight
5 Pendleton regarding Seeley, and the deposition of Bakersfield Police Detective Stratton
6 regarding Hernandez’s heroin use.
Petitioner’s request to expand the record was granted (ECF No. 134) for Exhibits 144-

7

8 151 (declarations), Exhibits 421-434 (law enforcement records), Exhibits 527-528 (depositions),
9 Exhibits 529-532 (Kern County court records), Exhibits 604-608 (Kern County jail records), and
10 Exhibits 818-819 (other documents regarding Charles Seeley). Expansion of the record was
11 denied for Exhibits 524-526 (court orders), but with judicial notice to be taken of proceedings in
12 the Northern District of California in Ashmus v. Woodford, Case No. C93-0594 THE regarding
13 the constitutionality of California’s death penalty statute.
14

Petitioner filed a motion for evidentiary hearing on March 18, 2003 (ECF No. 120),

15 seeking a hearing on forty-one of the sixty-one claims in his petition, twenty-six guilt and special
16 circumstance phase claims and fifteen penalty phase claims.2
17

On March 3, 2004, Petitioner filed a second motion to expand the record to rebut

18 Respondent’s arguments in opposition to the motion for evidentiary hearing. The motion to
19 expand the record was granted on September 27, 2005 (ECF No. 145) as to the supplemental
20 declaration of defense psychologist, Dr. Froming, and as to records of Mr. Huffman, who was
21 Petitioner’s lawyer on unrelated burglary charges.
22

On June 25, 2014, Petitioner filed a motion to preserve testimony (ECF No. 150), seeking

23 to depose seven witnesses, each of whom filed a declaration in support of instant petition.
24 Petitioner filed a renewed motion to preserve testimony on May 1, 2015.
25

On May 1, 2015, Petitioner filed a motion requesting a case management conference

26
27
28

2

The claims for which Petitioner seeks evidentiary hearing are: 2, 4, 6 - 18, 20 - 22, 24, 25, 28, 30 - 34, 36 - 38, 40,
43 - 48, 50 - 52, 54 and 60.

4

1 (ECF No. 159) to discuss the above motion for evidentiary hearing.
2

On June 23, 2015, Respondent filed a supplemental notice of lodging newly obtained

3 state court documents, California Penal Code § 987.9 records # EE through # QQ, (ECF No.
4 161), and filed notice of his request to seal lodged documents # II and # QQ, (ECF No. 162).
5

II.

6

STATEMENT OF FACTS

7

This factual summary is taken from the California Supreme Court’s summary of the facts

8 in its December 14, 1995 opinion. Pursuant to 28 U.S.C. §§ 2254(d)(2), (e)(1), the state court’s
9 summary of facts is presumed correct. Petitioner does not present clear and convincing evidence
10 to the contrary; thus, the Court adopts the factual recitations set forth by the state appellate court.
11 See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009) (“We rely on the state
12 appellate court’s decision for our summary of the facts of the crime.”).
13

A.

Guilt Phase Facts

14

1.

The Bocanegra Murders

15

On the afternoon of February 3, 1987, the police found the bodies of Juan and
Juanita Bocanegra in their home. Juanita was found in her sewing room, and Juan
was found in the kitchen. Both had sustained extensive stab wounds and head
injuries. A piece of fabric was tied loosely around Juanita's neck, and another
piece of cloth was found on her right wrist.

16
17
18
19
20
21
22
23
24
25
26
27
28

Kern County Sheriff's criminalist Gregory Laskowski analyzed the blood found at
the scene and concluded that both victims were killed where their bodies were
found. The blood splatter evidence showed that the attack began in the hallway
near the bathroom. The fight then moved to the kitchen where large amounts of
blood indicated that a struggle took place throughout the room. The evidence
indicated a fierce struggle occurred throughout the house. Small amounts of
diluted blood in the bathroom suggested that someone cleaned up after the attack.
Laskowski also found evidence of two types of shoe tracks on the floor of the
Bocanegra kitchen; one print had a “chevron pattern” and another, partial print,
contained a “wavy sole design.” A full wavy design shoe track in the bathroom
was consistent with the print found in the kitchen. Both victims were found
without shoes; Juanita's bloodstained slippers were found in the hallway.
Police found a knife block with four empty spaces in the kitchen. Two knives,
without bloodstains, were in the kitchen sink. There were slash marks on the
cabinets directly above the knife holder. That same evening, the police recovered
a knife and sharpening stone that appeared to have blood on them. No fingerprints
were found on these items. But police did find a bloody palm print belonging to
defendant's accomplice Robert Reyes on the doorknob inside the Bocanegra front
5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

door. Autopsies performed on both Juan and Juanita revealed that they died as a
result of massive hemorrhaging due to multiple stab wounds, although the type of
instrument that inflicted the wounds could not be conclusively determined.
On February 4, 1987, the Bocanegras' Dodge Colt station wagon was found
abandoned. There were extensive bloodstains on both the interior and exterior of
the car. Fingerprints belonging to Joey Bocanegra were found on the interior
driver's and right rear door windows and on the right rear door handle.
Two items of evidence linked defendant to the crimes. The missing Bocanegra
television set was found in the same room at the Bakersfield Inn where defendant
stayed at the time of the murders, and defendant sold the Bocanegras' vacuum
cleaner to Maria Rodriguez, a clerk employed by the inn. The remaining evidence
used to convict defendant was based primarily on the circumstances of the crime,
and incriminating statements made by defendant to police investigator Bob
Stratton, jailhouse informant Rufus Hernandez, and newspaper reporter Michael
Trihey.
2. The Tatman Murder
Woodrow Wilson Tatman was a frail, undernourished, 72-year-old man who often
drank alcohol and was confined to a wheelchair. He rented a room at the
Bakersfield Inn, and spent his days drinking alcohol and watching television.
Rose McGrew was employed by the inn as a maid and she also lived on the
premises. She helped care for Tatman and had last been in his room on February
1, 1987. Maria Charboneau also worked and lived at the inn, and she took care of
Tatman's Social Security checks, and managed his finances. In the first week of
February, Tatman received two Social Security checks. On February 2,
Charboneau gave Tatman between $80 and $100. That was the last time she saw
him alive.
On the afternoon of February 4, 1987, McGrew noticed that Tatman's drapes were
still drawn and that he had not yet picked up his mail, which included his Social
Security check. McGrew entered the room and found Tatman's body, lying on the
floor near his bed. He was covered with a bedspread. Tatman's television, radio
and electric skillet were missing from the room.
The autopsy report indicated that Tatman was killed by “massive blunt force
injury to the left chest” which collapsed his left lung and caused substantial
hemorrhaging. The blow to the chest was consistent with a heel stomp or with the
application of an instrument approximately two inches by three inches in size.
Tatman also sustained several superficial stab wounds to the chest and lower
abdomen, as well as a head injury. It appeared that the superficial injuries had
been inflicted intra or post mortem, and none contributed to death. It could not be
determined what instrument caused the lower abdominal injuries, although it
appeared that the chest wounds were inflicted by a screwdriver. Dr. John
Holloway, the forensic pathologist who performed the autopsy, could not
determine whether the wounds were caused by one or more individuals.
a. Statements Made to Jailhouse Informant Hernandez
Rufus Hernandez was incarcerated with defendant for two months during 1987.
He had been charged with receiving stolen property and second degree burglary.
Defendant spoke to Hernandez about the Bocanegra murders and Hernandez
entered into a plea bargain whereby he received six months in county jail and
6

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

three years' probation in exchange for his testimony.
Hernandez testified that defendant told him he went with Joey Bocanegra to the
Bocanegra house. Hernandez's testimony was inconsistent as to whether
defendant said they went with the plan of robbing the Bocanegras or only with the
plan of borrowing money from Juan Bocanegra. Defendant waited outside for
Joey, but entered the house when he heard Joey and Juan arguing in the hallway.
Defendant claimed he tried unsuccessfully to stop the fight by hitting Juan with a
curved metal bar. He thereafter threw the bar in the front yard. Defendant did not
say whether Joey had stabbed Juan before or after defendant hit him.
Juanita, who heard the commotion from another room, came out of the bedroom
yelling. Defendant slipped in a puddle of blood as he jumped over Juan to reach
Juanita. He thereafter grabbed Juanita and told Joey that he should “shut up” his
mother. Joey then stabbed his mother repeatedly and pushed her into the sewing
room, where she was found. Defendant did not tell Hernandez that he did
anything other than hold Juanita; instead defendant claimed that he saw Joey stab
both victims with a kitchen knife. Defendant ended his story with the comment
that after the murders he threw the bar into the front yard, and that the knife was
thrown into a canal. Defendant noted that Joey took the television, a toolbox, and
his parents' hatchback automobile. Hernandez thereafter reported defendant's
statements to police investigator Stratton.
b. Statements Made to Police Investigator Stratton
On February 19, 1987, Stratton met with defendant in the Kern County jail.
Defendant had contacted the police through his attorney because he wished to
offer statements about the Bocanegra crimes. Before commencing the interview,
defendant waived his right to counsel after receiving the admonitions required by
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S. Ct. 1602, 10
A.L.R.3d 974]. Thereafter, he told Stratton that about 10 a.m., on the day of the
Bocanegra murders, he met Joey Bocanegra on the street and spoke to him for a
few minutes before Joey walked home. Defendant then walked by the Bocanegra
house and observed Joey leaving the home. At that point, the interview with
Stratton ended.
One week later, Stratton again spoke to defendant. At this point, defendant asked
Stratton a series of hypothetical questions, including: “What if I was present in the
house; what if Joey hit his dad after his dad had refused to give him some money;
and what if Joey's dad hit him back and what if Joey got real mad and grabbed a
knife and started stabbing his dad; what if Joey's mother didn't know what was
happening because she was in another room?”
c. Statements Made to Homicide Detective Boggs
On March 27, 1987, after waiving his Miranda rights, defendant was interviewed
about the Tatman murder by Homicide Detective Boggs. Defendant had already
been arrested for the Bocanegra murders and agreed to talk to the officer because
he believed he could be spending the rest of his life in prison.
Boggs testified that defendant told him he wanted to rob Tatman of his
refrigerator because he needed one. Defendant told Boggs that, because he was so
intoxicated (from ingesting alcohol and drugs) at the time of the robbery, he could
not remember the sequence of events.
According to Boggs, defendant asked Reyes to pry open Tatman's bathroom
window with Reyes's screwdriver. Once inside, Reyes removed the contents of
7

1
2
3
4
5
6
7

Tatman's refrigerator, and defendant moved it to a room next door that had been
rented by Vicky Ornalez, a friend of the perpetrators.
Defendant told Boggs that when he returned to Tatman's room, Tatman was
awake and Reyes was standing over him with a screwdriver in his hand.
Defendant claimed he had no idea why Reyes was acting this way because both
men had discussed trying not to awaken Tatman while they removed his property.
Reyes then hit Tatman in the chest, pulled Tatman off the bed and onto the floor,
and made multiple lunging movements downward with the screwdriver in his
hand. Defendant asserted that the bed partially blocked his view, but he
nonetheless believed Reyes was stabbing Tatman. After Reyes completed the
murder, both defendant and Reyes returned to Vickie Ornalez's room.

10

d. Defendant's Post-Arrest Comments to Michael Trihey
Michael Trihey was a reporter for the Bakersfield Californian. Prior to trial, he
interviewed defendant five times about the charges pending against him. On April
25, 1988, the paper published a Trihey article entitled, Accused Asks for Own
Death, System Says No. According to Trihey, defendant told him that he was a
“triple murderer” and that the Bocanegras and Tatman were killed for their Social
Security checks.

11

B. Penalty Phase Evidence

12

The prosecution introduced evidence of defendant's criminal activity involving
the use or attempted use of force or violence. (§ 190.3, factor (b).) On May 7,
1982, defendant assaulted store owner Hassan Ahmad Ammarie after defendant
asked Ammarie to “get him some bacon” and Ammarie refused. Defendant
stabbed Ammarie in the left shoulder and neck. Ammarie was hospitalized for
two weeks following the attack.

8
9

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

On June 2, 1982, defendant attacked an acquaintance, Arthur Melendez Pena,
after Pena refused to comply with defendant's demand for money.
Several witnesses who had testified at the preliminary hearing also testified at the
penalty phase. Homicide Detective Boggs testified defendant had told him that
after removing Tatman's possessions to Ornalez's room, he and Reyes “kicked
back, drank some whiskey, smoked some dope, ate some food and just relaxed for
the rest of the evening.” Informant Rufus Hernandez and Police Detective Stratton
also testified that defendant told Hernandez that he took an active role in the
Bocanegra and Tatman slayings-including beating Juan and Juanita Bocanegra,
and beating and assisting Reyes in stabbing Tatman. Stratton repeated
Hernandez's statements to him that defendant and Joey Bocanegra went to Juan
and Juanita's house and planned to rob them and that Tatman was robbed for his
Social Security check. Rose McGrew, the Bakersfield Inn maid, repeated her guilt
phase testimony about how she discovered Tatman's body.
With regard to the Bocanegra murders, Hernandez testified that defendant entered
the house with a bar and “ran up to Joey's father and grabbed him and held him
there until Joey went and got the knife and they just beat him and stabbed him.”
When Juanita walked out of her sewing room, defendant “rushed” her: “That's
when they both started killing her.... They just stabbed her numerous times and hit
her in the head a few times with the bar, and the time, at the same time of doing
that I guess Joey somehow managed to get her back inside the room, I guess,
while he was hitting her....” The prosecution also introduced six color
photographs of the victims and forty-eight other color photographs of the
8

1
2
3
4
5
6
7
8
9
10
11
12
13

Bocanegra and Tatman crime scenes. Criminalist Greg Laskowski testified that
the blood splatter in the hallway of the Bocanegra house was consistent with the
prosecution's theory that multiple stabbings occurred there.
Defendant's penalty phase evidence consisted of testimony by friends, relatives,
and a social anthropologist to the effect that defendant's dysfunctional and
poverty-stricken, migratory family life severely hampered his ability to live a
productive life. Defendant was rejected by his mother following his birth and was
sent to live with his grandparents. When he was three years old, defendant's
mother and stepfather unexpectedly wrenched defendant from his grandparents'
home to move to Arkansas. Shortly thereafter, defendant's mother left defendant's
stepfather, and took defendant and his half-brother to California. Defendant's
mother remarried a man with three children, and the couple thereafter had five
additional children.
Defendant's mother and his stepfather were alcoholics and drug abusers who were
violent with each other and the children. His grandparents, who were often in
charge of defendant, also drank heavily and abused drugs. Both defendant's
mother and stepfather died in their middle 30's of acute alcoholism. Defendant
tried to take care of his siblings, but took drugs to escape his difficult life. He
eventually turned to crime because he had no marketable job skills to prepare him
for life as an adult.
Penalty phase defense counsel Gary Frank attempted to persuade the jury that
defendant should receive a sentence of life without the possibility of parole and
“spend the remainder of his life in prison.”

14 Sanchez, 12 Cal.4th 1, 17-23 (1995).
15

III.

16

JURISDICTION

17

Relief by way of a petition for writ of habeas corpus extends to a person in custody

18 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
19 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v.
20 Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as
21 guaranteed by the U.S. Constitution. The challenged conviction arises out of Kern County
22 Superior Court, which is located within the jurisdiction of this Court. 28 U.S.C. § 2254(a); 28
23 U.S.C. § 2241(d).
24

This action was initiated on November 20, 1997. Because this action was initiated after

25 April 24, 1996, the amendments to 28 U.S.C. § 2254 enacted as part of the Antiterrorism and
26 Effective Death Penalty Act (AEDPA) apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997);
27 Van Tran v. Lindsey, 212 F.3d 1143, 1148 (9th Cir. 2000), overruled on other grounds by
28
9

1 Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
2

IV.

3

STANDARDS OF REVIEW

4

A.

5

Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is

Legal Standard - Habeas Corpus

6 barred unless a petitioner can show that the state court’s adjudication of his claim:
7
8
9
10

(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.

11 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 98 (2011); Lockyer, 538 U.S. at 70-71;
12 Williams, 529 U.S. at 413.
13

As a threshold matter, this Court must “first decide what constitutes ‘clearly established

14 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at
15 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,”
16 this Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions
17 as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words,
18 ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles
19 set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition,
20 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’; otherwise, there is
21 no clearly established Federal law for purposes of review under AEDPA.” Moses v. Payne, 555
22 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); see also
23 Panetti v. Quarterman, 551 U.S. 930, 949 (2007); Carey v. Musladin, 549 U.S. 70, 74 (2006). If
24 no clearly established Federal law exists, the inquiry is at an end and the Court must defer to the
25 state court’s decision. Carey, 549 U.S. 70; Wright, 552 U.S. at 126; Moses, 555 F.3d at 760. In
26 addition, the Supreme Court has recently clarified that habeas relief is unavailable in instances
27 where a state court arguably refuses to extend a governing legal principle to a context in which
28
10

1 the principle should have controlled. White v. Woodall, --- U.S. ---, 134 S. Ct. 1697, 1706
2 (2014). The Supreme Court stated: “‘[I]f a habeas court must extend a rationale before it can
3 apply to the facts at hand,’ then by definition the rationale was not ‘clearly established at the time
4 of the state-court decision.’” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).
5

If the Court determines there is governing clearly established Federal law, the Court must

6 then consider whether the state court's decision was “contrary to, or involved an unreasonable
7 application of,” [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28
8 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ
9 if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
10 question of law or if the state court decides a case differently than [the] Court has on a set of
11 materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at
12 72. “The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite
13 in character or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster's
14 Third New International Dictionary 495 (1976)). “A state-court decision will certainly be
15 contrary to [Supreme Court] clearly established precedent if the state court applies a rule that
16 contradicts the governing law set forth in [Supreme Court] cases.” Id.
17

“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if

18 the state court identifies the correct governing legal principle from [the] Court’s decisions but
19 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at
20 413. “[A] federal court may not issue the writ simply because the court concludes in its
21 independent judgment that the relevant state court decision applied clearly established federal
22 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411;
23 see also Lockyer, 538 U.S. at 75-76. “A state court's determination that a claim lacks merit
24 precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of
25 the state court's decision.” Richter, 562 U.S. at 101, citing Yarborough, 541 U.S. at 664. The
26 Supreme Court stated:
27
28

As a condition for obtaining habeas corpus from a federal court, a state prisoner
11

1
2

must show that the state court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-minded
disagreement.

3
4 Id. at 103. In other words, so long as fair-minded jurists could disagree on the correctness of the
5 state courts decision, the decision cannot be considered unreasonable. Id. at 101. In applying
6 this standard, “a habeas court must determine what arguments or theories supported . . . or could
7 have supported the state court’s decision; and then it must ask whether it is possible fair-minded
8 jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
9 decision of [the Supreme Court].” Id. at 102. This objective standard of reasonableness applies
10 to review under both subsections of 28 U.S.C. § 2254(d). See Hibbler v. Benedetti, 693 F.3d
11 1140, 1146-47 (9th Cir. 2012). If the Court determines that the state court decision is objectively
12 unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the
13 error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619,
14 637 (1993).
15

Petitioner has the burden of establishing that the decision of the state court is contrary to

16 or involved an unreasonable application of United States Supreme Court precedent. Baylor v.
17 Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the
18 states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a
19 state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669 n.6
20 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).
21

The AEDPA requires considerable deference to the state courts. “[R]eview under §

22 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
23 the merits,” and “evidence introduced in federal court has no bearing on 2254(d)(1) review.”
24 Cullen v. Pinholster, __ U.S. __, __, 131 S. Ct. 1388, 1398-99 (2011). “Factual determinations
25 by state courts are presumed correct absent clear and convincing evidence to the contrary.”
26 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a
27 state court factual finding is not entitled to deference if the relevant state court record is
28
12

1 unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963),
2 overruled by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
3

If a petitioner satisfies either subsection (1) or (2) for a claim, then the federal court

4 considers that claim de novo. See Panetti, 551 U.S. at 953 (when section 2254(d) is satisfied,
5 “[a] federal court must then resolve the claim without the deference AEDPA otherwise
6 requires.”); Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008).
7

In this case, many of Petitioner’s claims were raised and rejected by the California

8 Supreme Court on direct appeal. However, many of his claims were raised in his state habeas
9 petition to the California Supreme Court, and summarily denied on the merits. In such a case
10 where the state court decision is unaccompanied by an explanation, “the habeas petitioner’s
11 burden still must be met by showing there was no reasonable basis for the state court to deny
12 relief.” Richter, 562 U.S. at 98. The Supreme Court stated that “a habeas court must determine
13 what arguments or theories supported or . . . could have supported, the state court’s decision; and
14 then it must ask whether it is possible fair-minded jurists could disagree that those arguments or
15 theories are inconsistent with the holding in a prior decision of this Court.” Id. at 786 (emphasis
16 added). Petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the
17 state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting
18 Richter, 562 U.S. at 98). “Crucially, this is not a de novo review of the constitutional question,”
19 id., as “even a strong case for relief does not mean the state court's contrary conclusion was
20 unreasonable,” Id. (quoting Richter, 562 U.S. at 102); (see also Murray v. Schriro, 745 F.3d 984,
21 996-97, (9th Cir. 2014)).
22

When reviewing the California Supreme Court's summary denial of a petition, this Court

23 must consider that the California Supreme Court's summary denial of a habeas petition on the
24 merits reflects that court's determination that:
25
26
27

[T]he claims made in th[e] petition do not state a prima facie case entitling the
petitioner to relief. It appears that the court generally assumes the allegations in
the petition to be true, but does not accept wholly conclusory allegations, and will
also review the record of the trial ... to assess the merits of the petitioner's claims.

28
13

1 Pinholster, 131 S. Ct. at 402 n.12 (quoting In re Clark, 5 Cal. 4th 750, 770 (1993) (citing People
2 v. Duvall, 9 Cal. 4th 464, 474 (1995)). Accordingly, if this Court finds Petitioner has unarguably
3 presented a prima facie case for relief on a claim, the state court's summary rejection of that
4 claim would be unreasonable. Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); Nunes v.
5 Mueller, 350 F.3d 1045, 1054-55 (9th Cir. 2003).
6

For any habeas claim that has not been adjudicated on the merits by the state court, the

7 federal court reviews the claim de novo without the deference usually accorded state courts
8 under 28 U.S.C. § 2254(d)(1). Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir.2005); Pirtle v.
9 Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In such instances, however, the provisions of 28
10 U.S.C. § 2254(e) still apply. Pinholster, 131 S. Ct at 1401 (“Section 2254(e)(2) continues to
11 have force where § 2254(d)(1) does not bar federal habeas relief.”); Pirtle, 313 F.3d at 1167–68
12 (stating that state court findings of fact are presumed correct under § 2254(e)(1) even if legal
13 review is de novo).
14

V.

15

PROCEDURAL BARS

16

All of Petitioner’s claims have been raised to the California Supreme Court and denied on

17 the merits. In addition, some of his claims were denied as procedurally barred. As to those
18 claims, Respondent has argued that California’s timeliness rule for state habeas petitions,
19 California’s rule barring claims on state habeas that could have been presented on direct appeal,
20 and California’s contemporaneous objection rule are all adequate and independent state grounds
21 that bar federal habeas review. The Court will not address procedural default with this order
22 because all of the claims lack merit, and the Court finds the question of procedural default to be
23 relatively complicated in this case. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)
24 (Courts may reach the merits of a case prior to addressing procedural default); Bell v. Cone, 543
25 U.S. 447, 451 n.3 (2005); Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir. 2011).
26
27

VI.
REVIEW OF CLAIMS

28
14

1

A.

Claims Relating to Conviction and Sentence

2

1.

Sufficiency of the Evidence - Claims 13 and 34

3

In claims 1 and 3, Petitioner states that he was convicted and sentenced for the first

4 degree murders of Mr. Bocanegra and Mrs. Bocanegra on insufficient evidence that he acted
5 with deliberation and premeditation, see People v. Anderson, 70 Cal.2d 15, 26-27 (1968),
6 depriving him of due process under the Fourteenth Amendment.
7

a.

8

A federal habeas court reviews challenges to the sufficiency of the evidence by

Clearly Established Law

9 determining whether in “viewing the evidence in a light most favorable to the prosecution, any
10 rational trier of fact could have found the essential elements of the crime beyond a reasonable
11 doubt.” Lewis v. Jeffers, 497 U.S. 764, 781 (1990). “A reviewing court must consider all of the
12 evidence admitted by the trial court, regardless whether that evidence was admitted erroneously.”
13 McDaniel v. Brown, 558 U.S. 120, 131 (2010). Sufficiency of the evidence claims raised in §
14 2254 proceedings must be measured with reference to substantive requirements as defined by
15 state law. Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979). In cases where the evidence is
16 unclear or would support conflicting inferences, the federal court “must presume -- even if it
17 does not affirmatively appear in the record -- that the trier of fact resolved any such conflict in
18 favor of the prosecution, and must defer to that resolution.” Id. at 326.

To prevail here,

19 Petitioner must show “that the prosecution’s case against him “was so lacking that the trial court
20 should have entered a judgment of acquittal.” McDaniel, 558 U.S. at 131.
21

The AEDPA adds another layer of deference over the already deferential Jackson

22 standard. Under the AEDPA, the federal court may not grant a habeas petition unless it finds that
23 the state court unreasonably applied the principles underlying the Jackson standard when
24 reviewing the petitioner’s claim. See e.g., Juan H. v. Allen, 408 F.3d 1262, 1275 n.12 (9th Cir.
25 2005); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997) (en banc) (recognizing that
26 “unreasonable application” standard applies to insufficient evidence claim). “Expressed more
27
3

28

4

The legal bases of the Fifth, Sixth and Eighth Amendments were stricken as unexhausted. ECF No. 60 at 8:25-26.
The legal bases of the Fifth, Sixth and Eighth Amendments were stricken as unexhausted. ECF No. 60 at 9:1-3.

15

1 fully, this means a reviewing court faced with a record of historical facts that supports conflicting
2 inferences must presume -- even if it does not affirmatively appear in the record -- that the trier
3 of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.”
4 McDaniel, 558 U.S. at 133.
5

Evidence is sufficient under the due process clause where “after viewing the evidence in

6 the light most favorable to the prosecution, any rational trier of fact could have found the
7 essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319; see also
8 Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992).
9
10

b.

Review of Claims 1 and 3

The state supreme court, on direct appeal, considered claimed insufficiency of the

11 evidence and rejected Petitioner’s claim of “wading into [the] fight” and being ineffectual in the
12 assaults; finding instead that the evidence clearly reflects that defendant aided and abetted Joey
13 in killing both Mr. Bocanegra and Mrs. Bocanegra, as follows:
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

[S]ubstantial evidence supports the trial court's finding that Joey Bocanegra
intended to kill his parents, that he premeditated and deliberated the murders, and
that defendant can be found vicariously liable for the murders as an aider and
abettor. As we have observed, an aider and abettor must act with knowledge of
the criminal purpose of the perpetrator and with an intent either of committing, or
of encouraging or facilitating commission of, the offense. [Citation] We have also
recognized that if the aider and abettor undertakes acts “with the intent that the
actual perpetrator's purpose be facilitated thereby, he is a principal and liable for
the commission of the offense.” [Citation] Thus, the basis of liability for the
perpetrator applies to the aider and abettor and extends to “the natural and
reasonable consequences of the acts he knowingly and intelligently aids and
encourages.” [Citation] As we explain, we conclude that defendant shared Joey's
intent to kill, and in assisting Joey in committing the crimes, understood, and
facilitated, the full extent of Joey's criminal purpose.
Hernandez testified, and defendant admitted to Detective Stratton, that defendant
initially waited outside while Joey entered his parents' house. Defendant then
entered the house after hearing the sounds of a fight between Joey and Juan.
Defendant told Hernandez that he went inside the house to break up the fight
between Joey and his father, but the facts belie his stated intent. When defendant
entered the house, he saw Joey fighting with his father. Rather than come to
Juan's aid, defendant grabbed a curved metal bar and commenced beating Juan.
Joey's actions, according to defendant's statements to prosecution witnesses,
indicated that Joey deliberated over his father's killing. Joey initially struck Juan
in the hallway and then, in the kitchen, obtained a knife that he used to stab Juan.
In our view, Joey formed a clear intent to kill, at the latest, during the altercation
with his father, and obtained a kitchen knife to carry out that plan. Our cases hold
16

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

that planning activity occurring over a short period of time is sufficient to find
premeditation. “‘The true test is not the duration of time as much as it is the extent
of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly ....'” [Citation]
There was also ample evidence of motive. The evidence supports a strong
inference that Joey entered his parents' house to rob them. When his father
resisted the robbery, Joey was motivated to murder him in order to gain access to
both money and tangible goods, including a television set. Substantial evidence
supports a finding that Joey believed Juan stood in the way of his plan.
Finally, the trial court could infer from the evidence that the manner of killing
tended to demonstrate Joey acted with premeditation and deliberation. The attack
occurred in a series of rooms, indicating that Juan's repeated attempts to break
away from his murderers were consistently thwarted by the attackers' relentless
pursuit of him, even after he was gravely wounded. A rational finder of fact could
infer that the manner of killing, when combined with Joey's retrieval of the knife
in the kitchen, and defendant's retrieval of a metal bar used in clubbing a
defenseless Juan, is sufficient to support the trier of fact's implied finding that
Joey formed the plan to kill his parents during the altercation, located the murder
weapon, and along with defendant, deliberately murdered his father. [Citation]
The same evidence supports the trial court's finding that defendant shared Joey's
intent and plan to kill Juan, and thus was liable, as an aider and abettor, for Juan's
murder. [Citation] The killing of Juan ended after a prolonged knife attack and
beating from which Juan attempted to defend himself. Defendant's personal
involvement in the murder was substantial. Far from merely acting as a lookout,
or beating Juan after he was already dead, defendant was actively involved in
assisting Joey in Juan's murder. Defendant's admitted act of arming himself with a
curved metal bar before joining the altercation between Joey and Juan indicates he
shared Joey's plan. [Citation] From this evidence, the trier of fact could
reasonably infer defendant knowingly engaged or assisted in Juan's murder as an
aider and abettor. [Citation]
As to Juanita's murder, defendant asserts the evidence similarly does not support
the conviction. He claims that he “did not personally kill Juanita [because] she
was stabbed to death by Joey.” He asserts that there is “no evidence in the record
that [he] held Juanita down, helped push her back to the sewing room, or had any
contact with her while Joey was stabbing her.” He contends that there is no
evidence to support the People's theory that defendant aided Joey by hitting
Juanita with a bar and that “[t]here is simply no evidence that [his] initial
grabbing of Juanita actually aided, or even was intended to aid, Joey's subsequent
stabbing of his mother.” Finally, defendant asserts in his reply brief that his
“efforts to tie and gag Juanita are altogether inconsistent with an intent to kill
her.”
Again, the evidence supports the court's verdicts and refutes defendant's
contention. Hernandez testified defendant told him that during the murder of Juan,
Juanita screamed. Defendant grabbed Juanita and told Joey to “shut her up.” Joey
then stabbed his mother 26 times. A bloodstained garment was wrapped around
Juanita's neck, and her wrists had been tied together with a piece of fabric. The
pathologist (Holloway) opined that Juanita died of the stab wounds and that the
ligature constriction of her neck was a possible contributing cause. She also had
severe scalp injuries that Holloway concluded were consistent with those inflicted
17

5

by a long bar or pipe less than one-half inch in diameter, similar to the instrument
used by defendant to inflict Juan's scalp wounds. The trial court could reasonably
infer from the evidence that Juanita was killed in order to keep her from being a
percipient witness to the murder of her husband. Thus, viewing the evidence in
the light most favorable to the People, we conclude a “rational trier of fact” could
have been persuaded “that the killing was the result of preexisting reflection and
weighing of considerations rather than mere unconsidered or rash impulse.”
[Citation] Defendant's participation in Juanita's murder, like his aiding and
abetting in Juan's killing, clearly supports a finding that defendant aided and
abetted her murder. [Citation]

6

Sanchez, 12 Cal.4th at 33-36.

1
2
3
4

7
8

Under California law, “[m]urder is the unlawful killing of a human being . . . with malice

9 aforethought.” Cal. Pen. Code § 187, subd. (a). “[A]ll murder which is perpetrated . . . by any
10 kind of willful, deliberate, and premeditated killing . . . is murder of the first degree . . . .” Cal.
11 Pen. Code § 189; see People v. Berryman, 6 Cal.4th 1048, 1085) (1993) (overruled on other
12 grounds, People v. Hill, 17 Cal.4th 800, 822-23 (1998). Premeditation and deliberation are
13 generally established by proof of (1) planning activity; (2) motive (established by a prior
14 relationship and/or conduct with the victim); and (3) manner of killing. People v. Anderson, 70
15 Cal.2d 15, 26-27 (1968). The California Supreme Court “sustains verdicts of first degree murder
16 typically when there is evidence of all three types and otherwise requires at least extremely
17 strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).” Id., at 27.
18

A person “aids and abets the commission of a crime when he or she, acting with (1)

19 knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
20 committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids,
21 promotes, encourages or instigates, the commission of the crime.” People v. Beeman, 35 Cal.3d
22 547, 561 (1984).
23

The state court could reasonably have concluded that the fight with Mr. Bocanegra

24 resulted from pursuit of the joint motive of Joey and Petitioner to obtain money from Mr.
25 Bocanegra, the stated reason for their going to the Bocanegra home. (See Clerk’s Transcript on
26 Appeal, hereinafter “CT”, 502-504.) After the murders, in furtherance of this motive, Petitioner
27 assisted Joey in removing property from the Bocanegra home (CT 484.) Some of this property
28
18

1 was later found in Petitioner’s room, or sold by him. (Reporter’s Transcript on Appeal,
2 hereinafter “RT”, 25-29, 35-37, 67-69.)
3

Petitioner disclaims premeditation and deliberation in the murders, claiming Joey, and by

4 extension Petitioner, acted rashly and on impulse. But the extended nature and duration of the
5 struggles with Mr. Bocanegra and Mrs. Bocanegra, with Joey taking time to get a kitchen knife
6 (CT 504; RT 2854), and Petitioner attempting to subdue and restrain each of the victims during
7 Joey’s assault on them, seeing Joey stab them, along with the multiple stab and blunt force
8 wounds inflicted during room to room struggle with the victims, could reasonably suggest a plan
9 to kill them. (CT112-120; 149-153; 181; 192-194; 357-383; 479-483; 488.) Each victim suffered
10 multiple stab wounds, Mrs. Bocanegra was stabbed at least 26 times and had 6 scalp wounds and
11 Mr. Bocanegra was stabbed at least eight times and had nine scalp wounds. (Id.) Both victims
12 were left unassisted to bleed to death. (CT 112-114, 117-119.)

There was evidence Mrs.

13 Bocanegra’s wrists had been tied together and that she had been gagged. (CT 113, 149-150,
14 153.) Jailhouse informant Hernandez consistently testified Petitioner told him that when
15 fighting broke out between Joey and Mr. Bocanegra (CT 479-505), in the hallway (id.; RT 2843,
16 2852-2853), Petitioner responded by hitting Mr. Bocanegra on the head nine times with a curved
17 bar (CT 479-505; CT 112-114; 117-119), that when Mrs. Bocanegra came out of a back bedroom
18 and started yelling Petitioner grabbed her and told Joey to “shut her up.” (CT 483, 488, 504.)
19 Petitioner’s claim that it was Joey who stabbed his parents to death (CT 488; RT 121-122), does
20 not undermine evidence above that Petitioner aided and abetted Joey to that end.
21

The physical evidence is consistent with Hernandez’s testimony. The evidentiary record

22 reasonably suggests that Mr. Bocanegra was initially assaulted in the hallway and then murdered
23 in the kitchen (CT 355-381). The coroner, Dr. Holloway, opined Mr. Bocanegra died from
24 multiple stab wounds and that other conditions were the multiple blunt force trauma wounds to
25 Mr. Bocanegra’s head (CT 117-119); that Mrs. Bocanegra died from multiple stab wounds and
26 had six wounds to her scalp (CT 112-115;, 153-154); that the scalp wounds were caused by an
27 instrument different from that used to inflict the stab wounds; and that ligature construction was
28
19

1 a possible contributing cause. (CT 112-119.)
2

Both at the preliminary hearing and the penalty phase, Hernandez testified that Petitioner

3 struck Mr. Bocanegra with a bar (CT 479-482, 500-501, RT 2843-2844, 2854), and that he
4 grabbed or “rushed” Mrs. Bocanegra, a witness to Mr. Bocanegra’s murder (id.; RT 153, 189)
5 and told Joey to “shut her up” (CT 483, 504; RT 2844). Hernandez testimony that the altercation
6 between Mr. Bocanegra and Joey started in the hallway and moved to the kitchen is consistent
7 with the bloodstain pattern evidence, (CT 355-383; 479, 487-488, 500-501; RT 2843-2845) and
8 other crime scene evidence. (Id.) Petitioner’s claim that a third person, Robert Reyes (“Reyes”),
9 was in the house during the murders and may have aided Joey in the murders, is not substantially
10 supported by the evidentiary record. (Id.; CT 131-133)
11

Petitioner attempts to discount testimony that he intended to rob the Bocanegras prior to

12 their murder. Petitioner correctly notes that the trial court did not find him guilty of robbing the
13 Bocanegras and found the robbery-murder special circumstance untrue on grounds Petitioner’s
14 intent to rob arose after the murders. (CT 906; RT 235-237.) Even so, Petitioner has not
15 controverted evidence that he used a metal bar during the murders. (CT 479-482, 500-501, RT
16 2843-2844, 2854RT 236). The trial court rejected Hernandez testimony, favorable to Petitioner,
17 that Petitioner merely grabbed Mrs. Bocanegra. (CT 483.)
18

No facts or discrepancies between the testimony and the physical evidence establish or

19 compel the conclusion that Hernandez, by virtue of his alleged substance addiction, his plea deal,
20 or otherwise, was motivated to and did testify falsely or inaccurately. For reasons discussed in
21 claim 7, the state court could reasonably have found Hernandez received no undisclosed sentence
22 concession in return for his testimony. (State Habeas Corpus Petition, hereinafter “SHCP”, Ex.
23 900, pp. 4, 11; State Court Response to Petition, hereinafter “SResp.”, Ex. B.)
24

The state court could reasonably conclude that Petitioner, sharing Joey’s motive of

25 obtaining money from Mr. Bocanegra, took Joey’s side in the struggles with Mr. Bocanegra and
26 Mrs. Bocanegra, verbally assisting and encouraging him and physically restraining and
27 assaulting both victims. Petitioner’s statements to Hernandez, Detective Stratton and reporter
28
20

1 Trihey, and the physical evidence in the Bocanegra home are evidence of his guilt.

Any

2 inconsistencies in Hernandez’s preliminary hearing testimony and his penalty phase testimony
3 are not substantially material or probative of and do not preclude the possibility of his guilt and
4 sentence to death.
5

Moreover, Petitioner inculpated himself in the murders. He asked Bakersfield detective

6 Stratton “what if [he] was present at the Bocanegra home during the murders.” (CT 77-78). He
7 told newspaper reporter Trihey he was a “triple murderer.” (RT 16-18.)
8

A rational trier of fact could have found the essential elements of the crime beyond a

9 reasonable doubt based on the evidence in the record. The state court’s denial of these claims
10 was not contrary to, or an unreasonable application of, clearly established federal law, or based
11 on an unreasonable determination of the facts in light of the evidence presented in the state court
12 proceeding. 28 U.S.C. § 2254(d); Jackson, 443 U.S. at 319.
13

Claims 1 and 3 are denied.5

14

2.

15

In claims 2 and 4, Petitioner claims actual innocence of the first degree murders of Mr.

Actual Innocence - Claims 2 and 4

16 Bocanegra and Mrs. Bocanegra based on evidence existing before trial and later discovered
17 evidence, such that his conviction and sentence represent a fundamental miscarriage of justice
18 violating the Fifth, Sixth, Eighth and Fourteenth Amendments.
19

a.

Clearly Established Law

20

i.

Actual Innocence

21

The showing required for a free standing claim of actual innocence, i.e., a claim

22 irrespective of constitutional error at trial or sentencing, is “extraordinarily high” and must be
23 “truly persuasive.”

Herrera v. Collins, 506 U.S. 390, 417, (1993).

To carry this burden

24 Petitioner must affirmatively prove he is innocent. See Carriger v. Stewart, 132 F.3d 463, 47625 77 (9th Cir. 1997).
26
27
28

5

Reyes pled guilty to first degree murder in the three homicides and to the robberies of Tatman and the Bocanegras
and was sentenced to three consecutive terms of 25 years to life. People v. Robert Gabriel Reyes, Kern County
Superior Court Case No. 34638. Charges against Joey Bocanegra were dismissed for insufficient evidence. People
v. Jose Juan Bocanegra, Kern County Superior Court Case No. 34638.

21

1

In Schlup v. Delo, 513 U.S. 298 (1995) the Supreme Court reached actual innocence as a

2 gateway claim to consideration of otherwise barred Constitutional claims. “If a habeas petitioner
3 . . . presents evidence of innocence so strong that a court cannot have confidence in the outcome
4 of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional
5 error, the petitioner should be allowed to pass through the gateway and argue the merits of his
6 underlying claims.” Schlup at 316. The Schlup court held that the proper standard is that a
7 procedurally defaulted petitioner must show that a constitutional violation has probably resulted
8 in the conviction of one who is actually innocent. Schlup at 326.
9

“The petitioner must show that it is more likely than not that no reasonable juror would

10 have convicted him in the light of the new evidence.” Schlup at 327. Petitioner’s burden is to
11 demonstrate that more likely than not, any reasonable juror would have reasonable doubt. House
12 v. Bell, 547 U.S. 518, 538 (2006). See Sawyer v. Whitley, 505 U.S. 333, 346 (1992) (holding
13 that in order to prove actual innocence, petitioner must show fair probability that rational trier of
14 fact would have entertained reasonable doubt regarding the existence of facts which are
15 prerequisites under state or federal law for imposition of the death penalty).
16

ii.

17

California law requires an aider and abettor to share the specific intent of the perpetrator.

State Law Aider/Abettor

18 Beeman, 35 Cal.3d at 560. An aider and abettor shares the perpetrator’s specific intent by
19 knowing the full extent of the perpetrator’s criminal purpose and giving aid or encouragement
20 with the intent or purpose of facilitating the commission of the crime. Id. California’s 1978
21 death penalty statute requires finding an independent intent to kill as part of the special
22 circumstance for an aider or abettor of felony-murder. People v. Anderson, 43 Cal. 3d 1104,
23 1141-42 (1987). This is consistent with the Eighth Amendment which prohibits the death
24 penalty for an aider and abettor of felony murder who does not actually kill, attempt to kill,
25 intend that a killing or lethal force occur, or act with reckless indifference to human life.
26 Enmund v. Florida, 458 U.S. 782, 797 (1982); Tison v. Arizona, 481 U.S. 137, 157-58 (1987).
27 Federal court review of instructional error under Beeman is subject to the standard from Brecht,
28
22

1 507 U.S. at 637, whether the error had a substantial or injurious effect on the verdict.
2

b.

3

The California Supreme Court denied these claims as raised in Petitioner’s state petition

Review of Claims 2 and 4

4 for habeas corpus (State Petition for Habeas Corpus, hereinafter “SHCP” or “SPet.”, Claims A &
5 B), to the extent they duplicated sufficiency of evidence claims rejected on appeal.
6

To the extent Petitioner’s actual innocence claims are free standing claims based on the

7 state record, they fail for the reasons stated in claims 1 and 3. To the extent these claims are free
8 standing claims based on alleged newly discovered evidence, the claims not cognizable (see
9 Herrera, 506 U.S. at 400) (the Supreme Court held that free standing claims of “actual innocence
10 based on newly discovered evidence have never been held to state a ground for federal habeas
11 relief absent an independent constitutional violation occurring in the underlying state criminal
12 proceeding.”).
13

The actual innocence claims also fail as gateway claims because it is not likely any

14 reasonable juror would have reasonable doubt that the essential elements of the criminal counts
15 could have been found beyond a reasonable doubt. Petitioner’s statements to jailhouse informant
16 Hernandez, Detective Stratton and reporter Trihey, and the physical evidence in the Bocanegra
17 home all are substantial evidence of his guilt.
18

Hernandez’s testimony at both preliminary hearing and penalty phase that the altercation

19 between Mr. Bocanegra and Joey started in the hallway and moved to the kitchen is consistent
20 with the bloodstain evidence. (CT 355-383; 479, 487-488, 500-501; RT 2843-2845) and other
21 crime scene evidence. (CT 355-380.) His preliminary hearing testimony that Petitioner heard
22 Joey and Mr. Bocanegra arguing, “walked into the house, tried to break ‘em up” (CT 479) and
23 that he (Petitioner) hit Mr. Bocanegra with the bar is not materially inconsistent with
24 Hernandez’s penalty phase testimony that Petitioner grabbed and held Mr. Bocanegra until Joey
25 got the knife and that Petitioner beat Mr. Bocanegra with a bar.
26

Hernandez testimony at the preliminary hearing and the penalty phase was consistent that

27 during Joey’s struggles with Mr. Bocanegra, Petitioner struck Mr. Bocanegra with a bar (CT
28
23

1 479-482, 500-501, RT 2843-2844, 2854), and that he grabbed or “rushed” Mrs. Bocanegra and
2 told Joey to “shut her up” during his struggles with Mrs. Bocanegra (CT 483, 504; RT 2844).
3 Petitioner saw Joey wield a knife during these assaults. (CT 483, 487-489, 504; SPet. Ex. 419, 5,
4 17; RT 121-122.) Mr. Bocanegra and Mrs. Bocanegra succumbed to the multiple stab wounds.
5 (CT 112-119.)
6

As to the Tatman homicide, Hernandez’s preliminary hearing testimony that Petitioner

7 and Joey “hit a black guy in an alley” (CT 488, 497-99) is not, as Petitioner alleges, inconsistent
8 with penalty phase testimony that Petitioner and two other men entered Mr. Tatman’s room at
9 the Bakersfield Inn, and beat him, and the other two stabbed Mr. Tatman with a screwdriver, and
10 that they took Mr. Tatman’s money.

There is no evidence Hernandez’s testimony at the

11 preliminary hearing related to the same incident he testified to at the penalty phase.
12

Petitioner’s assertion that there were actually 3 non-victim shoeprints in the kitchen

13 where Mr. Bocanegra was murdered, so as to implicate Reyes in the Bocanegra murders is not
14 sufficiently supported in the record. As discussed in claims 8 and 10, post, the state court could
15 reasonably have found that the bloodstain evidence and testimony of Hernandez contradicts
16 jailhouse informant Seeley’s account that Petitioner observed Mr. Bocanegra’s murder from the
17 hallway.
18

No facts or discrepancies between the testimony and the physical evidence establish or

19 compel the conclusion that Hernandez, by virtue of his alleged substance addiction, his plea deal,
20 or otherwise, was motivated to and did testify falsely or inaccurately. (See claim 7, ante.)
21 Petitioner has not demonstrated Hernandez received undisclosed sentence concession(s). (SPet.
22 Ex. 900, pp. 4, 11; SResp. Ex. B.)
23

In contrast, the testimony of jailhouse informant Seeley inculpating Reyes in the murders,

24 is inconsistent with the physical evidence. Seeley’s testimony that the altercation with Mr.
25 Bocanegra started and ended in the kitchen (SPet. Ex. 419, pp.5-6, 17-20) is not reasonably
26 consistent with the blood stain patterns that suggest the assault on Mr. Bocanegra began in the
27 hallway. (CT 355-383.)
28
24

1

The physical evidence, Petitioner’s statements to Detective Stratton, and Petitioner’s

2 statements to Reporter Trihey are not persuasive of actual innocence for the reasons discussed in
3 claims 10, 12, 15 and 27, post.
4

Petitioner alleges his severe neurological and psychiatric impairments precluded him

5 from planning the murder and carrying out the plan. But as explained in claim 6, there is no
6 sufficient evidence that Petitioner suffered from neurological or psychiatric impairment
7 precluding, as an aider and abettor, his knowingly and intentionally assisting Joey in the
8 Bocanegra murders.
9

Finally, Petitioner’s assertion that he merely restrained Mrs. Bocanegra is nonetheless

10 sufficient to support a first degree murder conviction as an aider and abettor, especially given
11 that Petitioner had just observed Joey stab his father to death. (CT 483; RT 2843-2854.) It could
12 reasonably be concluded that Petitioner’s restraining Mrs. Bocanegra just after Mr. Bocanegra’s
13 murder satisfied the requirement that an aider or abettor knows the full extent of the perpetrator’s
14 criminal purpose and gives aid to facilitate the commission of the crime. Beeman, 35 Cal. 3d at
15 560.
16

For the reasons stated, a fair-minded jurist could conclude it unlikely any reasonable juror

17 would have reasonable doubt that the essential elements of the criminal counts against Petitioner
18 could have been found beyond a reasonable doubt.
19

The California Supreme Court’s denial of these claims was not contrary to, or an

20 unreasonable application of, clearly established federal law, or based on an unreasonable
21 determination of the facts in light of the evidence presented in the state court proceeding. See 28
22 U.S.C. § 2254(d).
23

Claims 2 and 4 are denied.

24

3.

25

In this claim Petitioner alleges that the California Supreme Court committed appellate

State Appellate Error - Claim 5

26 review error by making an unconstitutional change in the definition of first degree murder (Cal.
27 Pen. Code 189) violating the Fifth, Sixth, Eighth and Fourteenth Amendments.
28
25

1

a.

2

A defendant has a due process right to fair notice of the elements of the crime for which

Clearly Established Law

3 he was convicted. Bouie v. City of Columbia, 378 U.S. 347, 352 (1964).
4

A state’s capital punishment scheme must “minimize the risk of wholly arbitrary and

5 capricious action.” Gregg v. Georgia, 428 U.S. 153, 189 (1976).
6

Absent specific constitutional error, federal habeas review is limited to determining

7 whether the state supreme court’s statutory review was “so arbitrary and capricious as to
8 constitute an independent due process or Eighth Amendment violation.” Lewis v. Jeffers, 497
9 U.S. 764, 780 (1990), citing Donnelly v. DeChristoforo, 416 U.S. 637, 642-43 (1974) (absent a
10 specific constitutional violation, federal habeas review of trial error is limited to whether the
11 error “so infected the trial with unfairness as to make the resulting conviction a denial of due
12 process). The essential function of state appellate court jurisdiction is to ensure “evenhanded,
13 rational, and consistent imposition of death sentences under law.” Campbell v. Blodgett, 997
14 F.2d 512, 522 at n.12 (9th Cir. 1992), citing Pulley v. Harris, 465 U.S. 37, 45 (1984).
15

b.

16

Petitioner contends that the state supreme court retroactively eliminated the distinction

Review of Claim 5

17 between intentional first and second degree murders. He reasons this is so because, prior to his
18 appeal, California law required that premeditated and deliberated first degree murder be shown
19 to be the “result of careful thought and weighing of considerations,” and that conversely “a
20 sudden killing in the course of an argument and struggle” would not be premeditated and
21 deliberated murder. See People v. Lasko, 23 Cal.4th 101, 104 (2000); see Anderson, 70 Cal. 2d
22 at 26-27 (stating types of evidence which might support a finding of premeditation and
23 deliberation). Yet here, he claims, the trial court found the murder of Mr. Bocanegra satisfied
24 the premeditation and deliberation standard even though the killer formed the intent to kill during
25 the fatal altercation and killed with a weapon found at hand. Petitioner alleges there was no
26 evidence of planning activity, no evidence of a preexisting motive, and that multiple stab wounds
27 alone are insufficient to prove premeditation and deliberation. See People v. Caldwell, 43 Cal.
28
26

1 2d 864, 869 (1955).
2

The state supreme court denied this claim when raised in “supplement to existing habeas

3 corpus petition” (claim ZZ), In re Sanchez, S049502, (DD), because that court found substantial
4 evidence that Joey intended to kill his parents and that Petitioner could be found vicariously
5 liable for these murders as an aider and abettor, as follows:
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Joey's actions, according to defendant's statements to prosecution witnesses,
indicated that Joey deliberated over his father's killing. Joey initially struck Juan
in the hallway and then, in the kitchen, obtained a knife that he used to stab Juan.
In our view, Joey formed a clear intent to kill, at the latest, during the altercation
with his father, and obtained a kitchen knife to carry out that plan. Our cases hold
that planning activity occurring over a short period of time is sufficient to find
premeditation. “The true test is not the duration of time as much as it is the extent
of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .” [Citation]
There was also ample evidence of motive. The evidence supports a strong
inference that Joey entered his parents' house to rob them. When his father
resisted the robbery, Joey was motivated to murder him in order to gain access to
both money and tangible goods, including a television set. Substantial evidence
supports a finding that Joey believed Juan stood in the way of his plan.
Finally, the trial court could infer from the evidence that the manner of killing
tended to demonstrate Joey acted with premeditation and deliberation. The attack
occurred in a series of rooms, indicating that Juan's repeated attempts to break
away from his murderers were consistently thwarted by the attackers' relentless
pursuit of him, even after he was gravely wounded. A rational finder of fact could
infer that the manner of killing, when combined with Joey's retrieval of the knife
in the kitchen, and defendant's retrieval of a metal bar used in clubbing a
defenseless Juan, is sufficient to support the trier of fact's implied finding that
Joey formed the plan to kill his parents during the altercation, located the murder
weapon, and along with defendant, deliberately murdered his father. [Citation]
The same evidence supports the trial court's finding that defendant shared Joey's
intent and plan to kill Juan, and thus was liable, as an aider and abettor, for Juan's
murder. [Citation] The killing of Juan ended after a prolonged knife attack and
beating from which Juan attempted to defend himself. Defendant's personal
involvement in the murder was substantial. Far from merely acting as a lookout,
or beating Juan after he was already dead, defendant was actively involved in
assisting Joey in Juan's murder. Defendant's admitted act of arming himself with a
curved metal bar before joining the altercation between Joey and Juan indicates he
shared Joey's plan. [Citation] From this evidence, the trier of fact could
reasonably infer defendant knowingly engaged or assisted in Juan's murder as an
aider and abettor.

26 Sanchez, 12 Cal.4th at 33-34.
27

The Court finds that, contrary to Petitioner assertion, and for the reasons discussed in

28
27

1 claims 1-4, the state court’s analysis could reasonably rely upon evidence before it of a pre2 existing motive to obtain money from Mr. Bocanegra, involving a joint criminal design of
3 multiple and prolonged stab wounds, aided and abetted by Petitioner’s participation with the
4 metal bar, sufficient to find premeditation and deliberation both by Joey and Petitioner. Id.
5 Given the state court’s analysis and the record, there appears to be no risk of arbitrary and
6 capricious verdict.
7

This Court does not find the state court rejection of the claim was contrary to, or an

8 unreasonable application of, clearly established federal law, as determined by the Supreme
9 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
10 light of the evidence presented in the state court proceeding, viewed most favoring the
11 prosecution, Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d); Lewis, 497 U.S. at 780 (absent
12 a specific constitutional error, federal habeas review is limited to determining whether the state
13 Supreme Court’s performance of its statutory review was “so arbitrary and capricious as to
14 constitute an independent due process or Eighth Amendment violation.”)
15

Claim 5 is denied.

16

4.

Ineffective Assistance of Counsel in Guilt And Special Circumstance Phase -

17 Claims 6 through 18
18

In claims 6 through 18, Petitioner alleges various instances during the guilt and special

19 circumstance phase where defense counsel provided ineffective assistance.
20

Eugene Toton (“Toton”) was appointed as lead defense counsel. Gary Frank (“Frank”)

21 was appointed as defense co-counsel. By their agreement, Toton was responsible for the guilt
22 and special circumstance phase and Frank was responsible for the penalty phase. (SHCP Exhs.
23 113, ¶ 4; 137, ¶ 3.) The record before the state court does not demonstrate that defense attorney
24 Frank performed any substantial defense function during the guilty and special circumstance
25 phase.
26

a.

27

The Sixth Amendment right to effective assistance of counsel, applicable to the states

Clearly Established Law

28
28

1 through the Due Process Clause of the Fourteenth Amendment, applies through the sentencing
2 phase of a trial. See Murray, 745 F.3d at 1010-11: U.S. Const. amend. VI; U.S. Const. amend.
3 XIV, § 1; Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963); Silva v. Woodford, 279 F.3d
4 825, 836 (9th Cir. 2002).
5

The Supreme Court explained the legal standard for assessing a claim of ineffective

6 assistance of counsel in Strickland v. Washington, 466 U.S. 668, 685–87 (1984). Strickland
7 propounded a two prong test for analysis of claims of ineffective assistance of counsel. First, the
8 petitioner must show that counsel's performance was deficient, requiring a showing that counsel
9 made errors so serious that he or she was not functioning as the “counsel” guaranteed by the
10 Sixth Amendment. Strickland, 466 U.S. at 687.

The petitioner must show that “counsel's

11 representation fell below an objective standard of reasonableness,” and must identify counsel’s
12 alleged acts or omissions that were not the result of reasonable professional judgment
13 considering the circumstances. Richter, 562 U.S. at 104 (citing Strickland, 466 U.S. at 688);
14 United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
15

Petitioner must show that counsel's errors were so egregious as to deprive defendant of a

16 fair trial, one whose result is reliable. Strickland, 466 U.S. at 688. Judicial scrutiny of counsel's
17 performance is highly deferential, and the habeas court must guard against the temptation “to
18 second-guess counsel’s assistance after conviction or adverse sentence.” Id. at 689. Instead, the
19 habeas court must make every effort “to eliminate the distorting effects of hindsight, to
20 reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
21 counsel’s perspective at the time.” Id.; see also Richter, 562 U.S. at 107. A court indulges a
22 “‘strong presumption’ that counsel's representation was within the ‘wide range’ of reasonable
23 professional assistance.” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687); Sanders
24 v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). This presumption of reasonableness means that
25 not only do we “give the attorneys the benefit of the doubt,” we must also “affirmatively
26 entertain the range of possible reasons [defense] counsel may have had for proceeding as they
27 did.” Pinholster, 131 S. Ct. at 1407.
28
29

1

The Supreme Court has “declined to articulate specific guidelines for appropriate

2 attorney conduct and instead ha[s] emphasized that ‘[t]he proper measure of attorney
3 performance remains simply reasonableness under prevailing professional norms.’” Wiggins v.
4 Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688). However, “general
5 principles have emerged regarding the duties of criminal defense attorneys that inform [a court's]
6 view as to the ‘objective standard of reasonableness' by which [a court must] assess attorney
7 performance, particularly with respect to the duty to investigate.” Summerlin v. Schriro, 427
8 F.3d 623, 629 (9th Cir. 2005). “[S]trategic choices made after thorough investigation of law and
9 facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690.
10

However, strategic choices made after less than complete investigation are reasonable

11 precisely to the extent that reasonable professional judgments support the limitations on
12 investigation. In other words, counsel has a duty to make reasonable investigations or to make a
13 reasonable decision that makes particular investigations unnecessary. In any ineffectiveness
14 case, a particular decision not to investigate must be directly assessed for reasonableness in all
15 the circumstances, applying a heavy measure of deference to counsel's judgment. Wiggins, 539
16 U.S. at 521 (quoting Strickland, 466 U.S. at 690–91); see also Thomas v. Chappell, 678 F.3d
17 1086, 1104 (9th Cir. 2012) (counsel's decision not to call a witness can only be considered
18 tactical if he had “sufficient information with which to make an informed decision”); Reynoso v.
19 Giurbino, 462 F.3d 1099, 1112–1115 (9th Cir. 2006) (counsel's failure to cross-examine
20 witnesses about their knowledge of reward money cannot be considered strategic where counsel
21 did not investigate this avenue of impeachment); Jennings v. Woodford, 290 F.3d 1006, 1016
22 (9th Cir. 2002) (counsel's choice of alibi defense and rejection of mental health defense not
23 reasonable strategy where counsel failed to investigate possible mental defenses).
24

Second, the petitioner must demonstrate prejudice, that is, he must show that “there is a

25 reasonable probability that, but for counsel's unprofessional errors, the result . . . would have
26 been different.” Strickland, 466 U.S. at 694. “It is not enough ‘to show that the errors had some
27 conceivable effect on the outcome of the proceeding.’” Richter, 562 U.S. at 104 (quoting
28
30

1 Strickland, 466 U.S. at 693). “Counsel’s errors must be ‘so serious as to deprive the defendant
2 of a fair trial, a trial whose result is reliable.’” Id. (quoting Strickland, 466 U.S. at 687). Under
3 this standard, we ask “whether it is ‘reasonably likely’ the result would have been different.”
4 Richter, 562 U.S. at 111 (quoting Strickland, 466 U.S. at 696).
5

That is, only when “[t]he likelihood of a different result [is] substantial, not just

6 conceivable,” id., has the defendant met Strickland’s demand that defense errors were “so serious
7 as to deprive the defendant of a fair trial.” Id., at 104 (quoting Strickland, 466 U.S. at 687). A
8 court need not determine whether counsel's performance was deficient before examining the
9 prejudice suffered by the petitioner as a result of the alleged deficiencies. Strickland, 466 U.S. at
10 697. Since the defendant must affirmatively prove prejudice, any deficiency that does not result
11 in prejudice must necessarily fail.
12

Under the AEDPA, the Court does not apply Strickland de novo. Rather, the Court must

13 determine whether the state court’s application of Strickland was unreasonable. Richter, 562
14 U.S. at 99-100. Establishing that a state court’s application of Strickland was unreasonable
15 under 28 U.S.C. § 2254(d) is very difficult. Richter, 562 U.S. at 100. Since the standards
16 created by Strickland and § 2254(d) are both “highly deferential” when the two are applied in
17 tandem, review is “doubly” so. Richter, 562 U.S. at 105 (quoting Knowles v. Mirzayance, 556
18 U.S. 111, 123 (2009)). Further, because the Strickland rule is a “general” one, courts have “more
19 leeway . . . in reaching outcomes in case-by-case determinations” and the “range of reasonable
20 applications is substantial.” Id. at 101; Premo v. Moore, 562 U.S. 115, 127 (2011).
21

If the petitioner makes an insufficient showing as to either one of the two Strickland

22 components, the reviewing court need not address the other component. Strickland, 466 U.S. at
23 697.
24

b.

25

In this claim, Petitioner alleges ineffective assistance of counsel by failure to investigate

Review of Claim 6

26 and present evidence of mental state defenses, violating his Fifth, Sixth, Eighth and Fourteenth
27 Amendment rights.
28
31

1

Petitioner raised this claim in his state petition for habeas corpus. (SPet. claim C.) The

2 California Supreme Court summarily denied the claim in a decision unaccompanied by
3 explanation.

In re Sanchez, S049502 (DD.) In such a case where the state court denied

4 Petitioner’s state petition for habeas corpus without an explanation, “the habeas petitioner’s
5 burden still must be met by showing there was no reasonable basis for the state court to deny
6 relief,” Richter, 562 U.S. at 98, and this Court “must determine what arguments or theories
7 supported or . . . could have supported, the state court’s decision; and then it must ask whether it
8 is possible fair-minded jurists could disagree that those arguments or theories are inconsistent
9 with the holding in a prior decision of this Court.” Id. (emphasis added).
10

Petitioner contends that a reasonable investigation would have revealed his organic brain

11 difficulties and psychiatric impairments relating to childhood abuse and trauma and deprivations
12 and his long history of substance abuse. During the week prior to the homicides, Petitioner
13 alleges he drank alcohol and smoked PCP continually and in large amounts, triggering a post14 traumatic stress reaction, precluding his forming an intent to kill and premeditation and
15 deliberation during the Bocanegra homicides. He claims his substance abuse led to long-term
16 brain dysfunction. (SHCP Ex. 114, ¶¶ 67-70.)
17

The evidence proffered by Petitioner suggests chronic substance abuse beginning as early

18 as 1977. (SPet. Exhs. 105, pp. 64-65, 74-75; 110, p. 1; 119, p. 8; 123, p. 1; and 128,at pp. 1-2.)
19 Petitioner offers evidence that he engaged in substance abuse during the weeks prior to the
20 murders. (SPet. Ex. 105, pp. 85-87.) However, Respondent correctly notes the absence of
21 competent evidence that Petitioner ingested and/or was under the influence of phencyclidine,
22 marijuana, or alcohol on the days the Bocanegra and Tatman murders occurred. Based on the
23 record before it, the state court could reasonably have found that Petitioner was not under the
24 influence of phencyclidine (PCP), marijuana, or alcohol at the time of the Bocanegra and Tatman
25 murders.
26

The state court could have reasonably concluded that Petitioner’ statements to jailhouse

27 informant Hernandez (CT 479-484, 487-489, 495, 500-505), detective Stratton (CT 77-78), and
28
32

1 reporter Trihey (RT 16-20; 175-181; SPet. Exhs. 700-701) demonstrated Petitioner’s intentional
2 and deliberate aiding and abetting of Joey in the Bocanegra murders. This being the case, a
3 tactical decision not to investigate and present such a defense could be reasonable where
4 evidence is lacking, or it could go toward aggravation. See Strickland, 466 U.S. at 690-91.
5

Post-offenses jail records and medications Petitioner allegedly was given while

6 incarcerated (SHCP Exhs. 601, 602) do not show his emotional and mental state at the time of
7 the crimes.
8

Defense psychologist Donaldson, who evaluated Petitioner in May 1987, found that

9 although there were indications of organic difficulties in perceptual motor integration, Petitioner
10 was of average intelligence. Specifically, Donaldson stated that:
11
12
13

There were no indications through the testing of deficits in reality testing, nor of a
thought disorder of any kind. There were no indications of significant anxiety or
depression. In spite of his socially and educationally deprived background . . . Mr.
Petitioner is a highly sociopathic individual.

14 (SPet. Ex. 106, pp. 1-2.)
15

Petitioner claims effective counsel would have been aware of the evidence showing

16 serious mental problems and would have investigated this evidence.

He points to a 1995

17 neuropsychological evaluation by psychologist Froming finding severe diffuse organic brain
18 damage and localized brain dysfunction. (SHCP Ex. 114, ¶¶ 39-60.) He points to post-offense
19 jail records which showed continuing mental problems including paranoia, depression, stress,
20 insomnia, inability to eat and a suicide attempt, and that he was given medication for these
21 conditions.

He also notes his 1995 evaluation by defense psychiatrist, Dr. Foster, finding

22 depression, mental impairment and post-traumatic stress disorders from childhood trauma and
23 deprivation of basic necessities, exacerbated by substance abuse, all possibly extending back to
24 the time of the instant homicides. (SHCP Ex. 111, ¶¶ 16-17, 20-23, 79-95.) He alleges defense
25 counsel missed this opportunity to show lack of premeditation and deliberation, and also
26 mistakenly believed voluntary intoxication would be no defense to felony murder. He further
27 alleges that his impairments made him more likely to follow counsel's advice to waive a full
28
33

1 defense and also affected his ability to understand the consequences of doing so.
2

Respondent views these allegations as speculation. Respondent contends that Petitioner’s

3 statements to reporter Trihey did not necessarily imply that Petitioner believed his dead mother
4 was alive. Respondent contends that Hernandez’s observation that Petitioner was suicidal is
5 mere conjecture.

Respondent contends that the 1995 opinions of psychiatrist Foster and

6 psychologist Froming of a high probability of mental disorders and impairments at the time of
7 the crimes and subsequent trial are likewise speculation and surmise.
8

This Court agrees that Petitioner’s proffer is not sufficient evidence of mental impairment

9 at the time of the murders and subsequent trial. As discussed in claims 1-4, ante, the substantial
10 evidence shows Petitioner knowingly and intentionally assisted Joey in the Bocanegra murders
11 and confessed the same to reporter Trihey. Significantly, Petitioner told detective Boggs of his
12 involvement in the Tatman murder (CT 288-320) and acknowledged that “he was going to prison
13 for the rest of his life anyway” for his role in the Bocanegra murders. (CT 314.)
14

The Court does not find post-custody psychological and psychiatric reports sufficient

15 evidence that, at the time of the crimes and trial thereon, Petitioner suffered neurological or
16 psychological impairments. Significantly, there is no evidence defense psychiatrist Donaldson
17 recommended to Toton that a neuropsychological evaluation be performed.

Psychiatrist

18 Matychowiak, following his November 1987 court-ordered examination, found that Petitioner
19 was not suicidal or delusional or suffering memory gaps (SPet. Ex. 520, p. 5); that Petitioner
20 planned to tell the judge he was guilty (id. at 2); and that Petitioner understood the proceedings
21 and could cooperate with counsel. (Id. at 6.) Petitioner told Matychowiak that he planned to tell
22 the jury he was guilty and “get it over with.” (SPet. Ex. 520, p. 2.) Dr. Matychowiak found
23 Petitioner competent to stand trial.
24

Additionally, Petitioner cannot establish prejudice from defense counsel’s alleged

25 ineffectiveness because a change in the outcome had mental defenses been further investigated
26 and presented is not reasonably likely given the substantial evidence against him and his
27 expressed desire to plead guilty. That is, mental state defenses would not have been sufficient to
28
34

1 undermine confidence in the trial outcome. See U.S. v. Lewis, 786 F.2d 1278, 1283 (5th Cir.
2 1986). Defense psychologist Donaldson found Petitioner to be of average intelligence and
3 though there were indications in perceptual motor integration, no deficits in reality testing or
4 thought disorder was detected. (SPet. Ex. 106, p.2.) Court appointed psychiatrist Matychowiak
5 came to essentially the same conclusions. (SPet. Ex. 520, p.1; CT 646.) Toton could reasonably
6 have believed Donaldson’s negative findings were not relevant at the guilt and special
7 circumstance phase. (SPet. Ex. 137, p. 2.)
8

Petitioner never alleged during trial proceedings that he was mentally impaired or that he

9 did not knowingly participate in the homicides. Rather he admitted his knowing participation to
10 reporter Trihey (RT 181; see SPet. Exhs. 700-701), detective Stratton (CT 77-78) and informant
11 Hernandez (CT 479-484, 487-489). Such a defense was contrary to Petitioner’s stated desire to
12 plead guilty to the Bocanegra murders (SPet. Ex. 520, pp. 2-4) and “dying for his crimes but
13 dying with a clear conscience” (SPet. Ex. 700). In fact, Petitioner proceeded to waive jury trial
14 on the guilt and special circumstances phase and submit on the preliminary hearing transcript and
15 testimony of additional prosecution witnesses.

(See Sanchez, 12 Cal.4th at 23-30.)

The

16 evidence does not suggest a reasonable probability that Petitioner would have agreed to go
17 forward on a mental defense, or that if he had, it would have been successful given his
18 incriminating statements.
19

For the reasons stated, a fair-minded jurist could have found that Petitioner failed to

20 establish that defense counsel’s performance fell below an objective standard of reasonableness
21 and that, but for counsel’s unprofessional errors, the result of the proceeding would have been
22 different. Strickland, 466 U.S., at 687-694.
23

It does not appear that the state court rejection of the claim was contrary to, or an

24 unreasonable application of, clearly established federal law, as determined by the Supreme
25 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
26 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
27

Claim 6 is denied.

28
35

1

c.

2

Petitioner alleges ineffective assistance of counsel by failure to investigate and impeach

Review of Claim 7

3 informant Hernandez, the principal witness against him, violating his Fifth, Sixth, Eighth and
4 Fourteenth Amendment rights.
5

The California Supreme Court summarily denied this claim (SPet. Claim D) raised in

6 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD.) As noted, in such a
7 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
8 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
9 arguments or theories supported or . . . could have supported, the state court’s decision; and then
10 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
11 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
12 added).
13

Petitioner claims that, though Hernandez’s history of drug abuse and heroin addiction

14 was available to defense counsel, counsel deficiently failed to investigate these matters or
15 interview Hernandez. (SHCP Exhs. 137, ¶ 12; 113, ¶ 11.) This even though Hernandez’s
16 allegedly inconsistent testimony may have been related to drug use and the plea deal he received
17 in exchange for his testimony. Petitioner claims additional evidence discovered might have
18 motivated Toton to put on a full defense. (SHCP Ex. 137, ¶ 18.)
19

This Court is unconvinced. For the reasons and upon consideration of the evidence

20 discussed in claims 1 through 4, ante, the state court could reasonably have determined there was
21 no basis upon which Petitioner could have effectively impeached Hernandez. Petitioner has not
22 shown that Hernandez gave materially contradictory, inconsistent or false testimony, or that
23 Hernandez was motivated by an undisclosed plea bargain. No facts or discrepancies between the
24 testimony and the physical evidence establish or compel the conclusion that Hernandez, by virtue
25 of his alleged substance addiction, his plea deal, or otherwise, was motivated to and did testify
26 falsely or inaccurately. (SPet. Ex. 900, pp. 4, 11; SResp. Ex. B.)
27

Defense counsel Toton could have made a reasoned tactical decision not to interview

28
36

1 Hernandez. Having cross-examined Hernandez at the preliminary hearing, Toton determined on
2 that basis not to interview him. (SPet. Ex. 137, pp. 3-4.) Moreover, Toton did ask Hernandez
3 about any undisclosed plea deal during cross-examination in the guilt and special circumstances
4 phase. Hernandez’s testimony was consistent with Petitioner’s statements and the physical
5 evidence, that he had not been offered any disposition of then pending criminal matters prior to
6 agreeing to testify at the Petitioner prosecution. (CT 576-577.) Toton later cross-examined
7 Hernandez during the penalty phase. Hernandez admitted a deal on a then pending charge in
8 exchange for his testimony in Petitioner’s proceeding. (RT 2850-2851.) The Court does not find
9 that Hernandez’s testimony was false or misleading in this regard.
10

Defense counsel Frank was not responsible for the guilt and special circumstance phase.

11 It was not unreasonable that Frank did not interview Hernandez relative to his statements therein.
12 (SPet. Ex. 113, p. 4.)
13

Additionally, given the speculative nature of impeachment, Petitioner’s desire to plead

14 guilty, and the incriminating evidence, all as discussed in claims 1-4, ante, Petitioner was not
15 prejudiced from any allegedly deficient performance. There was not a reasonable probability of
16 a different outcome from further attempted impeachment of Hernandez.
17

Also, such a defense was contrary to Petitioner’s stated desire to plead guilty to the

18 Bocanegra murders (SPet. Ex. 520, p. 2) and “dying for his crimes but dying with a clear
19 conscience” (SPet. Ex. 700). Petitioner waived jury trial and submitted the guilt and special
20 circumstances phase on the preliminary hearing transcript and on the testimony of additional
21 prosecution witnesses. See Sanchez, 12 Cal.4th at 23-30. The evidence does not suggest a
22 reasonable probability impeachment would have been successful given his incriminating
23 statements to detective Stratton and reporter Trihey and the crime scene evidence corroborated
24 by Hernandez’s testimony. (See claims 1-4, ante.)
25

For the reasons stated, it is clear that a fair-minded jurist could have found that Petitioner

26 failed to establish that defense counsel’s performance fell below an objective standard of
27 reasonableness and that, but for counsel’s unprofessional errors, the result of the proceeding
28
37

1 would have been different. Strickland, 466 U.S., at 687-694.
2

It does not appear that the state court rejection of the claim was contrary to, or an

3 unreasonable application of, clearly established federal law, as determined by the Supreme
4 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
5 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
6

Claim 7 is denied.

7

d.

8

Petitioner claims ineffective assistance of counsel by failure to investigate and present

Review of Claim 8

9 testimony of jailhouse informant Seeley, violating his Sixth, Eighth and Fourteenth Amendment
10 rights.
11

The California Supreme Court summarily denied this claim (SPet. Claim E) raised in

12 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD.) As noted, in such a
13 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
14 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
15 arguments or theories supported or . . . could have supported, the state court’s decision; and then
16 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
17 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
18 added).
19

Petitioner claims that Seeley had conversations both with him and Reyes and would have

20 testified that: Reyes was in the Bocanegra home at the time of the their murders; it was Reyes,
21 not Petitioner, who struck Mr. Bocanegra; that the assault on Mrs. Bocanegra by Petitioner and
22 Reyes was unconnected to Joey’s subsequent killing of her; that Petitioner and Reyes did not
23 intend to rob the Bocanegras; that Petitioner and Reyes had no plan to kill the Bocanegras; and
24 that their deaths resulted from the sudden quarrel between Joey and Mr. Bocanegra. (SHCP Ex.
25 419.) Toton, Petitioner claims, was aware of Seeley’s statement, (SCHP Ex. 420), but did not
26 interview him or investigate. (SHCP Ex. 137, ¶ 12.) This even though counsel for Reyes in his
27 separate proceedings did attempt to investigate and interview Seeley (SHCP Ex. 136, ¶¶ 7, 8),
28
38

1 consistent with the local professional practice of interviewing informants. (SHCP Ex. 127 ¶ 6.)
2

This Court finds that the record could reasonably support a tactical decision by Toton not

3 to investigate Seeley’s possibly exculpating testimony. Toton, who had experience with Seeley
4 on at least one other case, did not believe Seeley had actually spoken with Petitioner (SPet. Ex.
5 137, ¶ 4), did not believe Seeley was credible, and doubted the prosecution would call Seeley.
6 (SPet. Ex. 137, p. 4.) Moreover, Seeley’s version of events could have been viewed as contrary
7 to the physical evidence at the Bocanegra crime scene. (SPet. Ex. 419, pp. 5-6, 17; CT 355-382.)
8 See e.g., Denham v. Deeds, 954 F.2d 1501, 1505-06 (9th Cir. 1992) (defense counsel not
9 ineffective where decision not to call witness based on inconsistencies in witness’s testimony).
10

Seeley’s testimony was in some ways more inculpating of Petitioner than were

11 Hernandez’s statements. Under Seeley’s version of events, Petitioner actively participated in
12 attempts to subdue Mrs. Bocanegra. Seeley apparently would have testified that Petitioner struck
13 several blows to Mrs. Bocanegra’s head with a piece of rebar whereupon Joey stabbed her to
14 death. (SPet. Ex. 419, pp. 6-8, 18-19.) Furthermore, testimony by Seeley likely would have
15 been subject to rebuttal by significant contrary evidence from Hernandez, Stratton, Trihey, as
16 well as by the bloodstain evidence and Petitioner’s professed desire to plead guilty. All this
17 likely obviating any prejudice to Petitioner for not investigating and presenting Seeley.
18

Evidence of Petitioner’s shoeprint in the kitchen undermines Seeley’s July 27, 1987

19 statements to district attorney investigator Pendleton that Petitioner watched the assault on Mr.
20 Bocanegra from the hallway.

(SPet. Ex. 419.) Seeley’s version also could be viewed as

21 inconsistent with Petitioner’s above noted statements to Hernandez and detective Stratton and to
22 reporter Trihey, where Petitioner omits any mention of Reyes’s involvement in the assault by
23 Joey on Mr. Bocanegra.
24

In addition to these considerations of credibility and corroboration, the record reflects

25 that Seeley refused to speak with counsel for Reyes, (SPet. Ex. 136, pp.1-3), who characterized
26 Seeley as “a professional jailhouse snitch.” (SPet. Ex. 139, p. 2.) It is uncertain that he would
27 have agreed to speak with Toton. Even if, as Petitioner alleges, Toton had an unusual practice of
28
39

1 not talking to jailhouse informants except on the witness stand, Toton’s alleged failure in this
2 case to investigate and present evidence from Seeley could nonetheless have been a reasonable
3 trial tactic. Strickland permits counsel to “make a reasonable decision that makes particular
4 investigations unnecessary.” Richter, 562 U.S. at 106 (citing Strickland, 466 U.S. at 691).
5

Accordingly, it was at least arguable that a reasonable attorney could decide to forego

6 investigation into Seeley’s testimony in similar circumstances. Toton was allowed to formulate a
7 strategy, reasonable at the time, and to balance limited resources consistent with effective trial
8 tactics and strategies. See Richter, 562 U.S. at 107. Toton was not required to pursue an
9 investigation that would have been fruitless, or worse, harmful to the defense. Id. at 108.
10

As to defense counsel Frank, he could reasonably have decided not to interview Seeley to

11 the extent any evidence to be provided by Seeley related only to the guilt and special
12 circumstances phase, handled by Toton. (See SPet. Ex. 113, p. 4.)
13

This claim, to the extent based on insufficiency of the evidence and actual innocence, is

14 unpersuasive for reasons discussed in claims 1 through 4, ante. For the reasons discussed
15 therein, Petitioner has not established that Hernandez’s testimony was materially unreliable or
16 inconsistent with the testimony of Stratton and Trihey and the physical evidence found at the
17 Bocanegra crime scene, or that Hernandez testimony was given in exchange for an undisclosed
18 favorable (to Hernandez) plea deal.
19

Nor has Petitioner made an evidentiary showing of prejudice. For the reasons discussed

20 above, the state court could have determined there was no reasonable probability of a different
21 outcome from investigating Seeley and presenting him as a witness. Fundamentally, such a
22 defense was contrary to Petitioner’s stated desire to plead guilty to the Bocanegra murders,
23 (SPet. Ex. 520, p. 2), and “dying for his crimes but dying with a clear conscience.” (SPet. Ex.
24 700.)

Based on that desire, Petitioner waived jury trial and submitted guilt and special

25 circumstances phase on the preliminary hearing transcript and the testimony of additional
26 prosecution witnesses. See Sanchez, 12 Cal.4th at 23-30; CT 891-892; RT 108a-115a.) The
27 evidence does not suggest a reasonable probability that impeachment would have been
28
40

1 successful given Petitioner’s incriminating statements to detective Stratton and reporter Trihey
2 and the crime scene evidence corroborated by Hernandez’s testimony. (See claims 1-4, ante.)
3

The Court concludes that a fair-minded jurist could have found that Petitioner failed to

4 establish that defense counsel’s performance fell below an objective standard of reasonableness
5 and that, but for counsel’s unprofessional errors, the result of the proceeding would have been
6 different. Strickland, 466 U.S., at 687-694.
7

It does not appear that the state court rejection of the claim was contrary to, or an

8 unreasonable application of, clearly established federal law, as determined by the Supreme
9 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
10 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
11

Claim 8 is denied.

12

e.

13

In this claim, Petitioner alleges ineffective assistance of counsel by failure to investigate

Review of Claim 9

14 and present evidence about Joey, violating his Sixth, Eighth and Fourteenth Amendment rights.
15

The California Supreme Court summarily denied this claim (SPet. Claim F) raised in

16 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD.) As noted, in such a
17 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
18 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
19 arguments or theories supported or . . . could have supported, the state court’s decision; and then
20 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
21 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
22 added).
23

Petitioner, citing to the declaration of defense investigator Peninger, faults defense

24 counsel for not investigating and presenting evidence of Joey’s violent temper, threats and
25 assaults against his parents, and smoking PCP the night before the Bocanegra murders. (SHCP
26 127, ¶ 5.) Petitioner claims such evidence would have shown that a sudden quarrel and a fear of
27 Joey precipitated the killings rather than premeditation, deliberation and an intent to commit
28
41

1 robbery. He bases this claim upon facts allege in claims 1 through 4.
2

The Court is not persuaded. In June, 1988, prior to trial, defense investigator Peninger

3 interviewed Joey. (SHCP Ex. 127, ¶ 5.) Though Toton conceded he could have investigated
4 Joey further, and would have done so if a full defense had been mounted, (SHCP Ex. 137, ¶¶ 18,
5 21, 22), Petitioner waived a full defense.
6

Proffer of evidence that there was no robbery motive would not have changed the

7 outcome. The trial court’s found Petitioner was not guilty of robbery, and found not true the
8 robbery-murder special circumstance. (CT 906; RT 236-237.) Therefore no prejudice arose from
9 any failure to investigate and present evidence of Joey’s temper and prior assaultive behavior
10 relating to robbery-murder theory.
11

As discussed in claims 1-8, ante, there was sufficient evidence to convict Petitioner of

12 aiding and abetting first degree murder based upon a finding of premeditation and deliberation.
13 The state court could reasonably have concluded that, in the face of such substantial evidence of
14 guilt, it was not reasonably likely that a showing of Joey’s temper and prior assaultive conduct
15 would have raised a reasonable doubt that Petitioner aided and abetted the premeditated and
16 deliberate murders of Mr. Bocanegra and Mrs. Bocanegra.
17

Petitioner points out that counsel for Reyes, in Reyes’s separate proceeding, did

18 investigate Joey and subpoenaed trial witnesses based thereon. However, this alone does not
19 suggest that, on the record in this proceeding, Toton’s decision not to do so was an unreasonable
20 trial tactic. Especially so given the above noted substantial evidence of Petitioner’s guilt and
21 Reyes’s decision to plead guilty to three counts of first degree murder.
22

Petitioner has not made an evidentiary showing of prejudice, that there is a reasonable

23 probability of a different outcome from investigating and presenting evidence about Joey. The
24 state court could reasonably have found that, considering the record before it, evidence about
25 Joey would not have changed the result. Petitioner gave incriminating statements to detective
26 Stratton and reporter Trihey, corroborated by the crime scene evidence and Hernandez’s
27 testimony. (See claims 1-4, ante.) Here again, such a defense was contrary to Petitioner’s stated
28
42

1 desire to plead guilty to the Bocanegra murders, (SPet. Ex. 520, p. 2), and “dying for his crimes
2 but dying with a clear conscience.” (SPet. Ex. 700.) Petitioner waived jury trial and submitted
3 guilt and special circumstances phase on the preliminary hearing transcript and the testimony of
4 additional prosecution witnesses. See Sanchez, 12 Cal.4th at 23-30.
5

Accordingly, a fair-minded jurist could have found that Petitioner failed to establish that

6 defense counsel’s performance fell below an objective standard of reasonableness and that, but
7 for counsel’s unprofessional errors, the result of the proceeding would have been different.
8 Strickland, 466 U.S., at 687-694.
9

It does not appear that the state court rejection of the claim was contrary to, or an

10 unreasonable application of, clearly established federal law, as determined by the Supreme
11 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
12 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
13

Claim 9 is denied.

14

f.

15

Petitioner next claims ineffective assistance of counsel by failure to investigate and

Review of Claim 10

16 present physical evidence of Bocanegra murders, violating his Fifth, Sixth, Eighth and
17 Fourteenth Amendment rights.
18

The California Supreme Court summarily denied this claim (SPet. Claim G) raised in

19 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD.) As noted, in such a
20 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
21 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
22 arguments or theories supported or . . . could have supported, the state court’s decision; and then
23 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
24 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
25 added).
26

Petitioner alleges that supplemental evidence from criminologist Laskowski and coroner

27 Holloway would have shown three people, Reyes, Petitioner and Joey, were in the Bocanegra
28
43

1 house at the time of the murders and that the victims’ scalp wounds could have been inflicted by
2 different assailants using different implements.

(SHCP Exhs. 417, pp.1-2; 120, ¶¶ 6-7.)

3 Petitioner reasons this supplemental evidence would have rebutted the prosecution theory that
4 only Petitioner and Joey were present in the Bocanegra home at the time of the murders, and
5 would have caused defense counsel to take the matter to full trial on guilt, (SHCP Ex. 137, pp. 66 7) and thereby increased possibility of a negotiated plea more favorable than the conviction and
7 sentence handed down.
8

The Court finds this claim unavailing. The evidence in the state record is consistent with

9 Reyes, at some point, entering the Bocanegra home. Evidence of Reyes’s bloody hand print on
10 the front doorknob was admitted at Petitioner’s preliminary hearing. (CT 202-203.)
11

Petitioner is correct that criminologist Laskowski testified at preliminary hearing to only

12 two shoe tread patterns found at the Bocanegra crime scene, and that Laskowski (during his
13 subsequent preparation for the separate Reyes trial) identified a third shoe tread pattern in the
14 kitchen of the Bocanegra residence. However, Reyes admitted in this subsequent proceeding
15 that he served as lookout during the murders and entered the residence only afterwards to assist
16 Petitioner and Joey. (SResp. Ex. A., p. 3:1-11.)
17

Petitioner is also correct in noting that, while Dr. Holloway testified at the preliminary

18 hearing that the same type of implement inflicted consistent scalp wounds on both Mr.
19 Bocanegra and Mrs. Bocanegra, (CT 118-119), Holloway at the penalty phase stated that Mr.
20 Bocanegra’s scalp wounds were only “partially”, rather than “entirely” consistent with Mrs.
21 Bocanegra’s scalp wounds; and that it appeared different objects were used to inflict these scalp
22 wounds. (RT 2712-13, 2720-21, 2725.) However, Holloway qualified his preliminary hearing
23 testimony by noting that the scalp wounds on Mr. Bocanegra and Mrs. Bocanegra were not
24 necessarily inflicted by the same instrument. (CT 131-134.)
25

Holloway’s testimony, as qualified, did not then preclude the possibility that more than

26 one weapon and more than one perpetrator inflicted the wounds. Defense counsel Toton argued
27 as much, that different individuals, using different weapons, could have inflicted the scalp
28
44

1 wounds on Mr. Bocanegra and Mrs. Bocanegra. (RT 189-191.)
2

The Court finds that, for the reasons discussed in claims 1-9, the state court could

3 reasonably have found that there was sufficient evidence to convict Petitioner of aiding and
4 abetting first degree murder based upon a finding of premeditation and deliberation. In the face
5 of such substantial evidence, a further showing regarding physical evidence, that Reyes left a
6 bloody shoe print, and that two different weapons may have inflicted the scalp wounds, would
7 not have raised a reasonable doubt that Petitioner aided and abetted the premeditated and
8 deliberate murders of Mr. Bocanegra and Mrs. Bocanegra. Additionally, evidence of Petitioner’s
9 shoeprint in the kitchen undermines Seeley’s testimony that Petitioner watched the assault on
10 Mr. Bocanegra from the hallway. (SHCP, Ex. 419, pp. 6, 7, 22-23.)
11

For the reasons stated, Petitioner has not made an evidentiary showing of prejudice, i.e.,

12 that there is a reasonable probability of a different outcome from investigating physical evidence
13 of the Bocanegra murder scene. As noted, such a defense was contrary to Petitioner’s stated
14 desire to plead guilty to the Bocanegra murders (SPet. Ex. 520, p.2) and “dying for his crimes
15 but dying with a clear conscience.” (SPet. Ex. 700.) Petitioner waived jury trial and submitted
16 guilt and special circumstances phase on the preliminary hearing transcript and the testimony of
17 additional prosecution witnesses. See Sanchez, 12 Cal.4th at 23-30.
18

Accordingly, the Court is not convinced of a reasonable probability that supplemental

19 crime scene evidence would have prompted defense counsel to put on a further defense or would
20 have resulted in a more favorable disposition for Petitioner given his incriminating statements to
21 detective Stratton and reporter Trihey and the crime scene evidence corroborated by Hernandez’s
22 testimony. (See discussion of claims 1-9, ante.)
23

For the reasons stated, a fair-minded jurist could have found that Petitioner failed to

24 establish that defense counsel’s performance fell below an objective standard of reasonableness
25 and that, but for counsel’s unprofessional errors, the result of the proceeding would have been
26 different. Strickland, 466 U.S., at 687-694.
27

It does not appear that the state court rejection of the claim was contrary to, or an

28
45

1 unreasonable application of, clearly established federal law, as determined by the Supreme
2 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
3 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
4

Claim 10 is denied.

5

g.

6

Petitioner next claims ineffective assistance of counsel by failure to pursue plea

Review of Claim 11

7 negotiations, violating his Sixth, Eighth and Fourteenth Amendment rights.
8

The California Supreme Court summarily denied this claim (SPet. Claim H) raised in

9 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). As noted, in such a
10 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
11 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
12 arguments or theories supported or . . . could have supported, the state court’s decision; and then
13 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
14 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
15 added).
16

Petitioner alleges that defense counsel was deficient in failing to pursue plea negotiations

17 given that the evidence supported the prosecution’s theory that Joey was the actual killer of his
18 parents. (RT 122, 155-156.) Petitioner points out that Reyes, whom the prosecution viewed to
19 be of equal culpability, consummated a plea deal in his separate proceeding and avoided the
20 death penalty. (Id.)
21

This claim fails. The state court could reasonably have found defense counsel Toton was

22 not deficient in failing to pursue continuing plea negotiations. The record reflects that Toton
23 attempted to obtain a plea deal for Petitioner on May 10, 1988. But the prosecutor rejected the
24 plea deal when Petitioner refused to provide information of Joey’s involvement in the Bocanegra
25 murders, even though Petitioner had proposed to do just that in his plea bid. (SResp. Ex. B.)
26

Toton also made a pre-penalty phase overture for Petitioner to provide information

27 regarding Joey’s involvement in the Bocanegra murders in return for life without parole. Here
28
46

1 again, Petitioner ultimately refused to provide such information, ending any possible deal. Id.
2

Nothing reasonably suggests that persistence of counsel alone could have resulted in a

3 plea deal without Petitioner’s cooperation.
4

Prosecutor Ryals, who prosecuted both Petitioner and, in a separate proceeding, Reyes,

5 based her “decisions regarding plea bargain agreements . . . on [her] evaluations of the evidence,
6 the facts, and the circumstances of each case” and that “[t]he persistence and/or insistence of
7 defense counsel in seeking a plea bargain agreement on behalf of their client [was] not a factor . .
8 . .” (Id.) The Court notes that “[s]trict adherence to the Strickland standard” is “all the more
9 essential when reviewing the choices an attorney made at the plea bargain stage.” Premo, 562
10 U.S. at 124. “Plea bargains are the result of complex negotiations suffused with uncertainty, and
11 defense attorneys must make careful strategic choices in balancing opportunities and risks.” Id.
12

Additionally, for the reasons discussed in claims 1 through 4, ante, the evidence against

13 Petitioner was substantial. In the face of such evidence and Petitioner’s failure to support his
14 negotiated plea offers, it is not reasonably probable that continuing attempts by defense counsel
15 toward a negotiated plea would have been successful. See Burger v. Kemp, 483 U.S. 776, 78516 86 (1987) (no ineffective assistance claim where prosecutor refuses to engage in plea
17 bargaining).
18

Petitioner has not made an evidentiary showing of prejudice given the improbability of a

19 plea deal without his cooperation. Petitioner expressly stated his desire to plead guilty to the
20 Bocanegra murders (SPet. Ex. 520, p. 2) and “dying for his crimes but dying with a clear
21 conscience.” (SPet. Ex. 700; see Jones, 114 F.3d at 1012 (denying factual development where
22 improbable petitioner would have accepted plea offer). As noted, Petitioner waived jury trial and
23 submitted the guilt and special circumstances phase on the preliminary hearing transcript and the
24 testimony of additional prosecution witnesses. See Sanchez, 12 Cal.4th at 23-30. The evidence
25 does not suggest a reasonable probability that further plea negotiation would have resulted in a
26 more favorable disposition for Petitioner given his incriminating statements to detective Stratton
27 and reporter Trihey and the crime scene evidence corroborated by Hernandez’s testimony.
28
47

1

For the reasons stated, a fair-minded jurist could have found that Petitioner failed to

2 establish that defense counsel’s performance fell below an objective standard of reasonableness
3 and that, but for counsel’s unprofessional errors, the result of the proceeding would have been
4 different. Strickland, 466 U.S., at 687-694.
5

It does not appear that the state court rejection of the claim was contrary to, or an

6 unreasonable application of, clearly established federal law, as determined by the Supreme
7 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
8 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
9

Claim 11 is denied.

10

h.

11

Petitioner claims ineffective assistance of counsel by counsel’s failure to move to exclude

Review of Claim 12

12 jailhouse statements by Petitioner to the police implicating him in the Bocanegra homicides,
13 violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
14

The California Supreme Court summarily denied this claim (SPet. Claim I) raised in

15 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). As noted, in such a
16 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
17 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
18 arguments or theories supported or . . . could have supported, the state court’s decision; and then
19 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
20 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
21 added).
22

Petitioner supports this claim with facts alleged in claim 6, ante. He alleges that he

23 suffered organic brain damage, psychiatric disorders (post-traumatic stress disorder, depression,
24 and paranoia), and that he expected favorable treatment when, at the request of his then attorney,
25 Mr. Huffman, Petitioner waived Miranda rights and gave incriminating statements to detective
26 Stratton, (CT 75-78)

(Bocanegra murders), and detective Boggs

(CT 308-319) (Tatman

27 murder). Petitioner claims that his Miranda waiver was not intelligent and voluntary.
28
48

1

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court held that “the

2 prosecution may not use statements, whether exculpatory or inculpatory, stemming from
3 custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
4 effective to secure the privilege against self-incrimination.” As to the procedural safeguards to
5 be employed, “[p]rior to any questioning, the person must be warned that he has a right to remain
6 silent, that any statement he does make may be used as evidence against him, and that he has a
7 right to the presence of an attorney, either retained or appointed.” Id. Nevertheless, “‘[t]he
8 defendant may waive effectuation’ of the rights conveyed in the warnings ‘provided the waiver is
9 made voluntarily, knowingly and intelligently.’” Moran v. Burbine, 475 U.S. 412, 421 (1986)
10 (quoting Miranda, 384 U.S. at 444, 475).
11

This claim fails for the same reasons discussed in claim 6.

The state court could

12 reasonably have found that the evidence did not show that prior to, during, or after the murders
13 Petitioner suffered any material neurological and/or psychiatric impairment. The report of court14 appointed psychiatrist Matychowiak states that on November 13, 1987, [Petitioner] was “able to
15 discuss himself, his decisions and his reasoning for his decisions” and was “presently able to
16 understand the nature and purpose of the proceedings taken against him” and “to cooperate in a
17 rational manner with counsel in presenting a defense.” (SPet. Ex. 520, pp.5-6.)
18

Under Miranda, if a suspect indicates “at any time prior to or during questioning, that he

19 wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74 (emphasis
20 added). Petitioner does not point to evidence supporting coercive tactics by Stratton and Boggs
21 or showing Petitioner was promised any concession in his then pending charge of burglarizing
22 Joey’s residence.

See Colorado v. Connelly, 479 U.S. 157, 167 (1986) (confession not

23 involuntary absent coercive police activity). Petitioner apparently did not attempt to make any
24 evidentiary showing of police coercion.

The state court could have reasonably concluded

25 Petitioner’s Miranda waiver was not involuntary.
26

Additionally, it was Petitioner who initiated contact with the police, offering testimony

27 on the Bocanegra murders in exchange for “some type of consideration” in the burglary charge
28
49

1 against him. (SPet. Ex. 412; CT 76.)
2

The Court finds that, in the face of such lack of evidence, it is not reasonably probable

3 that a motion to exclude jailhouse statements based upon invalid waiver would have been
4 successful. See Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (counsel’s failure to make a
5 futile motion is not ineffective assistance). Even assuming impaired mental status, such alone is
6 not sufficient reason to suppress a confession. See Connelly, 479 U.S. at 167 (coercive police
7 conduct
8

necessary

to

find

confession

involuntary

under

Due

Process

Clause).

Petitioner has not made an evidentiary showing of prejudice, that there is a reasonable

9 probability of a different outcome had defense counsel moved to exclude jailhouse statements
10 based on invalid waiver. As discussed, such a defense was contrary to Petitioner’s stated desire
11 to plead guilty to the Bocanegra murders (SPet. Ex. 520, p.2) and “dying for his crimes but dying
12 with a clear conscience.” (SPet. Ex. 700.) Petitioner waived jury trial and submitted the guilt
13 and special circumstances phase on the preliminary hearing transcript and the testimony of
14 additional prosecution witnesses. See Sanchez, 12 Cal.4th at 23-30. The evidence does not
15 suggest a reasonable probability that a motion to exclude jailhouse statements would have
16 resulted in a more favorable disposition for Petitioner given his incriminating statements to
17 reporter Trihey and the crime scene evidence corroborated by Hernandez’s testimony. (See
18 claims 1-4, ante.)
19

For the reasons stated, a fair-minded jurist could have found that Petitioner failed to

20 establish that defense counsel’s performance fell below an objective standard of reasonableness
21 and that, but for counsel’s unprofessional errors, the result of the proceeding would have been
22 different. Strickland, 466 U.S., at 687-694.
23

It does not appear that the state court rejection of the claim was contrary to, or an

24 unreasonable application of, clearly established federal law, as determined by the Supreme
25 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
26 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
27

Claim 12 is denied.

28
50

1

i.

2

In this next claim, Petitioner alleges ineffective assistance of counsel by failure to seek

Review of Claim 13

3 sufficient continuance to adequately prepare for trial, violating his Sixth, Eighth and Fourteenth
4 Amendment rights.
5

The California Supreme Court summarily denied this claim (SPet. Claim J) raised in

6 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD.) As noted, in such a
7 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
8 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
9 arguments or theories supported or . . . could have supported, the state court’s decision; and then
10 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
11 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
12 added).
13

Petitioner supports this claim with facts alleged in claims 2, 4, and 6 through 10. He

14 alleges that, as of May 16, 1988, when a three-week pre-trail continuance was requested and
15 granted through June 27, 1988, defense counsel had done no guilt investigation, except for
16 consulting a serologist and obtaining a sanity evaluation, (SHCP, Ex. 127, ¶ 4), and had not done
17 any investigation for the penalty phase. (SHCP, Ex. 127, ¶¶ 4, 11.) He claims competent
18 counsel would have begun trial preparations sooner. (Id., ¶ 12.)
19

Petitioner’s trial began on July 7, 1988. He alleges that had defense counsel requested,

20 consistent with local practice, required a continuance longer than the three weeks, there is a
21 reasonable probability that a plea bargain could have been negotiated, or a full trial on guilt and
22 special circumstances would have been sought.
23

For the reasons discussed in claims 1-12, the evidence does not support a reasonable

24 possibility that Petitioner would have received a more favorable disposition even with a longer
25 continuance. Petitioner relies on defense investigator Peninger’s declaration regarding the extent
26 to which she was aware of the defense investigation and her view that further investigation
27 should have been done. (SPet. Ex. 127, pp. 1-2.) Even if evidence, the Peninger declaration
28
51

1 does not demonstrate the actual extent and tactical appropriateness of defense counsel’s trial
2 preparations.
3

The record suggests that defense counsel timely began trial preparations, retaining

4 defense expert(s) as early as November 1987. (RT [5/16/88] 3-4.) Petitioner concedes defense
5 counsel retained serology and psychological experts prior to the request for continuance. The
6 continuance request was partially opposed by the prosecution, (RT [5/16/88] 5-6; CT 713-714),
7 suggesting a further continuance was unlikely.
8

There state court could reasonably have determined that Petitioner did not want or need a

9 continuance. Petitioner initially refused to waive time for beginning trial, stating his intention to
10 enter a guilty plea. (RT [5/16//88] 7.) Petitioner agreed to waive time only after discussions with
11 counsel. (RT [5/16/88] 7-8.) Petitioner continued to express his desire to plead guilty to the
12 Bocanegra murders. (SPet. Exhs. 520, p.2; 700.)
13

On July 11, 1988, Toton requested submission of guilt and special circumstance phase

14 on the preliminary hearing transcript. Defense counsel Frank had no expressed need for a further
15 continuance to prepare his penalty phase case. Frank stated his preparations would be complete
16 by July 25, 1988. (RT [5/16/88] 6.) The penalty phase did not start until September 21, 1988,
17 almost two month later. (CT 949; RT 2583.) It does not reasonably appear the defense needed
18 and would have been granted further pre-trial continuance. “A fair assessment of attorney
19 performance requires that every effort be made to eliminate the distorting effects of hindsight . . .
20 and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689.
21

For the reasons stated, a fair-minded jurist could have reasonably have determined that,

22 based on the evidence, a longer continuance would not have resulted in a more favorable
23 disposition for Petitioner. His incriminating statements to detective Stratton and reporter Trihey
24 and the crime scene evidence that was corroborated by Hernandez’s testimony reasonably
25 suggest otherwise. (See claims 1-12, ante.)
26

Petitioner has failed to establish that defense counsel’s performance fell below an

27 objective standard of reasonableness and that, but for counsel’s unprofessional errors, the result
28
52

1 of the proceeding would have been different. Strickland, 466 U.S., at 687-694.
2

It does not appear that the state court rejection of the claim was contrary to, or an

3 unreasonable application of, clearly established federal law, as determined by the Supreme
4 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
5 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
6

Claim 13 is denied.

7

j.

8

Petitioner next claims ineffective assistance of counsel by the decision to waive jury trial,

Review of Claim 14

9 confrontation and presentation of a defense, violating his Fifth, Sixth, Eighth and Fourteenth
10 Amendment rights.
11

The California Supreme Court summarily denied this claim (SPet. Claim K) raised in

12 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD.)
13

The state supreme court, on direct appeal, addressed the merits of the validity of

14 submission on the Preliminary Hearing Transcript as follow:
15
16
17

[Petitioner’s] chief guilt phase trial counsel, Toton, informed the court that the
submission proposal was a compromise made by defendant at Toton's request.
Defendant originally had wanted to plead guilty to the capital charges, but Toton
would not consent to such a plea, believing that a guilty plea would amount to
ineffective assistance of counsel . . . . [Citation]

18
19 Sanchez, 12 Cal.4th at 24.
20

Defendant repeatedly acknowledged that he was waiving his constitutional rights and that

21 his decision was entered “freely and voluntarily.” Id., at 25. Once the waivers were taken, the
22 following exchange occurred between the trial court and Petitioner:
23
24
25
26
27
28

“The Court: I take it that . . . Mr. Frank and Mr. Toton have talked to you at some
length about the waivers?
“The Defendant: Yes, sir.
“The Court: Do you feel you understood them?
“The Defendant: Yes, sir, I believe I do.
“The Court: And you have had some time to think about it, at least since about
10:30 this morning, and they talked to you later, I take it?
“The Defendant: Yes, sir.
“The Court: And you have thought about it?
53

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

“The Defendant: Yes, sir.
“The Court: So far as you are losing your right to confront witnesses, those
witnesses whose testimony will be presented to the court through the preliminary
examination, you won't get a chance to cross-examine them in this court. You
understand that?
“Defendant: Yes sir.
“The Court: And you are giving that right up then?
“The Defendant: Yes, sir.
“The Court: Now, so far as the witnesses called . . . to augment the People's case
and/or in your behalf, the live witnesses called in this case, you will have the right
to confrontation and you understand that?
“The Defendant: Yes, sir.
“The Court: I have to tell you that some of the cases in the state of California say
that when you present a case to the judge to determine the guilt or innocence on
the basis of the preliminary hearing transcript, that's sometimes called a slow
guilty plea.
“The Defendant: Yes, sir.
“The Court: I don't know whether you have heard that language before, but it's
used in the cases.
“The Defendant: Yes, sir.
“The Court: And I want you to be aware of that. I am not telling you how I am
going to decide this case, but there is an aura of that in the cases and you should
be aware of that fact.
“The Defendant: Yes, sir.
“The Court: And do you understand that?
“The Defendant: Yes, sir.
“The Court: And you are willing to give up your right to a trial by jury both as to
the guilt of the two homicides alleged and of the other enhancements and the
special circumstances; is that right?
“The Defendant: Yes.
“The Court: And you know you have the right, and we are ready to give you a
jury on all those issues.
“The Defendant: Yes, your Honor, I understand all that.
“The Court: And you nonetheless give it up?
“The Defendant: Yes, sir.”

19 Id., at 25-26.
20

The trial court later confirmed the waivers:

21
22
23
24
25
26

“The Court: Are you satisfied with your decision?
“The Defendant: Yes, sir, I am very confident.
“The Court: Because you know we have got a record of everything here. It's going
to be kind of hard to tell somebody else, gee, I didn't think about it. The judge
coerced me. The [d]istrict [a]ttorney growled at me. My lawyers kicked me
around. You know, it's going to be kind of hard to say that after you have been
very candid with us here. Are you satisfied with that?
“The Defendant: Yes, sir, I am very satisfied.
“The Court: You seem satisfied. I believe you are satisfied. I will make that kind
of a finding.”

27
28
54

1 Id., at 27.
2

Petitioner confirmed his intent to waive his jury trial and confrontation rights the

3 following morning, but no mention was made by the court or counsel of defendant's right against
4 self-incrimination.

Even so, the California Supreme Court went on to find Petitioner’s

5 submission on the preliminary hearing transcripts was not a “slow (guilty) plea” that would have
6 required an on the record waiver of the right against self-incrimination, as follows:
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Defense counsel Toton conducted substantial cross-examination of the
prosecution witnesses during the preliminary hearing. Toton also called
prosecution witnesses Hernandez and Detective Stratton to testify for the defense,
and questioned Hernandez about whether he had agreed to testify against
defendant with the intent of making a deal in his own case.
In addition, following the close of the prosecution's guilt phase presentation,
Toton renewed his motions to strike portions of the trial testimony of Maria
Rodriguez, Detective Boggs, and William Freeman (the patrolman who seized
two screwdrivers from defendant that had been stolen from the Bocanegra
residence), and then moved for a judgment of acquittal of all the charges.
In arguing the motion for acquittal, Toton asserted there was insufficient evidence
of defendant's guilt of the robbery and murder charges, and that the People failed
to charge properly the special circumstance allegations. In addition, Toton
asserted that no physical evidence linked defendant to the Bocanegra murders. He
argued that the prosecution presented no evidence of premeditation in those
murders, and that defendant's hypothetical questions to Detective Stratton should
not be used as evidence of murder. Toton also pointed out that defendant's
incriminating statements to newsman Trihey implied knowledge of the crime, but
not intent to kill, that there was no evidence that defendant robbed the Bocanegras
or that defendant had the specific intent to kill either the Bocanegras or Tatman.
Toton's closing argument following the guilt phase was equally extensive. He
asserted there was insufficient evidence, as a matter of law, to prove beyond a
reasonable doubt that defendant committed the charged robberies and the
Bocanegra murders because the testimony of Hernandez and Trihey was not
credible. At best, he argued, the evidence in the Bocanegra murders supported a
verdict of voluntary manslaughter. He also asserted that the prosecution had failed
to prove the specific intent to kill necessary to support the special circumstance
allegations.
It therefore appears that defense counsel's cross-examination was substantial, and
that he argued constantly that the facts as presented at the preliminary hearing
should be viewed as not supporting first degree murder convictions. These facts
support the People's assertion that defendant's submission on the preliminary
hearing transcripts for the guilt and special circumstance phases of the trial was
not tantamount to a guilty plea. [Citation]
For submissions not tantamount to a guilty plea, a trial court's failure to advise the
defendant of his right against self-incrimination is implicated only to the extent
55

defendant surrendered the right. [Citation] Through the submission stipulated to
here, defendant never surrendered his self-incrimination privilege because he
chose not to testify during the guilt phase proceedings. Because defendant never
surrendered his right against self-incrimination, there was no requirement of a
personal, on-the-record waiver. [Citation]

1
2
3

Id., at 29-30.
4
5

The state supreme court also concluded there was no requirement that Petitioner be

6 advised of ramifications of submission and waiver and the probability of conviction in light of
7 defendant's reservation of his right to present additional evidence and to contest his alleged guilt
8 in argument to the court. That is, a defendant must be advised of the probability that his
9 submission will result in a conviction of the offenses only “[i]f a defendant does not reserve the
10 right to present additional evidence and does not advise the court that he will contest his guilt in
11 argument to the court . . . .” Bunnell, 13 Cal.3d 592, 605 (1975).
12

Petitioner contends that reasonably competent counsel defending a capital case would not

13 have submitted without a full trial. He supports this claim with facts alleged in claims 2, 4 and 6
14 through 10. He reiterates his above claims that Toton and Frank did not conduct sufficient trial
15 investigation and preparation. He claims Toton’s agreement to allow additional evidence upon
16 submission negated Toton’s theory that submission on the preliminary hearing would limit
17 damaging evidence. (See SHCP Ex. 137, ¶¶ 14-16.) He claims that Frank had reservations
18 about waiving full defense, but did not express them to the trial court. (SHCP Ex. 113, ¶ ¶ 1319 19.)

However, this Court finds that, for the reasons and based on the evidence discussed in

20 claims 1-13, ante, the state court could reasonably have found that defense counsel were not
21 deficient in preparing for trial and that the trial waiver was not necessarily inform on this basis..
22

Petitioner alleges mental impairments prevented him from knowingly, voluntarily, and

23 intelligently entering the waiver with complete knowledge of the relevant circumstances and
24 likely consequences.

See Brady v. United States, 397 U.S. 742, 747–48 and n.4 (1970).

25 However, the mental defense claim is unavailing for reasons discussed in claim 6. Petitioner
26 agreed to submit the case following “several long discussions” with Toton, (SPet. Ex. 137, p.5)
27 and in compromise of Petitioner’s expressed desire to plead guilty (RT [5/16/88] 7), and Toton’s
28
56

1 refusal to consent to a guilty plea. The trial judge discussed the submission with Petitioner in
2 some detail, including how it might impact his case (CT 889, 891-892; RT – 65a-71a, 85a-89a,
3 98a-115a.) and the waiver of any conflict of interest Toton might have had relating to his
4 debarment proceedings. (RT [7/27/88] 6.) Petitioner waived his trial rights on the record. (RT
5 107a-111a.) The prosecution also examined him regarding the waivers. (RT 108a-114a.) It was
6 not unreasonable for the state court to conclude that Petitioner understood and freely entered the
7 waivers.
8

Petitioner also fails to make an evidentiary showing of prejudice. He had expressed his

9 intention to enter a guilty plea (RT [5/16/88] 7) and waive jury trial. (RT [7/27/88] 6.) Defense
10 counsel Frank’s preparation of penalty phase defense was nearly complete at time of the trial
11 waiver and was not adversely affected. (SPet. Ex. 113, pp. 5-7.) Defense counsel could have
12 reasonably believed that, as a matter of trial strategy, submission on the preliminary hearing
13 transcripts would limit damaging evidence, (SPet. Exhs. 137, pp. 4-5; 113, pp.4-5), keeping
14 “some of the blood and gore of the homicides away from the penalty jury.” (SPet. Ex. 113, ¶ 16.)
15 Especially so given Toton’s concern that Reyes might testify against Petitioner, and Toton’s
16 belief the aider and abettor theory might be more favorably decided by the court rather than a
17 jury. (SPet. Ex. 137, p. 5.)
18

In sum, the evidentiary record does not support a reasonable possibility that Petitioner

19 would have received a more favorable disposition had the matter gone to jury trial at the guilt
20 and special circumstance phase. Had Petitioner testified before a jury as to lack of knowledge
21 and intent in aiding and abetting the murders, he likely would have been impeached for reasons
22 discussed in claims 1-13.
23

For the reasons stated, Petitioner has not established that defense counsel’s performance

24 fell below an objective standard of reasonableness and that, but for counsel’s unprofessional
25 errors, the result of the proceeding would have been different. Strickland, 466 U.S., at 687-694.
26

It does not appear that the state court rejection of the claim was contrary to, or an

27 unreasonable application of, clearly established federal law, as determined by the Supreme
28
57

1 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
2 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
3

Claim 14 is denied.

4

k.

5

Petitioner next claims ineffective assistance of counsel by failing to cross-examine

Review of Claim 15

6 newspaper report Trihey, violating Petitioner’s Fifth, Sixth, Eighth and Fourteenth Amendment
7 rights.
8

The California Supreme Court summarily denied this claim (SPet. Claim L) as it was

9 raised in Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD.) That court
10 also rejected on appeal Petitioner’s contention that Toton’s failure to cross-examine Trihey
11 before closing argument denied him the effective assistance of counsel, finding that:
12
13
14
15
16
17
18

Toton convinced the court during his closing argument that Trihey's testimony
should not be given substantial weight; his decision not to cross-examine Trihey
as to the contents of the published material was sound strategy, given the nature
of defendant's alleged contradictory statements. Defendant does not establish that
cross-examination would have revealed any new information, or that any
additional information about the interviews would have influenced the court's
judgment. Hence, we cannot find counsel's failure to cross-examination Trihey to
be deficient. In any event, given the fact that the court dismissed the robbery
charges against defendant, and found not true the robbery-murder specialcircumstance allegation, we discern no prejudice to defendant based on counsel's
performance. [Citation]

19 Sanchez, 12 Cal.4th 59.
20

Petitioner supports this claim with facts alleged in claims 2 and 4. He alleges that had

21 Toton cross-examined Trihey on the published newspaper articles he could have called into
22 question the version of events offered by Trihey and Hernandez, and supported Petitioner’s
23 mental defenses. (Pet. ¶ 306-314.)
24

Strickland provides that “strategic choices made after thorough investigation of law and

25 facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690-91.
26 “[S]trategic choices made after less than complete investigation are reasonable precisely to the
27 extent that reasonable professional judgments support the limitations on investigation.” Id.
28
58

1

Petitioner argues cross-examination regarding the contents of the newspaper articles,

2 cross-examination Toton refused under conditions imposed by the Court (limiting such to the
3 printed articles – see RT 57-59) would have been beneficial, but he does not demonstrate how or
4 why this is so given his contradictory statements of the crimes and his involvement.
5

Trihey testified at the guilt and special circumstance phase that during the course of five

6 interviews, Petitioner stated he was “a triple murderer” and that the victims were killed for their
7 “Social Security checks.” (RT 17-18). These statements were included in the published articles.
8 (Id.) Based on the record before it, the state court could reasonably have found that any claimed
9 advantage that would have resulted from cross-examination of Trihey was speculative.

It

10 follows that the decision of defense counsel not to cross-examine Trihey could be seen as neither
11 unreasonable nor prejudicial.
12

The trial judge limited any cross-examination to the confession and information

13 published by Trihey in the newspaper.

Unable to impeach Trihey, defense counsel could

14 reasonably have concluded that cross-examination might highlight inconsistencies in Petitioner’s
15 versions of how the murders occurred, bolstering both the direct examination and the damaging
16 testimony of Hernandez. Moreover, defense counsel Toton, during closing argument, argued
17 effectively to limit the impact of Trihey’s testimony regarding robbery, (RT 175-183), and the
18 robbery-murder special circumstance. Petitioner cannot show prejudice where he fails to state
19 with specificity the nature of the proposed testimony. Alcala v. Woodford, 334 F.3d 862, 872-73
20 (9th Cir. 2003); see also Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (mere speculation
21 of possible helpful information from potential witnesses is not sufficient to show ineffective
22 assistance of counsel).
23

Additionally, for the reasons discussed in claims 1 through 4 and 6, the evidence does not

24 support a reasonable possibility that Petitioner would have received a more favorable disposition
25 on sufficiency of the evidence, actual innocence and mental states defenses by cross-examining
26 Trihey. Instead, defense counsel could have reasonably believed that cross-examining Trihey as
27 to mental state defenses, unsupported in the record, might serve only to reinforce the published
28
59

1 confession.
2

Petitioner was not prejudiced by failing to Toton’s failure to cross-examine Trihey. The

3 trial court’s guilt phase verdicts, rejecting robbery and robbery special circumstance counts in the
4 Bocanegra homicides, reflect its acceptance of Toton’s argument that Trihey’s testimony should
5 not be given substantial weight. (RT 235-236.) Trihey’s testimony likely would not have
6 changed the outcome.
7

Accordingly, the Court finds the state court rejection of the claim was neither contrary to,

8 or an unreasonable application of, clearly established federal law, as determined by the Supreme
9 Court, nor based on an unreasonable determination of the facts in light of the evidence presented
10 in the state court proceeding, viewed most favoring the prosecution. See 28 U.S.C. § 2254(d).
11

Claim 15 is denied.

12

l.

13

In his next claim, Petitioner alleges ineffective assistance of counsel by failure to argue

Review of Claim 16

14 for second degree Murder in Bocanegra homicides, violating his Fifth, Sixth, Eighth and
15 Fourteenth Amendment rights.
16

The California Supreme Court summarily denied this claim (SPet. Claim M) raised in

17 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). As noted, in such a
18 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
19 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
20 arguments or theories supported or . . . could have supported, the state court’s decision; and then
21 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
22 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
23 added).
24

Petitioner claims that Toton should have argued for lesser included second degree murder

25 because evidence he premeditated the murders was insufficient. (RT 168-196.) He supports this
26 claim with facts alleged in claims 2 and 4, ante. However, Petitioner has not established actual
27 innocence, or that the evidence was insufficient to support the premeditated and deliberate
28
60

1 murder of the Bocanegras. (See claims 1 through 4, ante.) Second degree murder was in any
2 event a lesser included option, necessarily rejected by the trial court in its finding of first degree
3 murder. (RT 235-236.)
4

The Court finds it was not unreasonable for Toton to argue voluntary manslaughter (RT

5 168-196), foregoing argument of second degree murder, given his theory that a sudden heated
6 argument between Mr. Bocanegra and Joey led to the killings. (CT 77-78, 479, 487, 500, 590;
7 RT 97, 132-33, 188-193, 195-96.)

Given the support in the evidentiary record for the

8 manslaughter argument, the state court could reasonably have determined Toton’s failure to
9 argue for second degree murder was not ineffective assistance.
10

The state court could reasonably have determined that Petitioner was not prejudiced by

11 Toton’s failure to argue for second degree murder. Though Petitioner contends in this claim that
12 he was willing to accept any non-capital conviction, this position is not consistent with his stated
13 desire to plead guilty to the Bocanegra murders. (SPet. Ex. 520, p. 2; 700.) Petitioner waived
14 jury trial and submitted guilt and special circumstances phase on the preliminary hearing
15 transcript and the testimony of additional prosecution witnesses. See Sanchez, 12 Cal.4th at 2316 30. The evidence does not suggest a reasonable probability that argument for second degree
17 murder would have resulted in a more favorable disposition for Petitioner given the substantial
18 evidence against him, his incriminating statements to detective Stratton and reporter Trihey and
19 the crime scene evidence corroborated by Hernandez’s testimony. (See claims 1-10.)
20

The Court notes that Toton’s motion for acquittal based upon sufficiency of the evidence

21 was denied by the trial court.

(RT 140-141.)

Toton’s argument in closing, revisiting

22 insufficiency of the evidence, was also unsuccessful.
23

Accordingly, a fair-minded jurist could have found that Petitioner failed to establish that

24 defense counsel’s performance fell below an objective standard of reasonableness and that, but
25 for counsel’s unprofessional errors, the result of the proceeding would have been different.
26 Strickland, 466 U.S., at 687-694.
27

It does not appear that the state court rejection of the claim was contrary to, or an

28
61

1 unreasonable application of, clearly established federal law, as determined by the Supreme
2 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
3 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
4

Claim 16 is denied.

5

m.

6

Petitioner next claims ineffective assistance of counsel by failure to object to improper

Review of Claim 17

7 prosecution closing at the guilt and special circumstances phase, violating his Fifth, Sixth, Eighth
8 and Fourteenth Amendment rights.
9

The California Supreme Court summarily denied this claim (SPet. Claim N) raised in

10 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD.) As noted, in such a
11 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
12 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
13 arguments or theories supported or . . . could have supported, the state court’s decision; and then
14 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
15 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
16 added).
17

Petitioner alleges that the prosecutor’s argument, that there were only two people, other

18 than the Bocanegras, present at the time of the killings, was false and misleading. Petitioner
19 states that the prosecution presented evidence of Reyes’s bloody palm print on the door knob
20 inside the Bocanegra home. (CT 202-203.) Yet Toton failed to object because he wrongly
21 assessed the evidence. (SHCP Ex. 137, ¶ 30.) Defense counsel Frank did not object because he
22 was responsible only for the penalty phase. (SHCP Ex. 113, ¶ 27.)
23

This Court is not convinced. Physical evidence that Reyes was in the Bocanegra home is

24 not inconsistent with the evidence that Reyes served as a lookout and entered the Bocanegra
25 home after the homicides to assist Joey and Petitioner. (SResp. Ex. A, pp.3-4; see claim 10.)
26 The prosecution’s argument then was not inconsistent with the evidence.

Toton could

27 reasonably have concluded that the prosecution’s “two person” argument was not objectionable
28
62

1 as false or misleading based on the record. (SPet. Ex. 137, pp. 9-10.)
2

Moreover, Petitioner did not challenge the evidence that he struck Mr. Bocanegra with a

3 bar (CT 481-82; RT 169, 184-85, 188, 196, 207), and that he grabbed Mrs. Bocanegra and told
4 Joey to “shut her up”. (CT 482-483, 504; RT 190-91.) Counsel is not ineffective for failing to
5 make an objection that would be overruled. See United States v. Steele, 785 F.2d 743, 750 (9th
6 Cir. 1986). “In any ineffectiveness case, a particular decision not to investigate must be directly
7 assessed for reasonableness in all the circumstances, applying a heavy measure of deference to
8 counsel's judgments.” Strickland, at 691.
9

Petitioner does not demonstrate by evidence in the record that Toton failed to reasonably

10 investigate these matters. “[S]trategic choices made after thorough investigation of law and facts
11 relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S at 690-91.
12 Even if he had, “strategic choices made after less than complete investigation are reasonable
13 precisely to the extent that reasonable professional judgments support the limitations on
14 investigation.” Id. Toton could reasonably have concluded further investigation would have
15 been futile given the weight of the evidence against Petitioner.
16

Toton could have considered the prosecution argument, that there was no evidence

17 anyone other than Joey and Petitioner committed the Bocanegra homicides, to be consistent with
18 the evidence and not unreasonable. Moreover, Toton did argue an inference from the evidence,
19 that Mrs. Bocanegra’s scalp wounds were inflicted by someone other than Petitioner, (RT 191),
20 and that there was insufficient evidence to show Petitioner inflicted the wounds.
21

There is no sufficient showing that Petitioner was prejudiced by Toton’s alleged failure to

22 object to the prosecutor’s guilt and special circumstance closing argument that there were only
23 two perpetrators in the Bocanegra homicides. The evidentiary record contains substantial
24 evidence against Petitioner, his incriminating statements to detective Stratton and reporter Trihey
25 and the crime scene evidence corroborated by Hernandez’s testimony. (See claims 1-10.)
26

For the reasons stated, a fair-minded jurist could have found that Petitioner failed to

27 establish that defense counsel’s performance fell below an objective standard of reasonableness
28
63

1 and that, but for counsel’s unprofessional errors, the result of the proceeding would have been
2 different. Strickland, 466 U.S., at 687-694.
3

It does not appear that the state court rejection of the claim was contrary to, or an

4 unreasonable application of, clearly established federal law, as determined by the Supreme
5 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
6 light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
7

Claim 17 is denied.

8

n.

9

Petitioner next claims ineffective assistance of counsel by cumulative ineffectiveness

Review of Claim 18

10 during the guilt phase violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
11

The California Supreme Court summarily denied this claim (SPet. Claim O) raised in

12 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). As noted, in such a
13 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
14 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
15 arguments or theories supported or . . . could have supported, the state court’s decision; and then
16 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
17 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
18 added).
19

Petitioner claims that Toton’s failure to seek a continuance to conduct guilt phase

20 investigation, and failure to present complete defenses based on physical evidence, mental state,
21 and testimony from Joey, Seeley, and Hernandez had the cumulative effect of denying Petitioner
22 a full trial at the guilt and special circumstance phase and possibility of a plea bargain. Petitioner
23 bases this claim on facts alleged in claims 2, 4, and 6 through 17, ante.
24

“The Supreme Court has clearly established that the combined effect of multiple trial

25 errors may give rise to a due process violation if it renders a trial fundamentally unfair, even
26 where each error considered individually would not require reversal.” Parle v. Runnels, 505 F.3d
27 922, 928 (9th Cir. 2007) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
28
64

1

The cumulative effect of trial court errors can be a basis for habeas relief in certain

2 circumstances:
3
4
5
6
7

Although individual errors looked at separately may not rise to the level of
reversible error, their cumulative effect may nevertheless be so prejudicial as to
require reversal. United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir.
1993). However, the fact that errors have been committed during a trial does not
mean that reversal is required. [W]hile a defendant is entitled to a fair trial, [she]
is not entitled to a perfect trial, for there are no perfect trials. United States v.
Payne, 944 F.2d 1458, 1477 (9th Cir. 1991).
U.S. v. de Cruz, 82, F.3d 856, 868 (9th Cir. 1996).

8
9

Here, there is not a need to employ cumulative error analysis because review has detected

10 no error, for the reasons discussed in claims 2, 4 and 6-17. Petitioner has not established that the
11 evidence before the trial court showed defense counsel Toton was ineffective. These claims are
12 insubstantial whether considered singlely or cumulatively. See United States v. Karterman, 60
13 F.3d 576, 580 (9th Cir.1995) (“Because each error is, at best, marginal, we cannot conclude that
14 their cumulative effect was ‘so prejudicial’ to [defendant] that reversal is warranted.”); see also
15 Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1995); Detrich v. Ryan, 740 F.3d 1237, 1273 (9th
16 Cir. 2013). Cumulative error analysis applies where there are two or more actual errors. It does
17 not apply . . . to the cumulative effect of non-errors.” Moore v. Gibson, 195 F.3d 1152, 1175
18 (10th Cir. 1999) (quoting Castro v. Ward, 138 F.3d 810, 832 (10th Cir. 1998)).
19

Accordingly, Petitioner has not established that defense counsel’s cumulative

20 performance fell below an objective standard of reasonableness and that, but for counsel's
21 unprofessional errors, the result of the proceeding would have been different. Strickland, 466
22 U.S., at 687-694. Petitioner’s reliance on Cargle v. Mullin, 317 F.3d 1196, 1210 (10th Cir.
23 2003), a case readily distinguished on the facts of ineffective assistance, is misplaced.
24

Respondent contends this claim is not cognizable because it creates and retroactively

25 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
26 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
27 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
28
65

1

Claim 18 is denied.

2

5.

3

In claims 19 through 27, Petitioner alleges that during the guilt and special circumstance

Denial Of Effective Assistance Of Counsel – Claims 19-27

4 phase he was denied effective assistance of defense counsel.
5

a.

6

A breakdown in the attorney-client relationship can result in a denial of the right to

Clearly Established Law

7 effective assistance of counsel. Frazer v. United States, 18 F.3d 778, 782-83, 785 (9th Cir.
8 1994); see also Brown v. Craven, 424 F.2d. 1166, 1169-70 (9th Cir. 1970) (trial court’s failure to
9 conduct inquiry into irreconcilable conflict arising from the client’s refusal to communicate or
10 cooperate with counsel resulted in denial of effective assistance of counsel).
11

The Sixth Amendment requires an appropriate, on the record, inquiry into the grounds for

12 such a motion, and that the matter be resolved on the merits before the case goes forward. Schell
13 v. Witek, 218 F.3d 1017, 1025, citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)).
14 The overarching constitutional question is whether the attorney-client conflict has become so
15 great that “it resulted in a total lack of communication or other significant impediment that
16 resulted in turn in an attorney-client relationship that fell short of that required by the Sixth
17 Amendment.” Id., at 1026.
18

b.

19

Petitioner claims trial court error by denial, without adequate investigation, of defense

Review of Claim 19

20 counsel’s motions to withdraw depriving him of effective assistance of counsel, violating his
21 Sixth, Eighth and Fourteenth Amendment rights.
22

The state supreme court considered this claim on appeal and found that the trial court did

23 not abuse its discretion in denying defense counsel’s two motions to withdraw, as follows:
24
25
26
27
28

[I]mplicit in the court's denial of the motions is the finding that defendant's
discussion of his case with the media was not an indication of his distrust or
dissatisfaction with counsel. Rather, the conduct was merely indicative of his
unwavering desire to admit culpability and to atone for his crimes. Indeed,
allowing counsel to withdraw would not have alleviated any prejudice to
defendant caused by his contact with the press, nor does the record indicate that
denying the motion to withdraw influenced defendant's desire to submit the guilt
66

1
2
3
4
5

issue on the basis of the preliminary hearing transcripts. Even though counsel
were dissatisfied with defendant's failure to heed their advice and not discuss the
case with the media, the record shows defendant's right to counsel was not
jeopardized by counsel's continuing representation. Thus, because defendant does
not show that any disagreement with counsel resulted in a complete breakdown in
the attorney-client relationship that jeopardized his right to a fair trial, we
conclude the trial court did not abuse its discretion in denying counsels' motions
to withdraw. [Citation] In reviewing denial of motion to substitute attorneys, the
court “focuses on the ruling itself and the record on which it is made. It does not
look to subsequent matters . . . .”]

6 Sanchez, 12 Cal.4th at 37.
7

Petitioner alleges that his out-of-court actions revealed a complete breakdown in his

8 relationship with counsel and that his lack of trust and confidence was not unfounded as counsel
9 ignored his serious mental disturbances which should have been obvious. Petitioner

notified

10 defense counsel of his intent to speak to the media on February 2, 1988. Later that day counsel
11 met with Petitioner and advised against contacting the media.

After the meeting, counsel

12 discovered Petitioner had given an interview to Michael Trihey, reporter for the Bakersfield
13 Californian newspaper, earlier that day. That interview led to a front-page story published on
14 February 12, 1988.
15

On February 16, 1988, defense counsel filed a motion to withdraw, asserting Petitioner

16 had indicated he did not trust counsel and actively mislead them by failing to inform them he had
17 already given an interview to Trihey, Petitioner’s refusal to cooperate rendered his representation
18 virtually impossible, and their attorney-client relationship was so tainted counsel’s efforts would
19 be of no assistance. However, the Court denied the motion because it found no breakdown in the
20 attorney-client relationship and that any prejudice created by Petitioner’s contacting the press
21 against counsel’s advice would not be ameliorated by counsel’s withdrawal. On March 7, 1988
22 the trial court, before denying the initial motion to withdraw, questioned Petitioner about
23 whether he trusted defense counsel. Petitioner responded that “[he was] willing to stay with
24 them.” (CT 690, 707-708; RT [3/7/88] 4-5.)
25

On April 25, 1988, another article by Trihey was published in the Bakersfield Californian

26 that asserted that Petitioner said he was a triple killer who deserved to die and described
27 Petitioner’s legal predicament of not being able to plead guilty and accept the death penalty
28
67

1 without his counsel’s consent.
2

On May 2, 1988, counsel again moved to withdraw, asserting continued representation

3 would require unethical conduct by counsel. The trial judge met with defense counsel and
4 Petitioner regarding counsel’s renewed motions to withdraw. The court denied Toton’s motion
5 on the merits on that day. (CT 707; RT [5/6/88] 3.) Four days later the Court denied Frank’s
6 motion due to “nearness of the trial date.” (CT 708; RT [5/10/88] 5.) The trial court had
7 previously noted that substitution of counsel would not alleviate any prejudice to the case already
8 resulting from Petitioner’s discussions with report Trihey. (RT [3/7/88] 5.) On June 22, 1988,
9 the Court of Appeal of the State of California, Fifth Appellate District, denied Petitioner’s
10 petition for writ of mandate and/or prohibition, seeking an order directing the trial court to grant
11 counsel’s motions to withdraw. (CT 768.)
12

Here, the state court could reasonably have found that any disagreement with counsel was

13 not so great that it resulted in a complete breakdown in the attorney-client relationship
14 jeopardizing his right to effective representation and a fair trial. (CT 690; RT [3/7/88] 4-5.) The
15 contention of defense counsel in their initial (February 1988) motion that the newspaper article
16 reflected a lack of trust and cooperation (RT March 7, 1988 at pp. 3-4; CT 685-686) was
17 countered by Petitioner during his colloquy with the trial court. Petitioner stated to the trial judge
18 that, “[t]here is a little bit of mistrust there, but you know, I’m willing to stay with them, if they
19 want out, you know, I won’t stop them.” (RT March 7, 1988 at pp. 4-5; CT 685-686.)
20

Petitioner’s assertion that the trial court erred by treating the newspaper interview as the

21 sole issue, failing to investigate and address the more pervasive problem of mistrust, is
22 unavailing. Toton’s February 1988 withdrawal motion, which raised a lack of trust and
23 confidence as a result of the newspaper article, was denied by the trial court on the merits (CT
24 707; RT May 6, 10, and June 24, 1988 at p. 3) following the trial court’s above noted discussion
25 of these very issues with Petitioner. (RT March 7, 1988 at pp. 4-5; CT 685-686.)
26

Petitioner also contends that the second motion to withdraw, brought by Frank in May

27 1988 and joined in by Toton, was improperly denied. He points out that this motion was
28
68

1 unopposed and that the trial court delayed reaching the motion and ultimately did not reach the
2 merits. Frank’s May 1988 withdrawal motion, brought on ethical grounds relating to possibly
3 perjurous testimony, (CT 694-696; URT6 (Frank) [5/6/88] 2-8), joined in by Toton, was denied
4 by the trial court following ex parte in camera hearing because it was too close to trial. (CT 7085 710; RT May 6, 10, and June 24, 1988, at p. 5.) However, the request was devoid of facts
6 showing the nature and basis for relief requested. (RT May 10, 1988, pp. 4-5, 7-8.) Any ethical
7 dilemma involving perjurous testimony would not likely have been resolved by appointing
8 replacement counsel, and the trial court recognized as much. (URT (Frank) [5/6//88] 4-6.)
9 Petitioner does not allege or support an ethical violation. Even if he had, a lawyer’s violation of
10 ethical norms does not make the lawyer per se ineffective. Burt v. Titlow, 134 S. Ct. 10, 18
11 (2013).
12

Moreover, as with the earlier motion to withdraw, Petitioner was ambivalent, neither

13 seeking nor objecting to withdrawal. (URT (Frank) [5/6/88] 9; RT [5/6/88] 2.) Petitioner’s
14 contention his defense waiver was a product of ineffective assistance (Pet. ¶¶ 377-380) is refuted
15 by his expressed desire to plead guilty. (RT [7/27/88] 6-7; URT (Toton) [5/6/88] 2.)
Petitioner’s suggestion that he lacked confidence in counsel because they ignored his

16

17 mental disturbance was not communicated by him to the court and counsel and is not supported
18 by any proffer in the evidentiary record. Petitioner neither sought nor objected to withdrawal of
19 defense counsel Toton and Frank, (RT [5/6/88]2), and had expressed his desire to enter a guilty
20 plea. (RT [5/16/88] 7.) In accordance therewith, trial was waived on the guilt and special
21 circumstances phase. (RT [7/27/88] 6-7.) The state court could reasonably have determined that
22 withdrawal would not have ameliorated any prejudice from Petitioner’s contacting the press, or
23 affected Petitioner’s submission on the preliminary hearing. Sanchez, 12 Cal.4th at 36-37. On
24 this basis Petitioner’s right to counsel was not placed by jeopardy by the continued
25 representation of defense counsel.
26

Respondent contends this claim is not cognizable because it creates and retroactively

27
28

6

The term “URT” is a reference to Unsealed Reporter’s Transcripts of ex parte in camera proceedings.

69

1 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
2 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
3 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
4

For the reasons stated, the state court rejection of the claim was neither contrary to, or an

5 unreasonable application of, clearly established federal law, as determined by the Supreme
6 Court, nor an unreasonable determination of the facts in light of the evidence presented in the
7 state court proceeding. See 28 U.S.C. § 2254(d).
8

Claim 19 is denied.

9

c.

10

Review of Claim 20

In claim 20, Petitioner alleges ineffective assistance of counsel by complete breakdown

11 in the attorney/client relationship violating his Sixth, Eighth and Fourteenth Amendment rights.
12

The California Supreme Court summarily denied this claim (SPet. Claim Q) raised in

13 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). The state supreme
14 court, in its decision on direct appeal, considered Toton’s disciplinary proceedings and noted the
15 following trial court discussion:
16
17
18
19
20
21
22
23
24
25
26
27
28

“The Court: One of the things that concerns me about this incident is the fact of
the date of August 25th and the fact that a jury trial was waived in this case, and
now we're at that stage of the case where a [Penal Code section] 1118.1 is under
submission. And I suppose somebody reviewing this case could say one of the
reasons maybe that Mr. Toton suggested that the jury trial be waived was the fact
that the trial could be completed prior to the time that the Californian suggests
that there's going to be some kind of a ruling in his case. As-and clearly if we had
had a jury, we would still have been going at that time, and I really seriously
doubt whether we would have been in a position even to have begun to take
evidence as of the 25th day of August. That situation worried me a little bit.
“And I wonder if you have discussed this with your client.
“Mr. Frank: Yes, your Honor. I advised [defendant] that the article certainly did
imply that Mr. Toton's motivation for pursuing the presentation of the case in the
manner in which he has, at least indicated, that perhaps he did that because of his
own personal problems, plans or agenda.
“I advised [defendant] that he had the right to be represented by an attorney who
was completely and absolutely free from any sort of conflict, that [defendant] had
the right to have an attorney whose decision-making process was unfettered by
any of his own personal plans or problems, and that he had the right to have an
attorney whose representation and whose decision-making process was based not
on any of the attorney's considerations but on the best interests of [defendant], the
70

1

client in this case.”

2 Sanchez, 12 Cal.4th at 38.
3

Petitioner revisits allegations in claim 19 regarding Toton’s disciplinary issues, and

4 proffers an unsigned declaration of defense expert Isabel Wright that defense counsel disbelieved
5 and disregarded Petitioner. (SHCP Ex. 131, Att. B, ¶ 6-9.)

However, even if competent

6 evidence, Wright’s testimony is controverted by that of defense counsel Toton (SHCP Ex. 137,
7 p. 8) and Frank (SHCP Ex. 113, ¶ 6), that apart from the media interview issue, the attorney8 client relationship was a cooperative one. Moreover, the record shows that the trial court
9 questioned Petitioner to verify that he had spoken to Frank about the disciplinary proceedings,
10 that he had read the Bakersfield Californian article, and that he was unaware of any disciplinary
11 action against Toton prior to the date of the article. The court asked Petitioner if he believed the
12 article implied that “one reason Mr. Toton was pushing this case forward was because of his own
13 personal time considerations.” Petitioner replied: “Not really sir, because we had discussed-you
14 know, this was part- I wanted to go this way in the beginning anyway. So there was really-I
15 never really felt that he was doing it for his own incidences [sic].” Sanchez, 12 Cal.4th at 39.
16

The trial court discussed with Petitioner his earlier position that it was his idea alone to

17 “waive the jury under any circumstances.” Petitioner told the trial court that he wanted to waive
18 jury trial on the guilty and special circumstances phase and that the idea started with him and not
19 defense counsel. (RT [7/27/88] 6-7.)
20

The trial court discussed with Petitioner whether he wanted to make a motion for mistrial

21 “and for certain other motions in view of the publicity that this has gotten?” The following
22 colloquy took place:
23
24
25
26
27
28

“The Court: What I'm concerned [about] is that something will happen down the
line and then you will say, gee, I didn't know what I was doing; I should have
asked for a mistrial at that point in time. That would probably be too late, because
I'm probably getting an indication that you want to waive any problems that Mr.
Toton's difficulties might have in this case. Is that right?
“The Defendant: Yes.
“The Court: I didn't make that very clear.
“The Defendant: Yeah.
“The Court: What I'm saying is, I don't want you to go down the line and then all
71

1
2
3
4
5
6
7

of a sudden say, gee, I've changed my mind.
“The Defendant: Yeah.
“The Court: Probably you can't do that. You understand that?
“The Defendant: Yes, I understand that.
“The Court: Are you satisfied with the state of the record at this point?
“The Defendant: Yes sir. I'm very satisfied.
“The Court: Nobody threatened you to get you to say this?
“The Defendant: No, sir ....
“The Court: Are you satisfied, sir, that Mr. Toton's dilemma with the State Bar
had nothing to do with the waiver of the jury trial?
“Mr. Frank: I am, yes.
“The Court: And are you, Mr. Sanchez?
“The Defendant: I am too.”

8 Sanchez, 12 Cal.4th at 39-40.
9

Based on the foregoing, and for the reasons discussed in claim 19, the state court could

10 reasonably have determined Petitioner did not established ineffective assistance of counsel
11 through complete breakdown of the attorney/client relationship. As noted by the state supreme
12 court, “[i]n order to establish a violation of the right to effective assistance of counsel, a
13 defendant must show that counsel's performance was inadequate when measured against the
14 standard of a reasonably competent attorney, and that counsel's performance prejudiced
15 defendant's case in such a manner that his representation “so undermined the proper functioning
16 of the adversarial process that the trial cannot be relied on as having produced a just result.”
17 Strickland, 466 U.S. at 686. The record above does not support such a finding.
18

Moreover, “a court need not determine whether counsel's performance was deficient

19 before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
20 Strickland, 466 U.S. at p. 697. Prejudice is shown when there is a “reasonable probability that,
21 but for counsel's unprofessional errors, the result of the proceeding would have been different. A
22 reasonable probability is a probability sufficient to undermine confidence in the outcome.” In re
23 Sixto (1989) 48 Cal.3d 1247, 1257; Strickland, 466 U.S. at p. 694. If defendant fails to show
24 that he was prejudiced by counsel's performance, the ineffective assistance claim may be rejected
25 without determining whether counsel's performance was inadequate. Strickland, 466 U.S. at p.
26 697.)”
27

Petitioner has not established prejudice. Toton was licensed to practice law until his

28
72

1 disbarment on March 31, 1989, after Petitioner’s trial was completed. In rejecting this claim on
2 appeal, the state supreme court pointed out that:
3
4
5
6
7
8
9
10
11

[Petitioner] does not assert that Toton's pending discipline prejudiced his case.
The record would not support such an argument. Toton vigorously crossexamined prosecution witnesses at the preliminary hearing and during the guilt
phase, made several defense motions, including one for appointed assistant
counsel, which was granted, and motions for pretrial discovery, severance and
additional motions that indicated he was vigorously representing his client. In
addition, Toton made a comprehensive closing argument at the guilt phase. Thus,
there is no indication on the record that counsel's representation was anything less
than competent, and defendant fails to persuade us that counsel's representation
was ineffective solely on the basis of the disciplinary action pending against him .
. . Toton was a member of the State Bar at all times during his representation of
defendant. “ 'Erring morally or by a breach of professional ethics does not
necessarily indicate a lack of knowledge of the law.'” [Citation] We simply are
not persuaded that Toton's unrelated disciplinary problems in any way influenced
his representation of defendant or otherwise rendered him unfit as a matter of law.
[Citation]

12 Sanchez, 12 Cal.4th at 43-45.
13

Petitioner’s contention that defense counsel found him uncooperative is refuted by Mr.

14 Frank’s declaration where he said that, except for the media interviews, Petitioner was
15 cooperative with defense counsel. (SPet. Ex. 113, p. 3.) As to the alleged ethical dilemma, as
16 noted a lawyer’s violation of ethical norms does not make the lawyer per se ineffective. Burt,
17 134 S. Ct. at 18.
18

Respondent contends this claim is not cognizable because it creates and retroactively

19 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
20 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
21 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
22

The Court finds that, the reasons discussed, the state court rejection of the claim was

23 neither contrary to, or an unreasonable application of, clearly established federal law, as
24 determined by the Supreme Court, nor an unreasonable determination of the facts in light of the
25 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
26

Claim 20 is denied.

27

d.

Analysis - Claims 21-24

28
73

1

Petitioner claims denial of effective assistance of counsel through the appointment of

2 Toton as lead counsel and the failure to replace him notwithstanding his conflicts of interest and
3 Petitioner’s insufficient waiver thereof, violating his Sixth, Eighth, and Fourteenth Amendment
4 rights.
5

The California Supreme Court summarily denied claims 21, 23 and 24 (SPet. Claims P, R

6 and S respectively) raised in Petitioner’s state petition for habeas corpus.

In re Sanchez,

7 S049502 (DD). As noted, in such a case “the habeas petitioner’s burden still must be met by
8 showing there was no reasonable basis for the state court to deny relief,” Richter, 562 U.S. at 98,
9 and this Court “must determine what arguments or theories supported or . . . could have
10 supported, the state court’s decision; and then it must ask whether it is possible fair-minded
11 jurists could disagree that those arguments or theories are inconsistent with the holding in a prior
12 decision of this Court.” Id. (emphasis added).
13

The state supreme court, in reviewing these issues on direct appeal, noted that:

14

Defendant's claim that Toton's disciplinary proceedings rendered him
incompetent is no more persuasive if considered under the rubric of conflict of
interest. A criminal defendant's right to effective assistance of counsel,
guaranteed by both the state and federal Constitutions, includes the right to
representation free from conflicts of interest. [Citation] To establish a violation
of the right to unconflicted counsel under the federal Constitution, 'a defendant
who raised no objection at trial must demonstrate that an actual conflict of
interest adversely affected his lawyer's performance.' [Citation] To establish a
violation of the same right under our state Constitution, a defendant need only
show that the record supports an 'informed speculation' that counsel's
representation of the defendant was adversely affected by the claimed conflict of
interest. [Citation]

15
16
17
18
19
20
21
22
23
24
25
26
27
28

[W]e also observed that “[c]onflicts of interest may arise in various factual
settings. Broadly, they 'embrace all situations in which an attorney's loyalty to, or
efforts on behalf of, a client are threatened by his responsibilities to another
client or a third person or by his own interests.'” [Citation]
Defendant contends that the alleged conflict of interest between himself and
Toton was caused by Toton's “own interest” in expediting the trial prior to his
disbarment, to the defendant's prejudice. Defendant asserts that the fact of the
pending disciplinary action gave Toton a strong incentive to finish defendant's
case as quickly as possible, implying that Toton's desire to end the case led to a
constitutionally deficient performance.
Based on the appellate record, we are not persuaded by defendant's arguments.
As we have observed, the record shows that Toton was not disbarred until eight
months after the court and defendant learned of the proceedings against him, and
74

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

one month after completion of the penalty phase of defendant's trial. There is no
indication that the disciplinary proceedings influenced the pace of Toton's
representation, and, indeed, there is substantial evidence on record that would
support the opposite conclusion.
First and foremost, it was Toton who advised defendant not to plead guilty and
instead to submit the guilt and special circumstance issues on the basis of the
preliminary hearing transcripts. This alternative to a guilty plea allowed counsel
to contest the People's case, present various defense motions to the court, and
generally make a stronger case for defendant than would have been available
following a guilty plea. Thus, counsel Toton actually prolonged the trial
notwithstanding defendant's desire to proceed directly to the penalty phase.
Moreover, even if we were to perceive either an actual conflict of interest, as
required by federal law, or to conclude the record supports an “informed
speculation” of a conflict as required under our state Constitution, defendant
intentionally and knowingly waived any conflict on the record. [Citation]
In addition, defense counsel Frank informed the court he was satisfied that
Toton's pending discipline “had nothing to do with the waiver of the jury trial.”
At a later in camera hearing attended by defense counsel Frank, defendant
admitted that, in partially submitting his case, it was his desire to waive jury trial
“under any circumstances,” that he had had a “lengthy discussion” regarding his
rights with defense counsel Frank, and that he wanted to maintain the status quo.
The fact that defendant did not discuss Toton's pending discipline with him does
not assist defendant's conflict claim. Here, defendant asserts that his “discussion
with Frank could not substitute for a discussion with Toton. By his own
admission, Frank knew nothing about his co-counsel's impending [discipline]
until the news appeared on the front page of the Bakersfield newspaper . . . .
Toton hid this important fact from his own assistant counsel until the news
became public. Nothing in the record indicates that Frank knew any more about
the [discipline] than did the readers of the Bakersfield Californian. Frank simply
was not able to speak for Toton in discussing the impact of the [disciplinary
proceedings] on the future conduct of the defense [nor was] Frank in [a] position
to discuss with [defendant] how the [disciplinary] proceedings already might
have affected Toton's guilt phase strategy.” Defendant fails to show, however,
how Toton's assurances or perspective would have assisted him in determining
whether he wanted to waive the conflict, or how Toton would have provided him
with a better explanation than that given by the court about the potential
drawbacks of Toton's continued representation.
Defendant next asserts that the trial court failed in its duty to ensure that he
knowingly and intelligently waived any conflict with counsel. “When a trial
court knows or should know that defense counsel has a possible conflict of
interest with his client, it must inquire into the matter [citations] and act in
response to what its inquiry discovers [Citation].” If the court determines that a
waiver of a conflict is necessary, it must satisfy itself that “ '(1) the defendant has
discussed the potential drawbacks of [potentially conflicted] representation with
his attorney, or if he wishes, outside counsel, (2) that he has been made aware of
the dangers and possible consequences of [such] representation in his case, (3)
that he knows of his right to conflict-free representation, and (4) that he
voluntarily wishes to waive that right.'” [Citation] A trial court's failure to inquire
into the conflict or to adequately respond to its inquiry amounts to reversible
error if the defendant can show “that an actual conflict of interest existed and that
75

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

that conflict adversely affected counsel's performance.” [Citation]
Defendant asserts that the trial court “never asked [defendant] in clear,
unambiguous language whether he was willing to waive his right to unimpaired
counsel.” He also complains of the court's failure to “determine whether
[Toton's] alleged misuse of client funds might indicate that Toton had financial
difficulties which might affect his work or handling of funds in [defendant's]
case, [nor did the court] ask Toton about the timetable of state bar proceedings
[or ask] how the bar proceeding might affect, or might have affected, Toton's
conduct of [defendant's] case.”
In deciding whether a defendant understands the nature of a possible conflict of
interest with counsel, the trial court need not explore each foreseeable conflict
and consequence. [Citation] Nor does a defendant's waiver of conflict-free
counsel extend merely to matters discussed on the record. [Citation] As we
observed in [Citation] “[r]ules that are that strict seem neither necessary nor
workable.” [Citation] (waiver found adequate even though all conceivable
ramifications of conflict not explained). Thus, looking at the whole record, we
must determine whether defendant was aware of the potential drawbacks and
possible consequences of retaining Toton, and whether he understood his right to
conflict-free counsel and knowingly waived that right.
It is clear that the record belies defendant's argument. The court's response to the
asserted conflict of interest was appropriate under the circumstances; it was
immediate and informed petitioner of his rights under the facts. As the record
indicates, the court discussed the conflict with the parties, was careful to ensure
defendant was aware that a conflict existed, and confirmed that his waiver of the
conflict was voluntary and knowing. [Citation] Defendant even declined the
court's invitation to make a motion for mistrial, emphasizing that he was satisfied
with the state of the record. Thus, in light of all the circumstances, we conclude
the court gave defendant an opportunity to declare a mistrial, to relieve counsel,
and to voice his objections on the record. In our view, the trial court conducted
an adequate inquiry into the conflict, and we are satisfied that defendant's waiver
was knowing and voluntary. [Citation]

18
19 Sanchez, 12 Cal.4th at 45-48.
20

The Sixth Amendment provides that a criminal defendant shall have the right to “the

21 Assistance of Counsel for his defense.” As a general matter, a defendant alleging a Sixth
22 Amendment violation must demonstrate “a reasonable probability that, but for counsel's
23 unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
24 U.S. at 694.
25

An exception exists for cases in which counsel actively represents conflicting interests.

26 Mickens v. Taylor, 535 U.S. 162, 166 (2002); Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980).
27 In such a case, prejudice is presumed. Id. However, Petitioner must establish that “an actual
28
76

1 conflict of interest actually affected the adequacy of [defense counsel’s] representation.”
2 Sullivan, 446 U.S. at 348-49.

Thus, “until a defendant shows that his counsel actively

3 represented conflicting interests, he has not established the constitutional predicate for his claim
4 of ineffective assistance.” Id. at 350 (emphasis in original).
5

Petitioner supports these claims in part with facts alleged in claims 5 and 6. He contends

6 that Toton, who had state bar disciplinary proceedings pending against him at the time he was
7 appointed to Petitioner’s case. He contends Toton obtained his bar license by fraud. He
8 contends that Toton had conflicts of interest relating to disbarment proceedings which should
9 have resulted in replacement lead counsel and a jury trial at the guilt and special circumstance
10 phase. However, there is no competent evidence Toton obtained his law license by fraud (SHCP
11 Ex. 133, Att. A), or that he engaged in the practice of law prior to his admission to the bar.
12 (SHCP Exhs. 514; 516-18.) Toton was not disbarred until March 31, 1989, five months after the
13 penalty phase verdict. (SHCP Ex. 519.)
14

Petitioner faults the trial court for failure to conduct an adequate inquiry into Toton’s

15 possible conflict of interest, noting Toton was never questioned. (Sealed RT July 26, 1988, at
16 pp. 80-84.) However, the trial judge did look into the pending disciplinary proceedings against
17 Toton and discussed such with the parties and Petitioner. See Sanchez, 12 Cal.4th at 47. The
18 Court provided Petitioner the opportunity to “declare a mistrial, to relieve counsel, and to voice
19 his objections to the record.” Id. In response Petitioner voluntarily, knowingly and intentionally
20 waived any conflict of interest on the record following a discussion with co-counsel Frank and
21 the trial court as to his rights to conflict free representation and potential drawbacks and
22 consequences of staying with Toton (RT [7/27/88] 3, 4-10), as reflected by his statement he
23 wanted to maintain the status quo. (RT [7/27/88] 8.) He refused the court’s invitation for
24 mistrial, to relieve counsel, and to object to the record. Sanchez, 12 Cal.4th at 47.
25

The evidentiary record does not reflect that Toton’s litigation of the case was influenced

26 by an actual conflict arising from the disciplinary proceedings. See Burger, 483 U.S. at 783.
27 Petitioner’s argument that, had the trial court pressed the inquiry, Toton would have withdrawn
28
77

1 or been replaced and a full defense then mounted, is based upon speculation. The trial court
2 could reasonably have found that there was no actual unwaived conflict of interest. The state
3 court could have concluded that Petitioner understood what he was waiving, was “very satisfied”
4 with the record and acting voluntarily, (RT [7/27/88] 8), and that Toton’s situation had “nothing
5 to do with his waiver of the jury trial.” (RT [7/27/88] 9-10.)
6

Petitioner’s contention that he should have been allowed to discuss Toton’s alleged

7 conflict with Toton himself or outside counsel is unaccompanied by any evidentiary proffer how
8 that would have resulted in a more favorable outcome. The state supreme court found that “the
9 fact disciplinary proceedings were pending against counsel Toton did not automatically render
10 Toton’s performance inadequate or prejudice [Petitioner’s] right to effective counsel.” Sanchez,
11 12 Cal.4th at 44. The court further found that Toton engaged in vigorous witness examination
12 and cross-examination (CT 518-625; RT 2664-2670), pre-trial discovery (CT 649-663, 769),
13 preemptory challenges (CT 836-840) evidentiary motions (CT 841-45, 846-53, 854-58, RT 80,
14 97-113), and closing argument. (RT 169-96.) All this supported the conclusion that Toton’s
15 representation was adequate.

The state supreme court also found “no indication that the

16 disciplinary proceedings influenced the pace of Toton’s representation.” Sanchez 12 Cal.4th at
17 45:2). Nothing in the state record suggests otherwise.
18

For the reasons discussed in claims 19 and 20, ante, Petitioner has not established denial

19 of effective assistance of counsel through denial of defense counsel motions to withdraw,
20 breakdown of the attorney-client relationship by virtue of Toton’s debarment proceedings, or
21 waiver of jury trial at the guilt and special circumstance phase. The assertion in claims 21-24,
22 that the trial court did not sufficiently investigate defense counsel’s alleged conflict of interest
23 similarly fails for the same reasons.
24

Petitioner expressed his desire to plead guilty, to stay with Toton following discussion

25 with the court and defense counsel. Toton, assisted by co-counsel Frank, vigorously cross26 examined witnesses and made a variety of pretrial and trial motions and made a detailed guilt
27 phase closing argument, thereby distinguishing this matter from Petitioner’s cited People v.
28
78

1 Williams, 93 Ill.2d 309 (1982) and People v. Rainge, 112 Ill.App.3d 396 (1983). Petitioner was
2 aware of the possible problems with Toton’s continued representation and his right to conflict
3 free representation, having discussed these matters with co-counsel Frank for approximately an
4 hour, and Petitioner thereafter expressly waived any such conflict.

(RT [7/27/88] 4-10.)

5 Petitioner argues that defense counsel Frank lacked sufficient information about Toton’s
6 disciplinary proceedings to discuss the matter with Petitioner, (SHCP Ex. 137, ¶ 16), but makes
7 no proffer of how and why this was so and cause him prejudice. Frank believed that Toton’s
8 disciplinary issues did not affect the proceedings. (Sealed RT July 27, 1988, at p. 9-10.)
9

Petitioner’s re-argument that neuropsychological deficits (organic impairments) and

10 neurological and psychiatric disorders (psychiatric impairments) prevented him from
11 competently waiving the conflict fails substantively for the reasons stated in claims 1-4 and 6.
12 As discussed in those claims, Dr. Foster’s 1995 opinion of Petitioner’s mental state, that there is
13 a high probability Petitioner suffered neuropsychological and psychiatric disorders and
14 impairments during the pretrial and trial period, does not demonstrate the trial court decision to
15 allow Toton to continue as lead counsel was unreasonable.
16

At bottom, Petitioner has not demonstrated Toton had an actual conflict of interest. See

17 Garcia v. Bunnell 33 F.3d 1193, 1198 (9th Cir. 1994) (no actual conflict where record discloses
18 no active representation of competing interest); see also Burger, 483 U.S.at 783; Mickens, 535
19 U.S. at 171 (“[A]n actual conflict of interest [means] precisely a conflict that affected counsel's
20 performance—as opposed to a mere theoretical division of loyalties.”). To meet this standard, he
21 must show “that the attorney's behavior seems to have been influenced by the conflict,” which,
22 though not a showing of actual prejudice, “remains a substantial hurdle.” Lockhart v. Terhune,
23 250 F.3d 1223, 1231 (9th Cir. 2001). Even if he had demonstrated actual conflict, Petitioner has
24 not demonstrated that his waiver the conflict was invalid. Garcia, 33 F3d at 1195 (9th Cir.
25 1994);
26

Respondent contends claims 21, 22 and 24 are not cognizable because each creates and

27 retroactively applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288.
28
79

1 However, the Court finds the claims fail not because Petitioner seeks to apply a new rule of
2 criminal procedure under Teague, but rather on grounds the claims lack merit for the reasons
3 stated.
4

A fair-minded jurist could have found that rejection of these claims was neither contrary

5 to, or an unreasonable application of, clearly established federal law, as determined by the
6 Supreme Court, nor an unreasonable determination of the facts in light of the evidence presented
7 in the state court proceeding. See 28 U.S.C. § 2254(d).
8

Claims 21-24 are denied.

9

e.

10

Review of Claims 25-26

Petitioner next claims that he was not competent to waive trial by jury and confrontation

11 and cross-examination of witnesses and presentation of a defense, and that he was not competent
12 to stand trial, violating his Sixth, Eighth, and Fourteenth Amendment rights. He supports these
13 claims with facts alleged in denied claims 6 through 10 and 14.
14

The California Supreme Court summarily denied claims 25 and 26 (SPet. Claims W and

15 T respectively) raised in Petitioner’s state petition for habeas corpus. In re Sanchez, S049502
16 (DD). As noted, in such a case “the habeas petitioner’s burden still must be met by showing
17 there was no reasonable basis for the state court to deny relief,” Richter, 562 U.S. at 98, and this
18 Court “must determine what arguments or theories supported or . . . could have supported, the
19 state court’s decision; and then it must ask whether it is possible fair-minded jurists could
20 disagree that those arguments or theories are inconsistent with the holding in a prior decision of
21 this Court.” Id. (emphasis added).
22

i.

23

The state supreme court found Petitioner knowingly, voluntarily and intelligently waived

Trial Waivers

24 rights when it considered the matter on direct appeal. This Court agrees, for the reasons
25 discussed in claims 6, 14 and 21-24. The trial court allowed Toton to inform Petitioner of his
26 constitutional rights, which Petitioner acknowledged he was waiving “freely and voluntarily.”
27 Sanchez, 12 Cal.4th at 24-25.

Petitioner’s suggestion he did not receive a sufficient narrative

28
80

1 explanation of rights waived is refuted by the evidentiary record. Toton informed the trial court
2 he had discussed the guilt and special circumstance submission and waiver with Petitioner, who
3 agreed to the procedure. (RT-10a.) Petitioner expressly declined the offer of more time to
4 consider the waiver decision, stating that he was “very confident” of his decision. See Sanchez,
5 12 Cal.4th at 26; CT 889-892; RT-10a, 98a-100a.). Petitioner then entered jury trial, compulsory
6 process, confrontation and cross-examination and presentation of evidence waivers on the
7 record. (CT 891; RT- 108a-114a.) Petitioner confirmed the waivers the next day, July 14, 1988.
8 (CT 892; RT-115a.) Petitioner’s argument that medication he received during his incarceration
9 impacted the waivers (SHCP Exhs. 111, ¶ 64; 601) is not sufficiently supported in the
10 evidentiary record.
11

ii.

12

The State Supreme Court also considered on direct appeal Petitioner’s argument that the

Slow Guilty Plea

13 submission for court trial was a “slow plea” unaccompanied by waivers sufficient under Boykin14 Tahl. That court found no “slow plea” because defense counsel called and cross-examined
15 witnesses, retained the right to present additional evidence, attempted to impeach Hernandez,
16 moved to strike testimony, moved for judgment of acquittal on insufficiency of the evidence,
17 argued against first degree murder, and made an extensive closing argument. Sanchez, 12 Cal.4th
18 at 28-30. That court also ruled there was no surrender of the rights against self-incrimination
19 (because Petitioner chose not to testify at the guilt phase) and no prejudicial error from any
20 failure to advise Petitioner of the consequences of conviction, noting that:
21
22
23
24

Defendant had been thoroughly advised by counsel of the consequences of
pleading guilty and of the consequences of waiving his constitutional rights. He
was well aware that he faced a possible death sentence, and, according to reporter
Trihey, even asked for his own death. It is clear from the record that defendant
would have waived his right to a jury trial and insisted on the submission of the
guilt phase on the preliminary hearing transcripts even if he was specifically told
by the court that he faced a possible death sentence.

25
26 Sanchez, 12 Cal.4th at 30-31.
27
28
81

1

At trial, Petitioner was questioned about the charges pending and consequences of

2 conviction:
3
4
5
6
7
8
9
10

“Mr. Toton: And you also understand the nature of the charges against you in this
proceeding; is that correct?
“The Defendant: Yes, sir.
Mr. Toton: All right, and that there are three counts of homicide alleged with
special circumstances.
The Defendant: Yes.
Mr. Toton: Thank you, your Honor.
The Court: And I take it, sir, that you have done all this freely and voluntarily?
The Defendant: Yes, sir.
The Court: No one has threatened you?
The Defendant: No, sir.
The Court: And you have done this after consultation with both of your lawyers?
The Defendant: Yes, sir.
The Court: Thank you.

11 (CT 889; RT- 65a-68a.)
12

Petitioner was given time to consider the waiver which did not become final until the

13 following day, when he confirmed the waiver and that it was made freely and voluntarily. (CT
14 891-892; RT-115a.)
15

The Court finds the “slow plea” claim is not adequately supported by the state record.

16 Petitioner consulted with defense counsel prior to the waivers and submission to court trial;
17 repeatedly stated his desire to plead guilty; and acquiesced to counsel’s urging to allow cross18 examination and argument in his defense. The California Supreme Court’s determination of facts
19 was not unreasonable in light of the evidence above and Petitioner’s desire to plead guilty. (RT –
20 87a.) That court’s rejection of Petitioner’s claims neither contrary to, nor an unreasonable
21 application of, United States Supreme Court precedent.
22

iii.

23

Petitioner maintains Dr. Matychowiak, who conducted his psychiatric evaluation in

Competency for trial

24 November 1987, erred in finding him competent to stand trial because: (1) the opinion was
25 based on a single, inefficient interview, (2) the conclusion relies almost exclusively on
26 Petitioner’s statements and are not corroborated by independent evidence, (3) insufficient
27 information was obtained about several important factors, including Petitioner’s history of severe
28
82

1 childhood trauma and extreme neurological deficits, (4) the effect of signs of potential brain
2 damage, including history of head injury, paint sniffing and PCP use, as well findings of poor
3 “theoretical and general judgment” were not considered, (5) the effect of signs of depression,
4 suicidal intentions, and self-mutilation were not considered, (6) no questions were asked about
5 Petitioner’s understanding of the nature of the proceedings or his ability to consult with or assist
6 counsel, and (7) the diagnosis of borderline personality disorder with a past history of substance
7 abuse did not follow logically from findings of head injury, severe drug abuse, depression,
8 suicidal tendencies and poor theoretical and general judgment.
9

A defendant is not competent to stand trial if he lacks “sufficient present ability to consult

10 with his lawyer with a reasonable degree of rational understanding–and a rational as well as
11 factual understanding of the proceedings against him.” Dusky v. United Sates, 362 U.S. 402
12 (1960). A state may legislate the presumption that defendants are competent to stand trial and
13 require defendants to bear the burden of proving that they are not. Medina v. California, 505
14 U.S. 437, 449 (1992).
15

Petitioner has not made a sufficient showing that he was erroneously deemed mentally

16 competent. Petitioner’s contention his neuropsychological deficits (organic impairments) and
17 neurological and psychiatric disorders (psychiatric impairments) prevented him from
18 competently standing trial and making the above waivers fails substantively for the reasons
19 stated in claim 6. Petitioner did not suffer hallucinations or delusions memory lapse at this time.
20 (SPet. Ex. 520, p. 5.) He wanted to enter a guilty plea, though his attorneys had not allowed him
21 to do so. (Id. at p. 2-4.) Dr. Matychowiak found that Petitioner
22
23
24
25

[Q]uite clearly understand(s) his situation and has the comprehension of the court
processes. He is able to discuss himself, his decisions and his reasoning for his
decisions . . . At the present time he shows evidence of a basic personality
disorder. However, this does not make him unable to understand court procedures
or his need for his own defense. It does not appear to significantly interfere with
his capacity to cooperate with his attorney.”

26 Id., at 5-6. Dr. Matychowiak found Petitioner “presently able to understand the nature and
27 purpose of proceedings taken against him” and “to cooperate in a rational manner with counsel
28
83

1 in presenting a defense.” (SPet. Ex. 520, p.6.)
2

As discussed above, defense psychologist Donaldson, who examined Petitioner prior to

3 the preliminary hearing, found Petitioner to be of average intelligence with no deficits in reality
4 testing or thought disorder. (SPet. Ex. 106, p. 2.) Defense counsel were entitled to rely on the
5 expert’s opinions, and were not obligated, without a request for information from the expert, to
6 investigate further in these regards. Hendricks v. Calderon, 70 F.3d 1032, 1038 (9th Cir. 1995);
7 cf., Silva v. Woodford, 279 F.3d 825, 842-43 (9th Cir. 2002) (trial counsel deficient if inadequate
8 investigation into background and mental health: at guilt if expert requests information; and at
9 penalty if the information is mitigating).
10

Petitioner points to declarations included with the state habeas petition by psychologists

11 Doane and Froming (SHCP Exhs. 105 and 114 respectively) and psychiatrist Foster (SHCP Ex.
12 111). These experts opine that Petitioner had a history of heavy paint sniffing and PCP abuse
13 (SHCP, Ex. 111, ¶ 90), and suffered significant organic brain damage and neuropsychological
14 deficits and post-traumatic stress disorder at the time of his trial waivers. (SHCP Exhs. 105, ¶¶
15 153-165; 111, ¶¶ 60-69). Petitioner contends that, as of December 1987, he was considered a
16 “mentally unstable inmate’ based on his bizarre behavior, overwhelming guilt and depression,
17 instability, possible hallucinations and a suicide attempt. (SCHP Ex. 601.)
18

However, to the extent that these declarations can be considered evidence, they were not

19 presented to the California Supreme Court in his appeal. As to claims adjudicated in the appeal,
20 the Court cannot consider these declarations here. Pinholster, 131 S. Ct. at 1398. Even if they
21 could be considered, they are not sufficient evidence in support of the claims for the reasons
22 stated. Petitioner was mentally competent for reasons discussed in claims 6, and knowingly and
23 voluntarily made the waivers for reasons discussed in claims 14 and 21through 24.
24

Due process requires a state to provide access to competent psychiatric assistance when a

25 defendant demonstrates that his sanity at the time of the offense will be a significant factor at
26 trial. Ake v. Oklahoma, 470 U.S. 68, 83 (1985). However, an indigent defendant does not have
27 a constitutional right to hire the psychiatrist of his choice. Id. Petitioner’s claim that the court28
84

1 hired psychiatrist, Dr. Matychowiak, was incompetent is foreclosed by Harris v. Vasquez, 949
2 F.2d 1497, 1517 (9th Cir. 1990), which refused to expand Ake to encompass a “battle of
3 experts.”

Id., at 1517-18 (citing Silagy v. Peters, 905 F.2d 986, 1013 (7th Cir. 1990)).

4 “Allowing such battles of psychiatric opinions during successive collateral challenges to a death
5 sentence would place federal courts in a psycho-legal quagmire resulting in the total abuse of the
6 habeas process.” Id. at 1518.
Dr. Matychowiak was aware of Petitioner’s history of substance abuse (SPet. Ex. 520, pp.

7

8 3-4), and found Petitioner competent to stand trial. (SPet. Ex. 520, pp. 2-6.) Dr. Matychowiak
9 found that Petitioner understood his situation and the court process, had the capacity to cooperate
10 with his attorney and wanted to plead guilty and “get it over with.” (SPet. Ex. 520, pp. 2-6.)
11 Moreover, Petitioner’s coherent interaction with the trial court and counsel, and defense
12 counsel’s failure to raise any competency concern, are some evidence Petitioner was then
13 competent. See United States v. Lewis, 991 F.2d 524, 528 (9th Cir. 1993). Petitioner’s alleged
14 facts are not sufficient to create real and substantial doubt as to his competency. See Boag v.
15 Raines, 769 F.2d 1341, 1343, (9th Cir. 1985).
16

For the reasons stated, a fair-minded jurist could have found that the state court rejection

17 of these claims was neither contrary to, or an unreasonable application of, clearly established
18 federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts
19 in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
20

Claims 25-26 are denied.

21

f.

22

In his next claim, Petitioner alleges the trial court misapplied the California Shield Law

Review of Claim 277

23 to reporter Trihey’s testimony, violating Petitioner’s rights to confrontation, due process, a fair
24 trial and compulsory process under the Sixth, Eighth, and Fourteenth Amendments.
25

The California Supreme Court rejected this claim on direct appeal. Sanchez, 12 Cal.4th at

26 52-58.
27
28

7

The legal basis of the Eighth Amendment was stricken as unexhausted. ECF No. 60 at 9:4.

85

1

The California Shield Law8 states in pertinent part that:

2

A publisher, editor, reporter, or other person connected with or employed upon a
newspaper, magazine, or other periodical publication, or by a press association or
wire service, or any person who has been so connected or employed, shall not be
adjudged in contempt by a judicial, legislative, or administrative body, or any
other body having the power to issue subpoenas, for refusing to disclose the
source of any information procured while so connected or employed for
publication in a newspaper, magazine or other periodical publication, or for
refusing to disclose any unpublished information obtained or prepared in
gathering, receiving or processing of information for communication to the
public. “As used in this subdivision, 'unpublished information' includes
information not disseminated to the public by the person from whom disclosure is
sought, whether or not related information has been disseminated and includes,
but is not limited to, all notes, outtakes, photographs, tapes or other data of
whatever sort not itself disseminated to the public through a medium of
communication, whether or not published information based upon or related to
such material has been disseminated.”

3
4
5
6
7
8
9
10

The state supreme court considered this claim and noted the burden on Petitioner:
11
Faced with a claim of privilege, the burden is on the party seeking to avoid the
privilege competently to demonstrate not only that the evidence sought is relevant
and necessary to his case, but that it is not available from a source less intrusive
upon the privilege. Moreover, as with any attempt to discover evidence subject to
a claim of privilege, a defendant must show a reasonable possibility that the
evidence sought might result in his exoneration.” [Citation]

12
13
14

15 Sanchez, 12 Cal.4th at 52.
Trihey testified during the guilt phase subject to invocation of the newsperson’s shield

16

17 law. He testified that during interviews that Petitioner had told him he was “triple murderer” and
18 that “all three were killed for their Social Security checks.” (RT 18.) These statements were
19 published in the Bakersfield Californian on April 25, 1988. (RT 17-18.)
Toton objected to use of the newsperson’s shield law to protect unpublished information

20

21 in Trihey’s possession.

The trial court ruled for such protection, limiting Toton’s cross-

22 examination to only published information and finding that impeachment of Trihey was not at
23 issue. (RT 57-59.) Toton then decline further cross-examination of Trihey. (RT 65.)
Petitioner alleges that the trial court’s misapplication of California Shield Law to reporter

24

25 Trihey’s testimony caused defense counsel Toton to decline any cross-examination of Trihey,
26 denying Petitioner an effective defense.
27
8

California Constitution, article I, section 2, subdivision (b); Cal. Evid. Code §1070 contains substantially similar

28 language. See Delaney v. Superior Court, 50 Cal.3d 785, 796 (1990).
86

1

The state court found Petitioner failed to carry his burden:

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

In attempting to meet his burden, defendant attacks his own credibility by
claiming he made inconsistent statements during the course of the interviews that
would have exposed his confused state of mind at the time the interviews took
place. He asserts his alleged unpublished statements also could have been used to
impeach Trihey's testimony that defendant had told him he was a “triple
murderer” and that “all three were killed for their social security checks.” But
defendant never shows how the information he sought would materially assist his
defense, or how it differed in content from the testimony and published
information available for cross-examination, including defendant's statements that
he was scared, that he had taken phencyclidine (PCP), and that he had not
murdered anyone. Defendant simply asserts that he “needed discovery of, and
cross-examination about, the unpublished records of the interviews to impeach
Trihey's testimony. Unlike other statements attributed to [defendant] in the April
25th article, Trihey's 'triple murderer' assertion was not a direct quotation. Rather,
it was a conclusion drawn by Trihey. Trihey's unpublished material might have
shown that his 'triple murder' testimony was his own interpretation of
[defendant's] account, not an actual admission. Moreover, discovery and crossexamination might have proven that Trihey's conclusion was not supported by the
interviews. The tapes might have shown that [defendant] never said he was a
'triple murderer' or a 'triple killer'; that he did not hit either Juan or Juanita; that he
did nothing to aid or abet Joey; that he did not intend that either Juan or Juanita be
killed; that he tried to stop Joey from killing his parents; or that he feels guilty
because he failed to prevent the homicides. Any of these possibilities would have
bolstered [defendant's] insufficiency of the evidence argument.”
The alleged evidence defendant claims would have materially assisted his defense
consists of nothing more than self-serving statements that a court could
reasonably conclude were either too speculative to assist defendant or would
harm, rather than materially assist, the defense. Indeed, this case is similar to
[Citation], in which the court rejected the defendant's attempt to attack his own
credibility by subpoenaing a reporter's unpublished interview notes. Based on this
record, and under the more recent [citation] threshold test, we find that defendant
has failed to make the threshold showing that publication of alleged unpublished
interview information possessed by Trihey would have materially assisted the
defense and defeated Trihey's claim of immunity under the shield law.
In addition, for the same reasons noted above, we reject defendant's claim that he
was denied his right to confront and cross-examine Trihey and to discover and
present evidence under the Sixth and Fourteenth Amendments. The record shows
the court rejected Trihey's statements as proof that defendant killed the victims for
their Social Security checks. Moreover, the court found untrue the special
circumstance allegations that the murders of Juan and Juanita Bocanegra were
committed during a robbery and found defendant not guilty of the robbery in
connection with that crime. Thus, it appears the court afforded little weight to
Trihey's testimony, and defendant was not denied his federal constitutional right
to a fair trial simply because the court allowed the testimony to be introduced.

26 Sanchez, 12 Cal.4th at 56-58.
27

The state supreme court also rejected Petitioner’s assertion that counsel's failure to cross-

28
87

1 examine Trihey before closing argument denied him the effective assistance of counsel under
2 article I, section 15 of the California Constitution, and the Sixth and Fourteenth Amendments to
3 the federal Constitution, noting that:
4
5
6
7
8
9
10
11
12

In order to succeed in his claim, “defendant must show (1) deficient performance
under an objective standard of professional reasonableness and (2) prejudice
under a test of reasonable probability of an adverse effect on the outcome.”
[Citation] Defendant does not satisfy either prong of the foregoing test.
As discussed, Toton convinced the court during his closing argument that Trihey's
testimony should not be given substantial weight; his decision not to crossexamine Trihey as to the contents of the published material was sound strategy,
given the nature of defendant's alleged contradictory statements. Defendant does
not establish that cross-examination would have revealed any new information, or
that any additional information about the interviews would have influenced the
court's judgment. Hence, we cannot find counsel's failure to cross-examination
Trihey to be deficient. In any event, given the fact that the court dismissed the
robbery charges against defendant, and found not true the robbery-murder specialcircumstance allegation, we discern no prejudice to defendant based on counsel's
performance. [Citation]

13 Sanchez, 12 Cal.4th at 58-59.
14

The state court was not unreasonable in rejecting the claim. Petitioner does not make an

15 evidentiary showing identifying how and why unpublished interview information sought from
16 Trihey differed from that in the record and would likely change the result in his proceeding. The
17 state court, having found that impeachment of Trihey was not in issue, Sanchez, 12 Cal.4th 52,
18 and giving only minimal weight to Trihey’s testimony of a robbery motive, could reasonably
19 have rejected Petitioner’s speculation and desire to impeach himself by arguing that the
20 interviews did not support the articles.
21

“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision

22 that makes particular investigations unnecessary.”

Strickland, 466 U.S. at 691.

“In any

23 ineffectiveness case, a particular decision not to investigate must be directly assessed for
24 reasonableness in all the circumstances, applying a heavy measure of deference to counsel's
25 judgments.” Id. at 691.
26

Petitioners claim fails under this standard. The trial judge was able to evaluate Trihey’s

27 credibility and motivations in testifying, expressly found that impeachment of Trihey was not in
28
88

1 issue. (RT 59.) Toton was afforded the opportunity to cross-examine Trihey, both about
2 Petitioner’s statements and any inconsistency therein (RT 51, 54-57), as well published
3 statements by Hernandez and by Seeley which alleged were attributed to Petitioner. (RT 51-53.)
4

The record does not support claimed denial of confrontation and fair trial.

Any

5 confrontation clause error was harmless, for reasons discussed in claims 1-4 there was substantial
6 evidence of guilt even without Trihey’s testimony.
7

The trial court verdict accorded only slight evidentiary value to Trihey’s testimony.

8 Defense counsel Toton successfully argued to minimize the significance of Trihey’s testimony
9 regarding robbery motive. (RT 175-183, 235-236.) Any claim of due process and compulsory
10 process error fails because it is not reasonable to believe any evidence suppressed might have
11 affected the outcome of trial for reasons discussed in claims 1-26.
12

Accordingly, the Court finds that the California Supreme Court’s determination of facts

13 was not unreasonable in light of the evidence, and its rejection of this claim was neither contrary
14 to, nor an unreasonable application of, United States Supreme Court precedent.
15

Claim 27 is denied.

16

6.

Prosecutorial Misconduct in Guilt and Special Circumstances Phase - Claims 28-

17 33
18

In claims 28 through 33, Petitioner alleges instances of prosecutorial misconduct during

19 the guilt and special circumstance phase
20

a.

Clearly Established Law

21

i.

Brady

22

The Supreme Court held that if the state fails to disclose exculpatory evidence in

23 violation of Brady v. Maryland, 373 U.S 83 (1963), the conviction cannot stand if there is a
24 reasonable probability that the evidence, considered cumulatively, would have produced a
25 different result at trial. Kyles v. Whitley, 514 U.S. 419, 441 (1995). There are three components
26 of a Brady violation: (1) the evidence at issue must be favorable to the accused either because it
27 is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the
28
89

1 State either willfully or inadvertently; and (3) prejudice must have ensued. Banks v. Dretke, 540
2 U.S. 668, 691 (2004); Strickler v. Greene, 527 U.S. 263, 281–82 (1999). “Such evidence is
3 material if there is a reasonable probability that, had the evidence been disclosed to the defense,
4 the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, quoting
5 United States v. Bagley, 473 U.S. 667, 682 (1985)). “[T]here is never a real Brady violation
6 unless the nondisclosure was so serious that there is a reasonable probability that the suppressed
7 evidence would have produced a different verdict.” Strickler, 527 U.S. at 281.
8

The Supreme Court has held that a federal court can grant habeas relief on a

9 constitutional trial error claim only if the error had a “substantial or injurious effect” on the
10 verdict. Brecht, 507 U.S. at 637. A new trial is warranted only if prosecutorial misconduct
11 resulted in a fundamental denial of due process. Darden v. Wainwright, 477 U.S. 168, 181
12 (1986). Where the issue is evenly balanced and the judge has doubts about whether the error had
13 a “substantial and injurious effect” on the jury’s verdict, then the judge must treat the error as if
14 it were not harmless. O’Neal v. McAninch, 513 U.S. 432, 435 (1995). In California v. Roy, 519
15 U.S. 2 (1996), the Supreme Court ruled that the Ninth Circuit’s application of a modified O’Neal
16 harmless error standard (“the omission is harmless only if review of the facts found by the jury
17 establishes that the jury necessarily found the omitted element”) was too strict and remanded the
18 case for further consideration in light of Brecht and O’Neal.
19

The Court in Kyles also held that once a habeas petitioner establishes the “reasonable

20 probability” of a different result, the error cannot subsequently be found harmless under Brecht.
21 Kyles, 514 U.S. at 436.
22

ii.

23

A petitioner is entitled to habeas corpus relief if the prosecutor’s misconduct “so infected

Due Process

24 the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly,
25 416 U.S. at 643. To constitute a due process violation, the prosecutorial misconduct must be “of
26 sufficient significance to result in the denial of the defendant’s right to a fair trial.” Greer v.
27 Miller, 483 U.S. 756, 765 (1987) (quoting Bagley, 473 U.S. at 667). “‘Before a federal court
28
90

1 may overturn a conviction resulting from a state trial . . . it must be established not merely that
2 the [State’s action] is undesirable, erroneous, or even ‘universally condemned,’ but that it
3 violated some right which was guaranteed to the defendant by the Fourteenth Amendment.”
4 Smith v. Phillips, 455 U.S. 209, 221 (1982) (quoting Cupp v. Naughten, 414 U.S. 141, 146
5 (1973)).
6

Any claim of prosecutorial misconduct must be reviewed within the context of the entire

7 trial. Greer, 485 U.S. at 765-66; United States v. Weitzenhoff, 35 F.3d 1275, 1291 (9th Cir.
8 1994). The court must keep in mind that “[t]he touchstone of due process analysis in cases of
9 alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor”
10 and “the aim of due process is not punishment of society for the misdeeds of the prosecutor but
11 avoidance of an unfair trial to the accused.” Phillips, 455 U.S. at 219. “Improper argument does
12 not, per se, violate a defendant's constitutional rights.” Thompson v. Borg, 74 F.3d 1571, 1576
13 (9th Cir. 1996) (quoting Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993)). Furthermore,
14 the Supreme Court has stated:
15
16
17
18
19
20
21
22

[A]rguments of counsel generally carry less weight with a jury than do
instructions from the court. The former are usually billed in advance to the jury as
matters of argument, not evidence . . . and are likely viewed as the statements of
advocates; the latter, we have often recognized, are viewed as definitive and
binding statements of the law. Arguments of counsel which misstate the law are
subject to objection and to correction by the court. This is not to say that
prosecutorial misrepresentations may never have a decisive effect on the jury, but
only that they are not to be judged as having the same force as an instruction from
the court. And the arguments of counsel, like the instructions of the court, must be
judged in the context in which they are made.
Boyde v. California, 494 U.S. 370, 384-85 (1990).
If prosecutorial misconduct is established, and it was constitutional error, the error must

23 be evaluated pursuant to the harmless error test set forth in Brecht. See Thompson, 74 F.3d at
24 1577 (“Only if the argument were constitutional error would we have to decide whether the
25 constitutional error was harmless.”).
26

b.

27

In this claim, Petitioner alleges that information tending to undermine the credibility of

Review of Claim 28

28
91

1 jailhouse informant Hernandez, that Hernandez was a heroin addict who gave testimony
2 motivated by Detective Stratton’s offer of a deal over pending heroin and probation violation
3 charges and to avoid being suspected in the Bocanegra murders, was withheld by the
4 prosecution.
5

The California Supreme Court summarily denied claim 28 (SPet. Claims U) raised in

6 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). As noted, in such a
7 case “the habeas petitioner’s burden still must be met by showing there was no reasonable basis
8 for the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
9 arguments or theories supported or . . . could have supported, the state court’s decision; and then
10 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
11 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
12 added).
13

Here the state court could reasonably have found that Petitioner was not prejudiced by

14 alleged prosecution failure to disclose information about jailhouse informant Hernandez. The
15 record in this matter shows that the defense had the benefit of Hernandez’s arrest report and
16 presumptively was aware of his criminal record including any matters relating to substance
17 abuse. (SPet. Ex. 409, pp. 1-2.) The defense was aware of Hernandez plea deal and cross18 examined Hernandez regarding it. (CT 576-577; RT 2850-51.) Facts surrounding Hernandez
19 alleged heroin addiction were equally available to defense counsel through discovery. (CT 65420 676.) See U.S. v. Pelullo, 399 F.3d 197, 202 (3d. Cir. 2005) (Brady challenge fails where
21 information equally available). For the same reason, any alleged omission of Hernandez’s
22 probation status regarding charges plea bargained is unavailing.
23

Petitioner has not made any sufficient showing in the evidentiary record that Hernandez

24 testified falsely by omitting charges covered by plea bargain. These “omitted” charges were
25 resolved outside the plea bargain under which Hernandez testified. (SPet. Ex. 508, p. 6.)
26 Contrary to Petitioner’s assertion, the record reflects that it was Hernandez who initiated contact
27 with the authorities. (RT 2857; CT 576-77; SResp. Ex. C, pp. 1-2.) Petitioner’s allegation that
28
92

1 Hernandez’s testimony was coerced by detective Stratton, and false, fails substantively for
2 reasons discussed in claims 1-4, ante. As discussed in those claims, Hernandez testimony was
3 not inconsistent with the physical evidence. (CT 355, 378-80.) See United States v. Cooper,
4 173 F.3d 1192, 1202 (9th Cir. 1999) (stating that to show Brady error, the petitioner must show
5 that the evidence (1) was exculpatory, (2) should have been but was not produced, and (3) was
6 material to guilt or innocence). Hernandez’s unsigned declaration (SPet. Ex. 101, Att. A) is not
7 evidence otherwise. 28 U.S.C. § 1746.
8

Given the foregoing and the extended cross-examination of Hernandez by Toton and the

9 consistent physical evidence, the state court could reasonably have found it unlikely that
10 allegedly undisclosed evidence would have affected assessment of witness’ credibility and, given
11 Petitioner desire to plead guilty, the result of the proceedings.
12

Respondent contends claim 28 is not cognizable because it creates and retroactively

13 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
14 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
15 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
16

For the reasons stated, a fair-minded jurist could have found that the state court rejection

17 of the claim was neither contrary to, or an unreasonable application of, clearly established federal
18 law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light
19 of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
20

Claim 28 is denied.

21

c.

22

In this next claim, Petitioner alleges that Hernandez’s notes of conversation with

Review of Claim 29

23 Petitioner, which might have provided a basis to impeach Hernandez, were not safeguarded by
24 police and the prosecution and were lost.
25

The California Supreme Court summarily denied claim 29 (SPet. Claims V) raised in

26 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In such a case, “the
27 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
28
93

1 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
2 arguments or theories supported or . . . could have supported, the state court’s decision; and then
3 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
4 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
5 added).
6

According to the court in Arizona v. Youngblood, 488 U.S. 51, 57 (1988) the failure of a

7 state to preserve evidence “of which no more can be said than it could have been subjected to
8 tests, the results of which might have exonerated the defendant,” is not a denial of due process of
9 the law “unless a criminal defendant can show bad faith on the part of the police.”
10

The Ninth Circuit used the Youngblood standard for a claim of bad faith destruction of

11 evidence in U.S. v. Hernandez, 109 F.3d 1450, 1455 (9th Cir. 1997), stating “[t]he mere failure
12 to preserve evidence which could have been subjected to tests which might have exonerated the
13 defendant does not constitute a due process violation”, citing Mitchell v. Goldsmith, 878 F.2d
14 319, 322 (9th Cir. 1989).
15

Where the government fails to preserve evidence that is only potentially exculpatory, the

16 right to due process is violated only if [the evidence] possesses “an exculpatory value that was
17 apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be
18 unable to obtain comparable evidence by other reasonably available means.” California v.
19 Trombetta, 467 U.S. 479, 489 (1984).
20

The state court could reasonably have found there was no bad faith failure to preserve

21 potentially useful evidence. The record does not readily suggest Hernandez made the notes for
22 the prosecution or as their agent, (CT 74, 477-499, 503, 575-577; SResp. Ex. C, pp. 1, 3), or
23 prosecutorial bad faith in failing to take custody of and preserve potentially material evidence.
24 Youngblood, 488 U.S. at 58. Additionally, Petitioner has not demonstrated that the materiality
25 and exculpatory value of such notes was anything more than speculative. (CT 484-487, 503;
26 SResp. Ex. C, p. 3.)
27

Respondent contends claim 29 is not cognizable because it creates and retroactively

28
94

1 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
2 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
3 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
4

For the reasons stated, a fair-minded jurist could have found that the state court rejection

5 of the claim was neither contrary to, or an unreasonable application of, clearly established federal
6 law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light
7 of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
8

Claim 29 is denied

9

d.

10

Review of Claim 30

Petitioner next claims that criminalist Laskowski, who testified to two different sets of

11 footprints during Petitioner’s proceeding, subsequently identified a third set during Reyes’s
12 separate trial for his role in the Bocanegra murders, undermining the prosecution’s argument at
13 Petitioner’s trial that Petitioner and Joey were the only two who struck blows to the victims.
14

The State Supreme Court reviewed this claim in Petitioner state petition for habeas

15 corpus (SPet. Claim X) and summarily denied it. In re Sanchez, S049502 (DD). In such a case,
16 “the habeas petitioner’s burden still must be met by showing there was no reasonable basis for
17 the state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
18 arguments or theories supported or . . . could have supported, the state court’s decision; and then
19 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
20 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
21 added).
22

The knowing use of false or perjured testimony against a defendant to obtain a conviction

23 is unconstitutional. Napue v. Illinois, 360 U.S. 264 (1959). In Napue, the Supreme Court held
24 that the knowing use of false testimony to obtain a conviction violates due process regardless of
25 whether the prosecutor solicited the false testimony or merely allowed it to go uncorrected when
26 it appeared. Id. at 269. The Court explained that the principle that a State may not knowingly
27 use false testimony to obtain a conviction - even false testimony that goes only to the credibility
28
95

1 of the witness - is “implicit in any concept of ordered liberty.” Id.
2

A conviction obtained by the knowing use of perjured testimony “must be set aside if

3 there is any reasonable likelihood that the false testimony could have affected the judgment of
4 the jury.” Bagley, 473 U.S. at 678. Nevertheless, simple inconsistencies in testimony are
5 insufficient to establish that a prosecutor knowingly permitted the admission of false testimony.
6 United States v. Zuno-Arce, 44 F.3d 1420, 1423 (9th Cir. 1995).

“Discrepancies in . . .

7 testimony . . . could as easily flow from errors in recollection as from lies.” Id.
8

To warrant habeas relief, Petitioner must establish that: 1) The testimony was actually

9 false; 2) The prosecution knew or should have known it to be false; and 3) There is a reasonable
10 likelihood that the false testimony could have affected the jury’s verdict. Tayborn v. Scott, 251
11 F.3d 1125, 1130 (7th Cir. 2001).
12

There is no sufficient showing Petitioner was prejudiced by presenting the testimony of

13 criminologist Laskowski regarding the shoe tread pattern photographs taken at the Bocanegra
14 crime scene.

The state court could reasonably have found that, during Petitioner’s trial,

15 Laskowski and prosecutor Ryals were unaware of a third set of different footprints in the
16 Bocanegra home. (CT 376; SResp. Ex. B.) Moreover, there is not a reasonable possibility that
17 testimony of a third set of footprints would have affected the outcome of Petitioner’s trial. See
18 U.S. v. Agurs, 427 U.S. 97, 103 (1976). Reyes admitted he served as lookout and entered the
19 home after the murders to assist Joey and Petitioner. (SResp. Ex. A, pp.3-4; see claim 10, ante.)
20 His bloody palm print was in evidence. (CT 202-203.)
21

Any attempt by defense counsel to argue that Reyes rather than Petitioner struck blows to

22 the victims is rebutted by the record (CT 77-78, 479-84, 487-89, 495, 500-05; RT 181; SPet.
23 Exhs. 700-701) and Petitioner’s express desire to plead guilty. (SPet. Ex. 520, p. 2; see CT 89124 92; RT [5/16/88] 7; RT-108a-155a.) Petitioner’s statements that he assisted Joey in murdering
25 Mr. Bocanegra and Mrs. Bocanegra combined with Petitioner’s desire to plead guilty suggests no
26 reasonable likelihood of a different result had evidence of a third footprint been presented. The
27 state record in this matter does not demonstrate that Reyes guilty plea was prompted by
28
96

1 discovery of the third shoe print. (SPet. Ex. 139, p. 2.)
2

Petitioner fails to demonstrate that no reasonable jurist could have found that he failed to

3 make a prima facie case that the prosecution knowingly used false or perjured evidence with
4 respect to Laskowski’s testimony.
5

Respondent contends claim 30 is not cognizable because it creates and retroactively

6 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
7 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
8 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
9

For the reasons stated, a fair-minded jurist could have found that the state court rejection

10 of these claims was neither contrary to, or an unreasonable application of, clearly established
11 federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts
12 in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
13

Claim 30 is denied.

14

e.

15

Petitioner alleges in this claim that pathologist Holloway’s testimony was untruthful

Review of Claim 31

16 because Dr. Holloway stated at the preliminary hearing that victims’ scalp wounds were
17 “entirely” consistent with one weapon wielded by one person, but later stated at the penalty
18 phase he found only “partial” consistency in these matters.
19

The State Supreme Court reviewed this claim in Petitioner state petition for habeas

20 corpus and alternatively denied it on the merits and as procedurally barred. In re Sanchez,
21 S049502 (DD). In such a case, “the habeas petitioner’s burden still must be met by showing
22 there was no reasonable basis for the state court to deny relief,” Richter, 562 U.S. at 98, and this
23 Court “must determine what arguments or theories supported or . . . could have supported, the
24 state court’s decision; and then it must ask whether it is possible fair-minded jurists could
25 disagree that those arguments or theories are inconsistent with the holding in a prior decision of
26 this Court.” Id. (emphasis added).
27

Petitioner cites to facts alleged in claim 10, ante. He argues that had Holloway testified

28
97

1 truthfully at the preliminary hearing, a three assailant theory might have discredited Hernandez’s
2 testimony that only two assailants struck blows to the victims. However, the Court is not
3 convinced that Dr. Holloway’s erroneous testimony precluded a theory that more than one
4 perpetrator and more than one weapon inflicted the scalp wounds on Mr. Bocanegra and Mrs.
5 Bocanegra; Toton argued as much. (RT 187-191.)
6

Dr. Holloway testified at the preliminary hearing that Mr. Bocanegra’s head wounds were

7 entirely consistent with being inflicted by one person (CT 118-119, 134), similar to Mrs.
8 Bocanegra’s head wounds (CT 118, 155-156, 159), and were consistent with being inflicted by
9 the same type of instrument (CT 118-119), though not necessarily the identical instrument. (CT
10 131-134.)
11

Dr. Holloway later testified at the penalty phase that he had erred, that Mr. Bocanegra’s

12 head wounds were not entirely consistent with Mrs. Bocanegra’s (RT 2704-2706, 2720-2721,
13 2725), that is they were only partially consistent (RT 2721-2722, 2725), and that he could not
14 conclude from the autopsy evidence how many assailants were involved in the attack on Mr.
15 Bocanegra and Mrs. Bocanegra. (SPet. Ex. 120, p.3.)
16

Even so, the state court could reasonably have found that Holloway and prosecutor Ryals

17 were not aware of the error at the preliminary hearing. (SResp. Ex. B.)
18

There is no sufficient showing Petitioner was prejudiced by pathologist Holloway’s

19 erroneous interpretation of scalp wounds of Mr. Bocanegra and Mrs. Bocanegra. The state court
20 could reasonably have found that Holloway’s erroneous testimony that Mr. Bocanegra’s scalp
21 wounds were “entirely” consistent with Mrs. Bocanegra’s did not affect the outcome of
22 Petitioner’s trial. See Agurs, 427 U.S. at 103. Holloway’s preliminary hearing opinion qualified
23 that the scalp wounds were not necessarily caused by the “the identical instrument” (CT 132) and
24 were consistent with being inflicted by one person (CT 134). Holloway’s testimony did not
25 reasonably preclude Toton from arguing use of more than one weapon by more than one
26 perpetrator. (RT 189-191). Moreover, had Dr. Holloway’s modified testimony been presented
27 at the preliminary hearing the outcome would not likely have changed for reasons stated in
28
98

1 claims 1, 3, and 10.
2

Any attempt by defense counsel to argue Reyes rather than Petitioner struck blows to the

3 victims is rebutted by the record (CT 77-78, 479-84, 487-89, 495, 500-505; RT 181; SPet. Exhs.
4 700-701) and Petitioner’s expressed desire to plead guilty. (SPet. Ex. 520, p. 2; CT 891-92; RT
5 [5/16/88] 7; RT- 108a-155a.) A mere inconsistency in testimony does not establish that a
6 prosecutor knowingly permitted the admission of false testimony. Zuno-Arce, 44 F.3d at 1423.
7 Holloway’s erroneous preliminary hearing testimony was corrected at the penalty phase. (SPet.
8 Ex. 120, p. 3.)
9

Respondent contends claim 31 is not cognizable because it creates and retroactively

10 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
11 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
12 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
13

For the reasons stated, a fair-minded jurist could have found that the state court rejection

14 of the claim was neither contrary to, or an unreasonable application of, clearly established federal
15 law, as determined by the Supreme Court, nor an unreasonable determination of the facts in light
16 of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
17

Claim 31 is denied.

18

f.

19

Petitioner claims here that prosecutor Ryals’ falsely argued the two assailant theory when

Review of Claim 32

20 the evidence (i.e., the third set of footprints and a bloody palm print on the doorknob and
21 information from Seeley) supported Reyes’s presence in the Bocanegra home.
22

This claim was reached and summarily denied in Petitioner’s state petition for habeas

23 corpus (SPet. Claim Z). In re Sanchez, S049502 (DD). In such a case, “the habeas petitioner’s
24 burden still must be met by showing there was no reasonable basis for the state court to deny
25 relief,” Richter, 562 U.S. at 98, and this Court “must determine what arguments or theories
26 supported or . . . could have supported, the state court’s decision; and then it must ask whether it
27 is possible fair-minded jurists could disagree that those arguments or theories are inconsistent
28
99

1 with the holding in a prior decision of this Court.” Id. (emphasis added).
2

The California Supreme Court declined to reach the claim that Prosecutor Ryals

3 committed such prejudicial misconduct in her guilt phase closing argument because the asserted
4 evidence of misconduct, allegedly contrary statements by prosecutor Ryals to the court during
5 subsequent, separate pretrial hearings in the prosecution of Reyes, were not within the appellate
6 record or matters judicially noticed. This Court cannot consider evidence outside the state
7 record. Pinholster, 131 S. Ct. at 1398. Even if it could, evidence proffered in the Reyes
8 proceeding was not necessarily inconsistent with the prosecution’s two assailant theory in this
9 action. See People v. Robert Gabriel Reyes, Kern County Superior Court case number 34638,
10 RT [10/3/91] 2-3, SResp. Ex. A.
11

The state court could reasonably have determined that Petitioner was not prejudiced by

12 the prosecution’s two assailant argument for reasons discussed in claims 1-4 and 28-31. The
13 prosecution could rely upon inference from trial court evidence that supported the two person
14 theory, i.e., that only Joey and Petitioner were in the Bocanegra home at the time of the murders.
15 Notably, Petitioner did not challenge the evidence demonstrating that he struck Mr. Bocanegra
16 (CT 481-82; RT 169, 184-185, 188, 196; RT 207) and that he grabbed Mrs. Bocanegra and told
17 Joey to “shut her up” (CT 482-83, 504; RT 190-191). Evidence that, at some point, Reyes was
18 present in the house does not necessarily establish his participation in the murders. (See CT 20219 203.)
20

Additionally, no theory inconsistent with the two assailant theory was advanced in

21 Reyes’s separate criminal proceedings. Reyes pled guilty in his criminal proceeding on the
22 theory he participated in the Bocanegra murders only by acting as a lookout during the murders
23 and then assisting Joey and Petitioner after the murders. See People v. Robert Gabriel Reyes,
24 Kern County Superior Court Case No. 34638, RT [10/3/91] 2-3; SResp. Ex. A. Even if there
25 were inconsistencies in testimony regarding the Reyes involvement in the Bocanegra murders,
26 inconsistencies alone are not sufficient to establish that the prosecutor knowingly permitted the
27 admission of false testimony. Zuno-Arce, 44 F.3d at 1423.
28
100

1

The Court does not find that Petitioner’s trial was fundamentally unfair.

The two

2 assailant theory was consistent with the evidence at the guilt and special circumstance phase and
3 inference therefrom and was not objected to by Toton. (RT 147-149, 191, 211-12; claims 1, 3,
4 10.) See Donnelly, 416 U.S. at 647-48 (1974) (improper jury argument by the state does not
5 present a claim of constitutional magnitude unless it is so prejudicial that the petitioner’s trial
6 was fundamentally unfair . . . [t]o establish prejudice, the petitioner must demonstrate either
7 persistent and pronounced misconduct or that the evidence was so insubstantial that, in all
8 probability, but for the remarks, no conviction would have occurred); see also Darden, 477 U.S.
9 at 182 (claim of prosecutorial misconduct rejected where the prosecutor’s comments “did not
10 manipulate or misstate the evidence, nor . . . implicate other specific rights of the accused, such
11 as the right to counsel or to remain silent.”). For the reasons stated in claims 1-4, the weight of
12 evidence against Petitioner was not insubstantial.
13

Respondent also contends claim 32 is not cognizable because it creates and retroactively

14 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
15 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
16 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
17

Accordingly, a fair-minded jurist could have found that the state court rejection of the

18 claim was neither contrary to, or an unreasonable application of, clearly established federal law,
19 as determined by the Supreme Court, nor an unreasonable determination of the facts in light of
20 the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
21

g.

22

In this next claim, Petitioner alleges cumulative error from prosecutorial misconduct.

23

This claim was reached and summarily denied in Petitioner’s state petition for habeas

Review of Claim 33

24 corpus (SPet. Claim AA). In re Sanchez, S049502 (DD). In such a case, “the habeas petitioner’s
25 burden still must be met by showing there was no reasonable basis for the state court to deny
26 relief,” Richter, 562 U.S. at 98, and this Court “must determine what arguments or theories
27 supported or . . . could have supported, the state court’s decision; and then it must ask whether it
28
101

1 is possible fair-minded jurists could disagree that those arguments or theories are inconsistent
2 with the holding in a prior decision of this Court.” Id. (emphasis added).
3

Petitioner cites to facts alleged in claims 28-32, ante, in support of this claim. However,

4 the Court finds Petitioner has not made a sufficient showing of prejudiced by cumulative error
5 from prosecutorial misconduct. The state court could reasonably have found that Petitioner
6 failed to established prosecutorial misconduct causing him prejudice for the reasons discussed
7 above in claims 28-32. These claims are insubstantial when considered cumulatively. See
8 Karterman, 60 F.3d at 580; see also Rupe, 93 F.3d at 1445. Petitioner has not then established a
9 reasonable probability that the evidence of alleged prosecutorial error, considered cumulatively,
10 would have produced a different result at trial.
11

Respondent contends claim 33 is not cognizable because it creates and retroactively

12 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
13 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
14 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
15

Accordingly, for the reasons stated, a fair-minded jurist could have found that the state

16 court rejection of the claim was neither contrary to, or an unreasonable application of, clearly
17 established federal law, as determined by the Supreme Court, nor an unreasonable determination
18 of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. §
19 2254(d).
20

Claim 33 is denied.

21

7.

Cumulative Error in Guilt and Special Circumstance Phase – Claim 34

22

a.

Clearly Established Law

23

The applicable legal standard is set forth above, in the Court’s analysis of claim 18.

24

b.

25

In this next claim, Petitioner alleges that constitutional violations during the guilt and

Review of Claim 34

26 special circumstance phase, claims 1 through 33, ante, when considered together and taken as a
27 whole, prejudicially caused an unfair guilt trial, in violation of the Fifth, Sixth, Eighth and
28
102

1 Fourteenth Amendments.
2

The California Supreme Court summarily denied claim 34 (SPet. Claim BB) raised in

3 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
4

The state supreme court also considered this claim on appeal and rejected it noting:

5
6
7
8
9

Defendant contends his conviction should be reversed because of the cumulative
effect of the alleged guilt phase errors. He relies on the California Constitution,
article I, section 15, and the Sixth and Fourteenth Amendments to the United
States Constitution.
Contrary to defendant's contention, however, he has not sustained any of his
claims of error. Accordingly, we find no cumulative deficiency in the guilt
phase proceedings to support reversal. [Citation]

10 Sanchez, 12 Cal.4th, at 60.
11

Where none of the alleged claims state a violation of constitutional law, there is no reason

12 to grant habeas relief based on cumulative error. Rupe, 93 F.3d at 1445. For the reasons stated
13 in claims 1-33 above, this Court finds claim 34 fails substantively for reasons discussed in claims
14 1-33.
15

Respondent also contends claim 34 is not cognizable because it creates and retroactively

16 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
17 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
18 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
19

Accordingly, the state court rejection of claim 34 was not contrary to, or an unreasonable

20 application of, clearly established federal law, as determined by the Supreme Court. Nor was the
21 state court's ruling based on an unreasonable determination of the facts in light of the evidence
22 presented in the state court proceeding. See 28 U.S.C. § 2254(d).
23

Claim 34 is denied.

24

8.

State Appellate Review of Guilt and Special Circumstance Phase – Claim 35

25

a.

Clearly Established Law

26

A habeas petition must allege that the petitioner's detention violates the Constitution, a

27 federal statute, or a treaty. 28 U.S.C. § 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21 (1975). No
28
103

1 constitutional provision or federal law entitles Petitioner to any state collateral review.
2 Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). As the Ninth Circuit and nearly all other
3 circuit courts have found, “federal habeas relief is not available to redress alleged procedural
4 errors in state post-conviction proceedings.” Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998);
5 Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (“a petition alleging errors in the state post6 conviction review process is not addressable through habeas corpus proceedings”); Williams v.
7 State of Mo., 640 F.2d 140, 143 (8th Cir. 1981) (infirmities in the state's post-conviction remedy
8 procedure cannot serve as a basis for setting aside a valid original conviction); Hassine v.
9 Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (“[T]he federal role in reviewing an application
10 for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that
11 actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding
12 does not enter into a habeas calculation.”); Morris v. Cain, 186 F.3d 581, 585 n.6 (5th Cir. 1999)
13 (finding that “errors in state post-conviction proceedings will not, in and of themselves, entitle a
14 petitioner to federal habeas relief”); Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988)
15 (“claims of error occurring in a state post-conviction proceeding cannot serve as a basis for
16 federal habeas corpus relief”); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987); Kirby
17 v. Dutton, 794 F.2d 245, 247-48 (6th Cir. 1986); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th
18 Cir. 1987).
19

The Supreme Court has stated that “when a State chooses to offer help to those seeking

20 relief from convictions,” due process does not “dictat[e] the exact form such assistance must
21 assume.” Finley, 481 U.S. at 559. Since the petitioner has already been found guilty at a fair
22 trial, he has only a limited due process interest in post-conviction relief. Dist. Attorney's Office
23 for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009).

“[T]he question is whether

24 consideration of [defendant’s] claim within the framework of the State's procedures for post25 conviction relief “offends some principle of justice so rooted in the traditions and conscience of
26 our people as to be ranked as fundamental,” or “transgresses any recognized principle of
27 fundamental fairness in operation.” Id. (quoting Medina v. California, 505 U.S. 437, 446, 448
28
104

1 (1992). “Federal courts may upset a State's post-conviction relief procedures only if they are
2 fundamentally inadequate to vindicate the substantive rights provided.” Id.
3

Accordingly, a claim challenging the adequacy of state appellate review is not cognizable

4 on federal habeas. Under well-established principles of law and comity, a federal court has no
5 jurisdiction over state courts to assess the adequacy or competence of their review since appellate
6 review is not constitutionally required.

Evitts v. Lucey, 469 U.S. 387, 393 (1985) (citing

7 McKane v. Durston, 153 U.S. 684 (1894)); see also Franzen v. Brinkman, 877 F.2d 26 (9th Cir.
8 1989) (federal habeas court may not review a petition alleging errors in the state post-conviction
9 review process). The federal constitution only requires that an appellate forum be accessible and
10 available to all, regardless of economic status, once a state establishes a right to appeal. Lucey,
11 469 U.S. at 393-94.
12

b.

13

Petitioner alleges in this claim that the California Supreme Court affirmed his conviction

Review of Claim 35

14 and sentence on the basis of material misstatements and omissions of issues and facts, and then
15 denied rehearing, violating his Fifth, Sixth, Eighth and Fourteenth Amendment rights.
16

The state supreme court considered this claim in the petition for rehearing. That court

17 issued a modification opinion upon denial of rehearing (see 12 Cal. 4th 825b), corrected errors
18 and withdrew the “Alleged Prosecutorial Misconduct” section of its opinion.
19

Petitioner alleges that the state supreme court erred by not re-assessing or re-analyzing

20 legal issues in light of the modification.
21

Appellate review of California’s capital cases is authorized by California Penal Code

22 sections 190.4(e) and 1239(b).

At the time of Petitioner’s trial, section 1239(b) provided,

23 “[w]hen upon any plea a judgment of death is rendered, an appeal is automatically taken by the
24 defendant without any action by him or his counsel.” Even where defendant’s counsel takes no
25 action, California’s high court has a duty to examine the complete trial record to “ascertain[]
26 whether defendant was given a fair trial.” People v. Perry, 14 Cal. 2d 387, 392 (1939).
27

Section 190.4 provides an automatic application for modification of a verdict imposing

28
105

1 the death penalty, by which the trial judge reviews the evidence and reweighs the section 190.3
2 aggravating and mitigating circumstances before imposing sentence based on the jury’s verdict.
3 Denial of modification of a verdict of death is reviewed on the automatic appeal pursuant to
4 section 1293(b). Such review includes the “evidence relied on by the [trial] judge.” Pulley, 465
5 U.S. at 53 (quoting People v. Frierson, 25 Cal. 3d 142, 179 (1979)) (“the statutory requirements
6 that the jury specify the special circumstances which permit imposition of the death penalty, and
7 that the trial judge specify the reasons for denying the modification of the death penalty, serve to
8 assure thoughtful and effective appellate review, focusing upon the circumstances present in
9 each particular case.”).
10

Aside from the state statutory duty to examine the complete trial record for fairness and

11 the federal constitutional requirement that an appeal be available to indigent appellants, there are
12 no obligations placed on the California Supreme Court that could cause a violation of an
13 appellant’s federal constitutional rights. Sections 190.4(e) and 1239(b), and the cases construing
14 them, provide the mechanism for meaningful appellate review.
15

Petitioner alleges misstatements regarding the Bocanegra murders; misstatements and

16 omissions regarding disciplinary proceedings against Toton; misstatements and omissions
17 regarding reporter immunity under California Shield Law; misstatements regarding alleged
18 prosecutorial misconduct; and other misstatements and omissions.

Nonetheless, the state

19 supreme court’s affirmance was based on its modified opinion. Reasonably implicit in the
20 modified opinion is that court’s re-examination of the issues underlying its issuance of the
21 modified opinion.
22

Additionally, Petitioner has not made a showing on the evidentiary record that the

23 modified opinion contained any misstatements or omission. In that no material misstatements or
24 omissions are identified in the modified opinion, and given that court’s adjudication of all
25 Plaintiff’s claims on the merits, this Court cannot find the state supreme court’s determination of
26 facts to be unreasonable or unfair on the record before it.
27

Respondent contends claim 35 is not cognizable because it creates and retroactively

28
106

1 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
2 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
3 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
4

Accordingly, the state court rejection of claim 35 was not contrary to, or an unreasonable

5 application of, clearly established federal law, as determined by the Supreme Court. Nor was the
6 state court's ruling based on an unreasonable determination of the facts in light of the evidence
7 presented in the state court proceeding. See 28 U.S.C. § 2254(d).
8

Claim 35 is denied.

9

9.

Constitutionality of California Death Penalty – Claim 36

10

a.

Clearly Established Law

11

Supreme Court cases have established that a state capital sentencing system must: “(1)

12 rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a
13 reasoned, individualized sentencing determination based on a death-eligible defendant's record,
14 personal characteristics, and the circumstances of his crime.” Kansas v. Marsh, 548 U.S. 163,
15 173-74 (2006). If the “state system satisfies these requirements,” then the “State enjoys a range
16 of discretion in imposing the death penalty, including the manner in which aggravating and
17 mitigating circumstances are to be weighed.” Id. (citing Franklin v. Lynaugh, 487 U.S. 164, 179
18 (1988) and Zant v. Stephens, 462 U.S. 862, 875–876, n.13 (1983)).
19

A state may narrow the class of murderers eligible for the death penalty by defining

20 degrees of murder. Sawyer v. Whitley, 505 U.S. 333, 342 (1992). A state may further narrow
21 the class of murderers by finding “beyond a reasonable doubt at least one of a list of statutory
22 aggravating factors.” Id.; see also Gregg, 428 U.S. at 196-97.
23

b.

24

In this claim Petitioner alleges that California’s death penalty scheme in effect in 1987

Review of Claim 36

25 was unconstitutional because it was arbitrary and unpredictable, failing to genuinely narrow class
26 of murders eligible for the death penalty, violating his Eighth and Fourteenth Amendment rights.
27

The California Supreme Court summarily denied claim 34 (SPet. Claim YY) raised in

28
107

1 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
2

The state supreme court also considered this claim on appeal, as follows:

3
4
5
6
7
8
9
10
11
12
13
14
15
16

Defendant contends that the 1978 death penalty law is unconstitutional under the
United States and California Constitutions because it fails to narrow the class of
death-eligible murderers and thus renders “the overwhelming majority of
intentional first degree murderers” death eligible. Defendant cites statistics of all
first degree murder convictions in which a defendant was found death eligible,
and concludes: “The vice of the California scheme is not that any one of the
special circumstances taken alone is unconstitutional-each arguably identifies a
subclass of all first degree murders more deserving of the death penalty than other
members of the class. The vice is that, taken together, the special circumstances
cover virtually all first degree murders (and a substantial majority of all murders),
and, thus, they perform no narrowing function at all.” Principally, defendant relies
on Justice Blackman's dissent in Tuilaepa v. California, (1994) 512 U.S. ---, --[129 L.Ed.2d 750, 767-774, 114 S. Ct. 2630], in which he stated: “By creating
nearly 20 such special circumstances, California creates an extraordinarily large
death pool.” Id.
We have repeatedly considered and rejected this identical claim beginning with
our decision in People v. Rodriguez (1986) 42 Cal.3d 730, 770-779. [Citation]
Moreover, in Tuilaepa, supra, and in a number of previous cases, the high court
has recognized that “the proper degree of definition” of death-eligibility factors
“is not susceptible of mathematical precision”; the court has confirmed that our
death penalty law avoids constitutional impediments because it is not
unnecessarily vague, it suitably narrows the class of death-eligible persons, and
provides for an individualized penalty determination. [Citation] Defendant's
argument fails to convince us to revisit the issue. [Citation]

17 Sanchez, 12 Cal.4th at 60-61. In addition, the state supreme court has further held that:
18
19
20
21
22
23

California's scheme for death eligibility satisfies the constitutional requirement
that it “not apply to every defendant convicted of a murder[, but only] to a
subclass of defendants convicted of murder. [Citation.]” Even after 1990 additions
by virtue of Propositions 114 and 115, the special circumstances set forth in the
statute are not over inclusive by their number or terms. [Citation] Nor have the
statutory categories been construed in an unduly expansive manner. [Citation]
Having been found guilty of an intentional murder in the course of a robbery,
defendant falls within the “subclass” of murderers who are eligible for the death
penalty. [Citation]

24 People v. Arias, 13 Cal.4th 92, 186-87 (1996) (citing Harris, 465 U.S. at 53) (upholding 1977
25 death penalty law).
26

Petitioner claims most of those who could be convicted of first degree murder are

27 statutorily eligible for the death penalty, yet only a small portion of murderers who are statutorily
28
108

1 eligible for the death penalty are actually sentenced to death.
2

However, in California, a defendant may be sentenced to death for first-degree murder if

3 the trier of fact finds the defendant guilty and also finds true one or more of [then] 19 special
4 circumstances listed in Cal. Penal Code § 190.2. As relevant here, one of the circumstances is:
5 “[t]he defendant, in this proceeding, has been convicted of more than one offense of murder in
6 the first or second degree.” Cal. Penal Code § 190.2(a)(3). There is no question that this
7 sentencing scheme satisfies clearly established constitutional requirements. First, the subclass of
8 defendants eligible for the death penalty is rationally narrowed to those who have committed
9 multiple murders. Tuilaepa, 512 U.S. at 969-73. The multiple murder special circumstance
10 sufficiently guides the sentencer and is not unconstitutionally vague. See Godfrey v. Georgia,
11 446 U.S. 420, 428 (1980) (the sentencer’s discretion must be guided by “clear and objective
12 standards.”).
13

In California v. Ramos, 463 U.S. 992 (1983), the United States Supreme Court stated that

14 “[o]nce the jury finds that the defendant falls within the legislatively defined category of persons
15 eligible for the death penalty” the jury’s consideration of a myriad of factors and exercise of
16 “unbridled discretion” in determining whether death is the appropriate punishment is not
17 arbitrary and capricious. Id. at 1008-09. At the selection stage, an individualized determination
18 includes consideration of the character and record of the defendant, the circumstances of the
19 crime, and an assessment of the defendant’s culpability.

Tuilaepa, 512 U.S. at 972-73.

20 However, the jury “need not be instructed how to weigh any particular fact in the capital
21 sentencing decision.” Id. at 979.
22

This Court finds that state supreme court could reasonably have determined that

23 California’s death penalty scheme in effect in 1987 did not fail to genuinely narrow the class of
24 murderers eligible for the death penalty. California’s scheme, which narrows the class of death
25 eligible offenders to less than the definition of first degree murder and permits consideration of
26 all mitigating evidence, has been approved by the United States Supreme Court, Tuilaepa, 512
27 U.S. at 972-79; Harris, 465 U.S. at 38, and this Court, see Ben-Sholom v. Woodford, Case No.
28
109

1 CV-F-93-5531 (E.D. Cal. October 5, 2001).
2

The state court rejection of this claim was not contrary to, or an unreasonable application

3 of, clearly established federal law, as determined by the Supreme Court. Nor was the state
4 court's ruling was based on an unreasonable determination of the facts in light of the evidence
5 presented in the state court proceeding, viewed most favoring the prosecution, Jackson, 443 U.S.
6 at 319. See 28 U.S.C. § 2254(d).
7

Claim 36 is denied.

8

10.

Prosecutorial Misconduct In The Penalty Phase – Claims 37 through 42

9

a.

Clearly Established Law

10

The legal standard is set out in the preface to claims 28-32.

11

b.

12

Petitioner next claims prosecutorial misconduct in using, failing to correct and arguing

Review of Claim 37

13 false evidence by Bakersfield Police Detective Boggs.
14

The California Supreme Court summarily denied claim 37 (SPet. Claim CC) raised in

15 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
16

The California Supreme Court also considered and rejected this claim on appeal, finding

17 that the defense had waived the issue on appeal, Sanchez, 12 Cal.4th 65-66, and that the record
18 did not support the claim because it was “simply a disagreement as to the interpretation of the
19 evidence, and in no way indicates that Ryals encouraged or elicited false testimony from Boggs.”
20 Sanchez, 12 Cal.4th at 71.
21

As discussed above, the knowing use of false or perjured testimony against a defendant to

22 obtain a conviction is unconstitutional. Napue v. Illinois, 360 U.S. 264 (1959). In Napue, the
23 Supreme Court held that the knowing use of false testimony to obtain a conviction violates due
24 process regardless of whether the prosecutor solicited the false testimony or merely allowed it to
25 go uncorrected when it appeared. Id. at 269. The high court explained that the principle that a
26 State may not knowingly use false testimony to obtain a conviction - even false testimony that
27 goes only to the credibility of the witness - is “implicit in any concept of ordered liberty.” Id. A
28
110

1 conviction obtained by the knowing use of perjured testimony “must be set aside if there is any
2 reasonable likelihood that the false testimony could have affected the judgment of the jury.”
3 Bagley, 473 U.S. at 678. Nevertheless, simple inconsistencies in testimony are insufficient to
4 establish that a prosecutor knowingly permitted the admission of false testimony. Zuno-Arce, 44
5 F.3d at 1423.

“Discrepancies in . . . testimony . . . could as easily flow from errors in

6 recollection as from lies.” Id. To warrant habeas relief, Petitioner must establish that: 1) the
7 testimony was actually false; 2) the prosecution knew or should have known it to be false; and 3)
8 there is a reasonable likelihood that the false testimony could have affected the jury’s verdict.
9 Tayborn, 251 F.3d at 1130.
10

In this claim, Petitioner alleges that Boggs, testifying at the penalty phase, falsely

11 attributed to Petitioner a statement actually made by Reyes, that after the Tatman murder he
12 “kicked back, drank some whiskey, smoked some dope, ate some food, and mostly relaxed for
13 the rest of the evening.” (RT 2663-2664.) Though Boggs correctly attributed the statement to
14 Reyes at the preliminary hearing (CT 308), Petitioner contends that prosecutor Ryals did not
15 correct the false testimony at the penalty phase, instead using it to highlight Petitioner’s lack of
16 remorse. (RT 2619, 3036.)
17

The evidence before the state court did not reasonably suggest Boggs knowingly testified

18 falsely, or that Prosecutor Ryals was aware of the errant testimony. (SResp. Ex. B.) Boggs
19 states in his June 29, 1995 declaration that he mistakenly testified at the penalty phase that
20 Petitioner, rather than Robert Reyes, stated that:
21
22
23

They returned to their own room and just, again in his own words, kicked back,
drank some whiskey, smoked some dope, ate some food, and just relaxed for the
rest of the evening.

24 SPet. Ex. 100. The state court could reasonably have determined that Prosecutor Ryals did not
25 know that Boggs’s testimony was erroneous and did not knowingly rely on erroneous testimony.
26 (SResp. Ex. B.) Petitioner has not pointed to evidence before the state court demonstrating either
27 Ryals or Boggs was aware of the error in Boggs’s testimony. Defense counsel Toton and Frank,
28
111

1 who both were present at the preliminary hearing, were themselves unaware of the erroneous
2 testimony. (SPet. Exhs. 137, p. 12; 113, p. 10.)
3

Nor does there appear to be a reasonable likelihood the error affected imposition of the

4 death penalty, see Agurs, 427 U.S. at 103, or made trial so fundamentally unfair as to deny due
5 process. Donnelly, 416 U.S. at 645. The Court concurs in Respondent’s argument that it is
6 unlikely the erroneous testimony undercut juror sympathy for Petitioner given Petitioner’s
7 confession to Boggs of the circumstances of the Tatman murder, that Petitioner decided to “hit
8 the old man” and take his food and refrigerator, that he and Reyes entered Mr. Tatman’s room,
9 that Reyes made stabbing motions at Tatman with a screwdriver, and that Petitioner stole Mr.
10 Tatman’s possessions after witnessing his murder. (RT 2658-2666; SPet. Ex. 129, pp. 1-2.)
11

For these reasons, the state court rejection of the claim was not contrary to, or an

12 unreasonable application of, clearly established federal law, as determined by the Supreme
13 Court, or based on an unreasonable determination of the facts in light of the evidence presented
14 in the state court proceeding viewed most favoring the prosecution, Jackson, 443 U.S. at 319.
15 See 28 U.S.C. § 2254(d).
16

Claim 37 is denied.

17

c.

18

Petitioner next claims prosecutorial misconduct in using false evidence at penalty phase

Review of Claim 38

19 by Criminalist Laskowski. He alleges that Laskowski falsely testified at the penalty phase, as he
20 did in the guilt and special circumstance phase, that there were only two sets of footprints at the
21 Bocanegra home after the murders, only later discovering a third set of footprints. Petitioner
22 further argues that, as at the guilt and special circumstance phase, prosecutor Ryals used a two23 person theory to linking Petitioner to the murders.
24

The California Supreme Court summarily denied claim 38 (SPet. Claim DD) raised in

25 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In such a case, “the
26 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
27 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
28
112

1 arguments or theories supported or . . . could have supported, the state court’s decision; and then
2 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
3 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
4 added).
5

Napue established that the knowing use of false or perjured testimony against a defendant

6 to obtain a conviction is unconstitutional. A conviction obtained by the knowing use of perjured
7 testimony “must be set aside if there is any reasonable likelihood that the false testimony could
8 have affected the judgment of the jury.”

Bagley, 473 U.S. at 678.

Nevertheless, simple

9 inconsistencies in testimony are insufficient to establish that a prosecutor knowingly permitted
10 the admission of false testimony. Zuno-Arce, 44 F.3d at 1423. “Discrepancies in . . . testimony .
11 . . could as easily flow from errors in recollection as from lies.” Id. To warrant habeas relief,
12 Petitioner must establish that: 1) the testimony was actually false; 2) the prosecution knew or
13 should have known it to be false; and 3) there is a reasonable likelihood that the false testimony
14 could have affected the jury’s verdict. Tayborn, 251 F.3d 1125 at1130.
15

Petitioner cites to facts alleged in claims 30 and 32 in support of this claim. However,

16 the state court could reasonably have found that the claim lacks merit. At the preliminary
17 hearing (CT 376) and at the penalty phase of Petitioner’s trial (RT 2813), Laskowski testified he
18 was able to determine from crime scene photographs that there were two types of shoes in the
19 kitchen. The following year he re-examined the photographs and determined that there were
20 three types of shoe patterns in the kitchen and outside the Bocanegra home. (SPet. Ex. 121, p. 2;
21 Ex. 417, pp. 1-2; SHCP Ex. 137, Ex. A.)
22

However, Petitioner does not make an evidentiary showing that either Laskowski or

23 Ryals knew of the error at the time of the penalty phase.

The Court finds that the Claim fails

24 substantively for reasons stated in Claims 30 and 32, ante. The state court could reasonably
25 conclude that neither Laskowski nor Ryals knew the former’s interpretation was erroneous.
26

Nor is there a reasonable likelihood the erroneous testimony affected the jury’s

27 imposition of the death penalty, see Agurs, 427 U.S. at 103, or made trial so fundamentally
28
113

1 unfair as to deny due process. Donnelly, 416 U.S. at 645. The evidence against Petitioner was
2 substantial as discussed in claims 30 and 32.
3

A fair-minded jurist could conclude from the evidence and statements Petitioner made to

4 Hernandez and Trihey, that Petitioner assisted Joey in murdering Mr. Bocanegra and Mrs.
5 Bocanegra (RT 2843-45, 2851-54, 2856-59) and that he desired to enter a guilty plea. (SPet. Ex.
6 520, p. 2; see CT 891-92; RT [5/16/88] 7; RT-108a-155a.) Evidence suggesting the presence of
7 a third non-victim in the Bocanegra Home does not does demonstrate or suggest a third person
8 was present during the murders. (See claim 30, 32, ante.)
9

The Court finds the state court rejection of the claim was not contrary to, or an

10 unreasonable application of, clearly established federal law, as determined by the Supreme
11 Court. Nor was the state court's ruling was based on an unreasonable determination of the facts
12 in light of the evidence presented in the state court proceeding, viewed most favoring the
13 prosecution, Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
14

Claim 38 is denied.

15

d.

16

Petitioner next alleges prosecutorial misconduct through use of false evidence at the

Review of Claim 39

17 penalty phase by Pathologist Holloway. He alleges that Holloway falsely testified at the penalty
18 phase that Mr. Bocanegra’s head wounds were a “contributory cause” of death, contradicting his
19 guilt phase testimony and prosecutor Ryals argument based thereon that head wounds neither
20 caused nor contributed to Mr. Bocanegra’s death. Petitioner claims Ryals knew or should have
21 known this testimony was false.
22

The California Supreme Court summarily denied claim 39 (SPet. Claim EE) raised in

23 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
24

The State Supreme Court also considered this claim on appeal and found that:

25

[T]the prosecutor did not commit misconduct in failing to correct Dr. Holloway's
characterization of the nonfatal scalp wounds to Juan Bocanegra as a
“contributory cause” rather than an “other condition” of death. The
characterization of the scalp wounds as contributing to Juan's death was
minimally significant to the jury's assessment of defendant's culpability in the
murders. The facts showed that defendant struck disabling blows to the victim's

26
27
28

114

1
2
3

head while Joey was stabbing him. Moreover, any misperceptions of the cause of
Juan's death were corrected by the prosecutor's opening statement that the wounds
inflicted by defendant with a metal bar, “were not the actual blows that killed the
man. They were only a part of what killed the man. The actual blow to the man
was the stab wound inflicted by his son while defendant was beating him in the
head with an iron pipe.”

4
5 Sanchez, 12 Cal.4th at 71.
6

Under Napue the knowing use of false or perjured testimony against a defendant to obtain

7 a conviction is unconstitutional.

A conviction obtained by the knowing use of perjured

8 testimony “must be set aside if there is any reasonable likelihood that the false testimony could
9 have affected the judgment of the jury.”

Bagley, 473 U.S. at 678.

Nevertheless, simple

10 inconsistencies in testimony are insufficient to establish that a prosecutor knowingly permitted
11 the admission of false testimony. Zuno-Arce, 44 F.3d at 1423. “Discrepancies in . . . testimony
12 . . . could as easily flow from errors in recollection as from lies.” Id. To warrant habeas relief,
13 Petitioner must establish that: 1) the testimony was actually false; 2) the prosecution knew or
14 should have known it to be false; and 3) there is a reasonable likelihood that the false testimony
15 could have affected the jury’s verdict. Scott, 251 F.3d at 1130.
16

Here, Dr. Holloway’s testimony was consistent from preliminary hearing through penalty

17 phase that Mr. Bocanegra died from three fatal stab wounds to the torso. (RT 2697, 2699-2700.)
18 Prosecutor Ryals argued as much in her opening statement. (RT 2620.) Holloway’s preliminary
19 hearing characterization of scalp wounds as an “other condition” attendant to fatal stab wounds,
20 (CT 112-119, 158-59), and Holloway’s penalty phase characterization of the same scalp wounds
21 as a “contributory cause” attendant to fatal stab wounds, (RT 2706), was not erroneous because
22 Holloway used the terms interchangeably to characterize non-fatal wounds. (SPet. Ex. 120, pp.
23 1-4.) The same applies to Mrs. Bocanegra, who also suffered scalp wounds but died from stab
24 wounds. (CT 115-117, 153-154.)
25

For the reasons stated and those discussed in Claims 31 and 32, it is not reasonably

26 likely Holloway’s characterization of Mr. Bocanegra’s head wounds as either “other conditions”
27 or a “contributory cause” misled the jury in its assessment of Petitioner’s culpability. The state
28
115

1 court was not unreasonable in concluding that:
2
3
4
5
6
7

“The characterization of the scalp wounds as contributing to Juan’s death was
minimally significant to the jury’s assessment of defendant’s culpability in the
murders. The facts showed that defendant struck disabling blows to the victim’s
head while Joey was stabbing him. Moreover, any misperceptions of the cause of
Juan’s death were corrected by the prosecutor’s opening statement that the
wounds inflicted by defendant with a metal bar, were not the actual blows that
killed the man. They were only a part of what killed the man. The actual blow to
the man was the stab wound inflicted by his son while defendant was beating him
in the head with an iron pipe.”

8 Sanchez, 12 Cal.4th at 71.
9

A fair-minded jurist could conclude from the evidence and statements Petitioner made to

10 Hernandez and Trihey, that Petitioner assisted Joey in murdering Mr. Bocanegra and Mrs.
11 Bocanegra (RT 2843-45, 2851-54, 2856-59) and that he desired to enter a guilty plea. (SPet. Ex.
12 520, p. 2; see CT 891-92; RT [5/16/88] 7; RT-108a-155a.)
13

Respondent contends claim 39 is not cognizable because it creates and retroactively

14 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
15 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
16 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
17

This Court does not find that the state court rejection of the claim was contrary to, or an

18 unreasonable application of, clearly established federal law, as determined by the Supreme
19 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
20 light of the evidence presented in the state court proceeding, viewed most favoring the
21 prosecution, Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
22

Claim 39 is denied.

23

e.

24

In his next claim, Petitioner alleges prosecutorial misconduct by failure to disclose

Review of Claim 40

25 exculpatory evidence and using false evidence by Hernandez at the penalty phase.
26

The California Supreme Court summarily denied claim 40 (SPet. Claims FF) raised in

27 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In such a case, “the
28
116

1 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
2 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
3 arguments or theories supported or . . . could have supported, the state court’s decision; and then
4 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
5 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
6 added).
7

As noted, there are three components of a Brady violation: (1) the evidence at issue must

8 be favorable to the accused either because it is exculpatory or because it is impeaching; (2) the
9 evidence must have been suppressed by the State either willfully or inadvertently; and (3)
10 prejudice must have ensued. Banks, 540 U.S. at 691; Strickler, 527 U.S. at 281–82. “Such
11 evidence is material if there is a reasonable probability that, had the evidence been disclosed to
12 the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280,
13 (quoting Bagley, 473 U.S. 667, 682 (1985)). “[T]here is never a real Brady violation unless the
14 nondisclosure was so serious that there is a reasonable probability that the suppressed evidence
15 would have produced a different verdict.” Strickler, 527 U.S. at 281.
16

Additionally, under Napue the knowing use of false or perjured testimony against a

17 defendant to obtain a conviction is unconstitutional. A conviction obtained by the knowing use
18 of perjured testimony “must be set aside if there is any reasonable likelihood that the false
19 testimony could have affected the judgment of the jury.” Bagley, 473 U.S. at 678. Nevertheless,
20 simple inconsistencies in testimony are insufficient to establish that a prosecutor knowingly
21 permitted the admission of false testimony. Zuno-Arce, 44 F.3d at 1423. “Discrepancies in . . .
22 testimony . . . could as easily flow from errors in recollection as from lies.” Id. To warrant
23 habeas relief, Petitioner must establish that: 1) the testimony was actually false; 2) the
24 prosecution knew or should have known it to be false; and 3) there is a reasonable likelihood that
25 the false testimony could have affected the jury’s verdict. Tayborn, 251 F.3d at 1130).
26

Petitioner cites to claims 2, 7 and 28 in support of this claim. He alleges Hernandez

27 testified falsely regarding his deal with the prosecution - that the prosecution had only promised
28
117

1 to tell the sentencing judge of Hernandez’s testimony, when the circumstantial evidence, (SHCP
2 Exhs. 510, 511), suggested that he had a promise of probation in exchange for his testimony; and
3 that Hernandez concealed that he was in custody on a heroin charge; and falsely stated he
4 contacted the police when detective Stratton initiated the contact.
5

Petitioner’s claim is unpersuasive. He has not made an evidentiary showing that there

6 was an undisclosed sentence concession or that Hernandez testified falsely. (See claims 1-4 and
7 28, ante.) The record that was before the state court does not reasonably support any undisclosed
8 sentence concession(s). (See SResp. Ex. B.) Hernandez’s testimony that he contacted police,
9 through a request made to a jail deputy (CT 477; see RT 2840) is not materially false and could
10 not reasonably have affected the jury’s imposition of the death sentence given the noted
11 substantial evidence against Petitioner. Petitioner claims, but makes no evidentiary showing that
12 Hernandez was a heroin addict.
13

For the reasons stated, a fair-minded jurist could have found that the state court rejection

14 of claims by the modified opinion was neither contrary to, or an unreasonable application of,
15 clearly established federal law, as determined by the Supreme Court, nor an unreasonable
16 determination of the facts in light of the evidence presented in the state court proceeding. See 28
17 U.S.C. § 2254(d).
18

Claim 40 is denied

19

f.

20

Petitioner next claims prosecutorial misconduct in Losing/Destroying Exculpatory

Review of Claim 41

21 Evidence at Penalty phase. He claims the police or prosecution lost or destroyed Hernandez’s
22 contemporaneous notes of conversations with Petitioner; notes which could have been used to
23 impeach Hernandez.
24

The California Supreme Court summarily denied claim 41 (SPet. Claims GG) raised in

25 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). “[T]he habeas
26 petitioner’s burden still must be met by showing there was no reasonable basis for the state court
27 to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what arguments or
28
118

1 theories supported or . . . could have supported, the state court’s decision; and then it must ask
2 whether it is possible fair-minded jurists could disagree that those arguments or theories are
3 inconsistent with the holding in a prior decision of this Court.” Id. (emphasis added).
4

Where the government fails to preserve evidence that is only potentially exculpatory, the

5 right to due process is violated only if [the evidence] possesses “an exculpatory value that was
6 apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be
7 unable to obtain comparable evidence by other reasonably available means.” Trombetta, 467
8 U.S. at 489.
9

For the same reasons state in claim 29, ante, Plaintiff has not made a sufficient

10 evidentiary showing that Hernandez acted for the police, or that the police and prosecution were
11 required to preserve alleged notes of conversations Hernandez had with Petitioner, or that the
12 notes had material exculpatory value.
13

Respondent contends claim 41 is not cognizable because it creates and retroactively

14 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
15 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
16 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
17

A fair-minded jurist could have found that Petitioner failed to establish that the state court

18 rejection of the claim was contrary to, or an unreasonable application of, clearly established
19 federal law, as determined by the Supreme Court. Nor was the state court's ruling based on an
20 unreasonable determination of the facts in light of the evidence presented in the state court
21 proceeding, viewed most favoring the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. §
22 2254(d).
23

Claim 41 is denied.

24

g.

25

Petitioner next claims prosecutorial misconduct during penalty phase closing argument.

26

The California Supreme Court summarily denied claim 42 (SPet. Claims JJ) raised in

Review of Claim 42

27 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
28
119

1

The California Supreme Court also considered this claim on appeal and found that the

2 defense had not objected on this ground or sought a curative admonition at trial and thus waived
3 the issue on appeal, Sanchez, 12 Cal.4th at 65-66. Additionally, the state supreme court found as
4 follows:
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

[A]ny error that did occur was harmless. As we explain in detail below, although
the prosecutor may have, at times, pushed the limits of proper advocacy, any
misconduct that did occur could not have contributed to the verdict and was thus
rendered harmless.
Defendant contends Ryals improperly told the jury that he was Tatman's actual
killer, and that Tatman was killed with a screwdriver seized from him. Defendant
also asserts that Ryals improperly treated defendant's conviction under section
187 (without special circumstances) as a capital crime. Her argument, claims
defendant, violated the doctrines of collateral estoppel and double jeopardy, and
denied him his constitutional rights under both the state and federal Constitutions.
Defendant's first claim, that the prosecutor improperly argued to the jury that he
was Tatman's actual killer, was based on the following comments made during the
prosecutor's closing argument:
“First, Mr. Tatman, an old, sick man, wheelchair bound, living from payday to
payday in the Bakersfield Inn, hardly a match for the defendant alone much less
for the defendant and his friend, Robert Reyes.
“Think of the old man lying in his bed, fearful because there were burglars in his
little room at the Bakersfield Inn. Think of how that fear turned to horror as he
realized that they weren't just burglars but that they intended to take his life.
Imagine how he must have felt when they approached him.
“Of course, the defendant told the police that he had no actual part in the murder,
that he watched his buddy do it. But then, when you think of that, think that the
defendant learned to lie to authorities at an early age, I believe Dr. Wright said the
third grade. Remember that he denied to the police also anything or any facts
concerning the Bocanegra murders, but then remember what he told Rufus
Hernandez.
“He told Rufus Hernandez what happened, how the two of them killed Mr.
Tatman, not how Robert [Reyes] killed Mr. Tatman or how he killed Mr. Tatman
but how they killed Mr. Tatman. Think of that when you are considering what the
penalty in this case should be.
“The two men could have taken the food. They could have taken the refrigerator.
They could have taken everything that was in that room and not touched that old
man who weighed less than one hundred pounds. They could have gone into that
room, completely cleared it out, even stripped the bed clothes out from under him
and never harmed him, never hurt him at all. But they didn't do that. The
defendant didn't do that. They chose, for some useless, senseless reason, to
commit an act of violence, the ultimate, ultimate act of violence, murder.”

28
120

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

In her rebuttal, the prosecutor told the jury that it should not attempt to relitigate
the guilt phase facts, but then asked the jury to deliberate over what she had told
it: “You do not know what evidence was presented in the previous hearing. You
are not to re-litigate that at this time. You hear[d] the circumstances of the Tatman
murder. You know what the defendant told the police because you heard that. But
you also know what the defendant told Rufus Hernandez because you heard that.
It is up to you to weigh this and to deliberate on that and to determine who exactly
struck the fatal blow.”
Defendant asserts that the effect of the above argument was to ask “the jury to
disregard completely the trial court's not true verdict on the robbery murder
special circumstance under Count I which implicitly and necessarily rejected the
charges that [defendant] was the actual killer in the Tatman homicide and that he
harbored an intent to kill in committing the crime.” Defendant claims Ryals's
argument sought to elevate a noncapital murder to which defendant was an
accomplice into a capital murder in violation of the guarantee against double
jeopardy following acquittal under the Fifth Amendment to the United States
Constitution and article I, section 15 of the California Constitution, and the related
doctrine of collateral estoppel. [Citation]
In making his argument, defendant points to the court's guilt phase verdict, in
which the court found defendant acted as an accomplice (and not the actual killer)
in the Tatman murder:
“As to the first count [the Tatman murder], the Court finds defendant guilty of
murder and fixes that murder as murder in the first degree based on the felony
murder rule.
“The Court finds that it is not true that the murder of Woodrow Wilson Tatman
was committed while the defendant was engaged in the commission or attempted
commission of a felony, to wit: The crime of robbery, within the meaning of the
special circumstance section. That does not mean, I hasten to add, that I do not
think there was a robbery in progress; that simply means that I find that the
defendant was an aider and abettor of the robbery but that the homicide occurred
in the commission of that, and therefore it's a first degree felony murder.”
The People observe that this verdict appears inconsistent. The confusion over the
verdict is highlighted by the fact that early in the guilt phase arguments, the
prosecutor appeared to concede (and the court appeared to agree) that defendant
could be found guilty only of second degree felony murder in connection with the
Tatman killing. Of course, any inconsistency in the verdict was harmless in light
of our law recognizing that accomplice status is sufficient to elevate a defendant's
complicity in the crime to the robbery-murder special circumstance as long as
defendant acted with “intent to kill.” [Citation]
What is clear from the verdict is the court's finding that defendant aided and
abetted the robbery, and that the murder verdict was based on the felony-murder
rule. It is less clear, however, whether the court found defendant was or was not
the actual killer. If we assume the court found the special circumstance untrue
because the prosecution had proved neither that defendant was the actual killer,
nor that he had the intent to kill, prosecutorial argument attempting to re-litigate
the guilt phase as to actual killer status was improper. [Citation] To the extent
Ryals crossed the line of proper argument, however, any misconduct was not
prejudicial to defendant because it is not reasonably possible a result more
favorable to the defendant would have occurred. Defendant was convicted of the
121

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

multiple murders of Juan and Juanita Bocanegra (§ 190.2, subd. (a)(3)), and the
jury was aware of defendant's prior violent criminal activity (§ 190.3, factors (b)
& (c)). Thus, Ryals's references to defendant's role in the Tatman murder could
not have affected the outcome of the penalty phase. [Citation]
Defendant next claims that the prosecutor deliberately misled the jury by her
opening statement comment that Tatman was actually murdered by Reyes with a
screwdriver that had been stolen from the Bocanegra residence and later found on
defendant's person. [Citation] Defendant asserts the prosecutor's comment
contradicted guilt phase evidence indicating that Tatman was mortally wounded
by a “massive blunt force injury to the left chest,” consistent with a heel stomp or
blow by a similar object (with a dimension of two to three inches). According to
the autopsy report, the screwdriver wounds were superficial stab wounds that did
not actually contribute to Tatman's death. Accordingly, defendant contends, the
prosecutor's misstatement of the evidence rendered the penalty phase
fundamentally unfair. [Citation]
Any inaccurate reference to the screwdriver as the actual murder weapon (or
comment that the weapon was found on defendant) could not properly be
characterized as prejudicial or so egregious as to deny defendant a fair trial.
[Citation] When, as here, the point focuses on the prosecutor's comments to the
jury, the question is whether there is a reasonable possibility that the jury
construed or applied any of the complained-of remarks in an objectionable
manner. [Citation]
Here, the jury was told that only nonfatal stab wounds were inflicted upon
Tatman. Forensic pathologist Holloway testified that the cause of Tatman's death
was massive blunt force injury to his chest. Holloway also stated that some of the
injuries sustained by Tatman were multiple superficial stab wounds to the chest
“none of which would be construed as capable of a cause of death in themselves,”
and a superficial stab wound to the abdomen which “would not itself have been a
fatal wound.”
In addition, Bakersfield Police Detective Boggs testified that, on March 23, 1987,
defendant told him that after he and Reyes had entered Tatman's hotel room, he
saw Reyes standing over Tatman in a threatening manner with a screwdriver in
his hand, that Reyes “freaked out” and stabbed Tatman with a screwdriver
although defendant never saw the screwdriver enter Tatman's body, and that
Reyes “possessed the screwdriver at all times.”
Moreover, the jury was consistently admonished by the court that it was to
consider only the evidence presented, and that the opening statements of the
lawyers were not to be considered evidence. The court admonished the jury that:
“The important thing to remember is that what lawyers say in a trial, what they
say in their argument, what they say in their opening statements, those simply are
not evidence. They are just telling you what they expect to prove. You have to
decide this case, however, based on what you hear under oath from the witness
stand or based on some documents or pictures that I admit for your consideration.
What a lawyer says . . . is not evidence.” [Citation] The court repeated its
admonition following closing arguments.
Taken in context as an attempt to counter defense counsel's argument that
defendant did not participate in the Tatman killing, it is not reasonably possible
the prosecutor's alleged inaccurate remarks about the Tatman murder misled the
jury. [Citation] Moreover, the court's instruction that the lawyers' opening and
122

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

closing statements were not to be considered evidence by the jury vitiated the
misleading effect of any inaccurate remarks. The court's instructions are
determinative in their statement of law, and we presume the jury treated the
court's instructions as statements of law, and the prosecutor's comments as words
spoken by an advocate in an attempt to persuade. [Citation] We cannot conclude
on this record that the prosecutor's isolated mischaracterization of the evidence in
her opening statement misled the jury.
Defendant also asserts that by discussing the circumstances of the Tatman killing
during the penalty phase, the prosecutor improperly misled the jury into believing
it could sentence defendant to death for the murder of Tatman alone, when the
penalty should have been considered only for the Bocanegra crimes, in which the
multiple-murder special circumstance was found true.
Defendant's argument is misplaced. The circumstances of the Tatman crime were
properly argued as an aggravating factor under section 190.3, factor (a)
(circumstances of the crime and the existence of any special circumstances found
to be true pursuant to section 190.1). [Citation] Moreover, defense counsel
reminded the jury of defendant's aider and abettor status in the Tatman murder
when he stated: “Ted Sanchez did not kill Mr. Tatman nor did he share in Robert
Reyes's intent to kill Mr. Tatman. Ted's role in that tragic incident was limited to
removing some of Mr. Tatman's property.” Hence, we find no prosecutorial error
occurred in Ryals's discussion of the circumstances of the Tatman murder at the
penalty phase.
Defendant's other claims of prosecutorial misconduct to which there was no
defense objection are not supported by the record. For example, defendant's
contention that the prosecutor allowed Detective Boggs to testify falsely as to who
told him-Reyes or defendant-that both men had “kicked back” and “relaxed” after
the Tatman murder, is simply a disagreement as to the interpretation of the
evidence, and in no way indicates that Ryals encouraged or elicited false
testimony from Boggs. In addition, the prosecutor did not commit misconduct in
failing to correct Dr. Holloway's characterization of the nonfatal scalp wounds to
Juan Bocanegra as a “contributory cause” rather than an “other condition” of
death. The characterization of the scalp wounds as contributing to Juan's death
was minimally significant to the jury's assessment of defendant's culpability in the
murders. The facts showed that defendant struck disabling blows to the victim's
head while Joey was stabbing him. Moreover, any misperceptions of the cause of
Juan's death were corrected by the prosecutor's opening statement that the wounds
inflicted by defendant with a metal bar, “were not the actual blows that killed the
man. They were only a part of what killed the man. The actual blow to the man
was the stab wound inflicted by his son while defendant was beating him in the
head with an iron pipe.”
Finally, defendant's claim that the prosecutor committed misconduct by asserting
that the Bocanegras would not have been killed without defendant's assistance is
without merit. The evidence supported the view that defendant restrained both
victims while Joey Bocanegra stabbed them. “The argument came well within the
broad discretion of the parties to state their views as to what the evidence shows
and what inferences may be drawn therefrom.” [Citation]

26
27 Sanchez, 12 Cal.4th at 66-72.
28
123

1

Petitioner alleges that prosecutor Ryals improperly argued and misstated evidence, that

2 the Bocanegra and Tatman murders would not have occurred but for Petitioner’s participation,
3 that the jury was sentencing Petitioner for the Tatman murder, and that Petitioner stabbed Mr.
4 Tatman to death, (See SHCP Ex. 124, ¶ 16), with a screwdriver (RT 2619.) Petitioner contends
5 that the correct facts are that Petitioner was only vicariously liable in the murders, that Mr.
6 Tatman was killed by blunt force rather than stab wounds (CT 109; RT 2695), and Petitioner was
7 sentenced by the trial court to 25 years to life for the Tatman conviction.
8
9 merit.

The Court finds that the state court could reasonably have concluded this claim lacks
Petitioner contends the prosecution misled the jury into thinking it was sentencing

10 Petitioner for the Tatman murder (RT 3047-3048), i.e., as a triple murderer (RT 3080), when in
11 fact the trial court was responsible for sentencing Petitioner for the Tatman murder, which was a
12 non-capital murder. (CT 1103; RT October 31, 1988 at p. 13.) Even if the prosecution argued
13 that Petitioner played a principal role in the Tatman murder, the state court could reasonably
14 have determined no prejudice resulted. The Tatman conviction was presented to the jury as
15 evidence in aggravation. The jury was appropriately admonished and instructed in this regard.
16 (RT 2615-2616; CT 979-1021; RT 3082-3097.) The record included testimony of pathologist,
17 Dr. Holloway that Mr. Tatman died of blunt force injury to his chest. (RT 2695.) Nothing in the
18 evidentiary record suggests the trial court’s admonishment and jury instructions were not
19 understood and followed. Moreover, the penalty phase evidence in aggravation was substantial
20 as discussed in claims 1 through 4, ante.
21

The record suggests that, as to Mr. Tatman, it was Petitioner’s decision to “hit the old

22 man” and take his food and refrigerator, that Petitioner and Reyes entered Mr. Tatman’s room,
23 that Reyes made stabbing motions at Mr. Tatman with a screwdriver, and that Petitioner stole
24 Mr. Tatman’s possessions after witnessing his murder. (RT 2658-2666; SPet. Ex. 129, pp. 1-2.)
25 Hernandez testified he told detective Stratton (RT 2848-2849; 2855-2856), that Petitioner told
26 him that “[Petitioner] and two other men entered an old man’s room at the Bakersfield Inn, that
27 the old man was in a wheelchair, that they beat the old man, that he and the other men stabbed
28
124

1 the old man with a screwdriver, and that they took the old man’s money.” (RT 2842, 2846-2848.)
2 Detective Stratton testified to that effect. (RT 2858-2861.)
3

The jury was made well aware that Mr. Tatman’s stabbing wounds were non-fatal

4 injuries and that Petitioner’s conviction for Mr. Tatman’s murder was based on his aiding and
5 abetting Reyes. (Id.; RT 235, 2693-2695.) Defense counsel made its argument to the jury that
6 Petitioner did not intend to kill Mr. Tatman.
7

Ryals’ argument that Petitioner had a principal role in the Bocanegra homicides, and that

8 the Bocanegras would not have been killed without his assistance, did not in all reasonable
9 likelihood mislead the jury or affect the death sentence imposed. The evidence weighed heavily
10 against Petitioner as an aider and abettor of the homicides. Petitioner grabbed and held Mr.
11 Bocanegra while Joey got a knife. (RT 2843, 2853-54.) Petitioner beat Mr. Bocanegra while
12 Joey stabbed him. (RT 2696-2706, 2719-21, 2725, 2843-44, 2854, 2858.)

Petitioner rushed

13 Mrs. Bocanegra and told Joey to “shut her up.” (RT 2844, 2858.) Petitioner pushed Mrs.
14 Bocanegra into a back room and hit her on the head with a bar while Joey stabbed her. (RT
15 2710-14, 2720-21, 2725, 2752, 2844.) This occurred Mrs. Bocanegra’s hands were bound and
16 she was likely gagged. (RT 2708, 2723, 2749-51, 2754-55, 2774-2775.)
17

Petitioner’s proffer of statements by jurors Bobbie Crowder (SHCP Ex. 124, ¶ 16) and

18 John Rodriguez (SHCP Ex. 109, App. A, ¶ 3) suggesting they believed Petitioner to be equally
19 culpable with Joey in the Bocanegra murders, even if such statements were competent evidence,
20 does not reasonably demonstrate prosecutorial misconduct sufficiently significant to deny a fair
21 trial or lack confidence in the verdict, given the above noted evidence in aggravation.
22

Given the unrebutted evidence presented at the penalty phase, the admonitions of the trial

23 judge that argument is not evidence, the potential aggravating and mitigating effects of
24 circumstances surrounding the Bocanegra murders, the state court could reasonably have found
25 that the prosecution arguments above were not so prejudicial as to make trial fundamentally
26 unfair. The multiple murder special circumstance in the Bocanegra murders and the substantial
27 evidence in aggravation presented during the penalty phase show that the state court could
28
125

1 reasonably determine the outcome would not likely have been different absent the alleged
2 prosecutorial misconduct. See Donnelly, 416 U.S. at 643 (improper jury argument by the state
3 does not present a claim of constitutional magnitude unless it is so prejudicial that the
4 petitioner’s trial was fundamentally unfair . . . [t]o establish prejudice, the petitioner must
5 demonstrate either persistent and pronounced misconduct or that the evidence was so
6 insubstantial that, in all probability, but for the remarks, no conviction would have occurred); see
7 also Darden, 477 U.S. at 182 (claim of prosecutorial misconduct rejected where the prosecutor’s
8 comments “did not manipulate or misstate the evidence, nor . . . implicate other specific rights of
9 the accused, such as the right to counsel or to remain silent.”); Furman v. Wood, 190 F.3d 1002,
10 1006 (9th Cir. 1999) (rejecting habeas claim where, although some of prosecutor’s arguments
11 were improper, jury was told comments were not evidence, and evidence against defendant was
12 substantial).
13

Generally, counsel are “given latitude in the presentation of their closing arguments, and

14 courts must allow the prosecution to strike hard blows based on the evidence presented and all
15 reasonable inferences therefrom.” Ceja v. Stewart, 97 F.3d 1246, 1253–1254 (9th Cir. 1996)
16 (quoting United States v. Baker, 10 F.3d 1374, 1415 (9th Cir. 1993)); see also United States v.
17 Molina, 934 F.2d 1440, 1445 (9th Cir. 1991) (prosecutor has wide latitude during closing
18 argument to make reasonable inferences based on the evidence).
19

Accordingly, the state court rejection of the claim was not contrary to, or an unreasonable

20 application of, clearly established federal law, and the state court's ruling was not based on an
21 unreasonable determination of the facts in light of the evidence presented in the state court
22 proceeding, viewed most favoring the prosecution, Jackson, 443 U.S. 307, 319 (1979). See 28
23 U.S.C. § 2254(d).
24

Claim 42 is denied on the merits.

25

11.

Ineffective Assistance Of Counsel In Penalty Phase - Claims 43 through 61

26

a.

Clearly Established Law

27

The applicable legal standard is set forth above, in the preface to the Court’s analysis of

28
126

1 claims 6-18. The basic requirements of Strickland apply with equal force in the penalty phase.
2 Thus, Petitioner must show that counsel’s actions fell below an objective standard of
3 reasonableness, and that the alleged errors resulted in prejudice. Strickland, 466 U.S. at 687-88.
4

In the context of the penalty phase, just as in the guilt phase, the Supreme Court has

5 “declined to articulate specific guidelines for appropriate attorney conduct and instead [has]
6 emphasized that ‘[t]he proper measure of attorney performance remains simply reasonableness
7 under prevailing professional norms.’” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S.
8 at 688).

In the penalty phase, defense counsel has an “obligation to conduct a thorough

9 investigation of the defendant's background,” Williams, 529 U.S. at 396, and defense counsel has
10 a duty to investigate, develop, and present mitigation evidence during penalty phase proceedings,
11 Wiggins, 539 U.S. at 521-23. Counsel has a duty to make a “diligent investigation into his
12 client's troubling background and unique personal circumstances.” Williams, 529 U.S. at 415
13 (O'Connor, J., concurring).
14

However, the Supreme Court has recognized that the duty to investigate does not require

15 defense counsel “to scour the globe on the off chance something will turn up; reasonably diligent
16 counsel may draw a line when they have good reason to think further investigation would be a
17 waste.” Rompilla v. Beard, 545 U.S. 374, 382-83 (2005) (citing Wiggins, 539 U.S. at 525
18 (further investigation excusable where counsel has evidence suggesting it would be fruitless));
19 Strickland, 466 U.S. at 699 (counsel could “reasonably surmise . . . that character and
20 psychological evidence would be of little help”); Burger, 483 U.S. at 794 (limited investigation
21 reasonable because all witnesses brought to counsel's attention provided predominantly harmful
22 information). The Strickland court stated:
23
24
25
26
27
28

[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In
other words, counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel's judgments.
127

1
2 Strickland, 466 U.S. at 690-691.
3

“In assessing counsel's investigation, the Court must conduct an objective review of their

4 performance, measured for reasonableness under prevailing professional norms,” Strickland, 466
5 U.S. at 688, which includes a context-dependent consideration of the challenged conduct as seen
6 “from counsel's perspective at the time,” id., at 689 (“[e]very effort [must] be made to eliminate
7 the distorting effects of hindsight”).” Wiggins, 539 U.S. at 523. Further, the reasonableness of
8 counsel’s actions may be determined or substantially influenced by the defendant’s own
9 statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic
10 choices made by the defendant and on information supplied by the defendant. In particular, what
11 investigation decisions are reasonable depends critically on such information. Strickland, 466
12 U.S. at 691.
13

In order to demonstrate prejudice, Petitioner must show “a reasonable probability that,

14 but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
15 Id. at 693-94. To assess that probability, the reviewing court must consider the totality of the
16 available mitigation evidence and reweigh it against the evidence in aggravation. Porter v.
17 McCollum, 558 U.S. 30, 41 (2009) (citing Williams, 529 U.S. at 397-398). The court must
18 consider whether the likelihood of a different result if the evidence had gone in is “sufficient to
19 undermine confidence in the outcome” actually reached at sentencing. Rompilla, 545 U.S. at
20 393 (quoting Strickland, 466 U.S. at 694).
21

b.

22

In this claim, Petitioner alleges ineffective assistance of counsel by failure to seek

Review of Claim 43

23 sufficient continuance to prepare for penalty phase and avoid adverse publicity from defense
24 counsel Toton’s impending disbarment.
25

The California Supreme Court summarily denied claim 43 (SPet. Claim LL) raised in

26 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In this case, “the
27 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
28
128

1 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
2 arguments or theories supported or . . . could have supported, the state court’s decision; and then
3 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
4 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
5 added).
6

Petitioner states that defense counsel Frank was aware that proper penalty phase

7 preparation had not been completed when the penalty trial started. Petitioner faults Frank for
8 failing to fully investigate neurological, psychiatric, drug use and social history defenses.
9 Petitioner points to retained social historian Dr. Wright, who found the penalty preparations
10 disorganized. (SHCP Ex. 131, Att. B, ¶ 6.) This disorganization, according to Dr. Wright, was
11 exacerbated by the accelerated penalty phase time line following trial waiver at the guilt and
12 special circumstances phase, (SHCP Ex. 137, ¶ 16), and by defense counsel’s delay in paying
13 defense service providers. (SHCP Ex. 137, Att. B, ¶ 16.) Dr. Wright also suggested aspects of
14 the penalty defense were not completed by the time of the penalty trial (SHCP Ex. 137, App. B,
15 ¶¶ 11-14), such that defense counsel should have requested a continuance. (SHCP Ex. 137, ¶¶
16 10-21.)
17

However, the state court could reasonably find here, as it did in claim 13, ante, that

18 additional preparation time was unnecessary. Defense counsel consulted with a serologist and
19 retained defense psychologist Donaldson in 1987. (RT [5/16/88] 3-4.) Defense counsel Frank,
20 who was responsible for the penalty phase, had almost completed his preparation when, on July
21 14, 1988, Petitioner waived jury trial on guilt and special circumstances. (CT 892; RT-115a;
22 SPet. Ex. 113, pp. 5-6.) By Frank’s own estimate, his preparations were to be complete by July
23 25, 1988. (RT [5/16/88] 6.) This was reasonably sufficient time given that the penalty phase did
24 not begin until September 21, 1988. (CT 949.) Defense counsel Frank was able to complete his
25 defense investigation prior to the penalty phase. (RT [5/16/88] 3-6.)

During this time, Frank

26 retained Dr. Wright to prepare the social history (SHCP Ex. 137, Att. B, ¶ 3), and hired defense
27 investigators Peninger and McGregor. (SHCP Ex. 124, ¶¶ 1-2.) Given the foregoing, the state
28
129

1 court could reasonably have found Dr. Wright allegations relating to inadequate trial preparation,
2 if considered evidence, to be unpersuasive.
3

Defense counsel, having already been granted a partially opposed three week continuance

4 on the eve of trial, could reasonably have concluded that a further continuance was unlikely.
5 (RT [5/16/88] 5-6; CT 713-714.) Moreover, a further continuance was contrary to Petitioner’s
6 stated desire to plead guilty to the Bocanegra murders. (SPet. Ex. 520, p. 2; SPet. Ex. 700.)
7 Petitioner waived jury trial (RT [5/16/88] 7-8) and submitted guilt and special circumstances
8 phase on the preliminary hearing transcript and the testimony of additional prosecution
9 witnesses. See Sanchez, 12 Cal.4th at 23-30. Dr. Wright’s suggestion a continuance would have
10 been granted could have been viewed as speculative.
11

Petitioner also alleges his defense was affected by publicity of the pending disbarment

12 proceedings against defense counsel Toton.

Petitioner asserts that defense Counsel Toton

13 received substantial adverse publicity in the Bakersfield Californian from his impending
14 debarment some two weeks before jury selection. However, the record does not demonstrate that
15 jurors had knowledge of the debarment proceedings or that the jury was unfair or biased as to
16 Toton’s disciplinary matter. As discussed in claims 49 and 55, post, the California Supreme
17 Court reasonably have determined that there was “no showing the jury was unfair or biased.”
18 Sanchez, 12 Cal. 4th at 62, n.6. That court noted that, during voir dire, only two of the jurors
19 selected, Razo and Rodriguez, had heard of the case.

(RT 1814-1815; 2458-2460, 2471.)

20 Neither of those two jurors mentioned having hearing of Toton. Both of those jurors indicated
21 they could put what they had heard out of mind while deliberating. Id. Petitioner proffers no
22 evidence these statements were untrue.
23

It is well-established that “juror impartiality . . . does not require ignorance.” Skilling v.

24 United States, 561 U.S. 358, 360 (2010) 81 (citing Irvin v. Dowd, 366 U.S. 717, 722 (1961))
25 (jurors are not required to be “totally ignorant of the facts and issues involved, scarcely any of
26 those best qualified to serve as jurors will not have formed some impression or opinion as to the
27 merits of the case.”); Reynolds v. U.S., 98 U.S. 145, 155–156 (1878) (“[E]very case of public
28
130

1 interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in
2 the vicinity, and scarcely any one can be found among those best fitted for jurors who has not
3 read or heard of it, and who has not some impression or some opinion in respect to its merits.”).
4

When pretrial publicity is at issue, “primary reliance on the judgment of the trial court

5 makes [especially] good sense” because the judge “sits in the locale where the publicity is said to
6 have had its effect” and may base her evaluation on her “own perception of the depth and extent
7 of news stories that might influence a juror.” Mu'Min v. Virginia, 500 U.S. 415, 427 (1991).
8

Here, for the reasons stated, the California Supreme Court could reasonably have

9 concluded that there was no reasonable likelihood that Petitioner did not receive a fair trial
10 despite limited pretrial publicity. Sanchez, 12 Cal.4th at 61. “A fair assessment of attorney
11 performance requires that every effort be made to eliminate the distorting effects of hindsight . . .
12 and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689.
13 Bearing that in mind, and as discussed in the claims above, the penalty phase evidence against
14 Petitioner was substantial.

Nothing suggests a reasonable likelihood of a more favorable

15 outcome had there been a further continuance.
16

Accordingly, the state court could have reasonably determined that there was no

17 competent evidence of juror bias arising from Toton’s state bar difficulties and related publicity.
18 Petitioner has not established that defense counsel’s failure to seek a further continuance to
19 prepare for the penalty trial and to avoid adverse publicity fell below an objective standard of
20 reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding
21 would have been different. Strickland, 466 U.S., at 687-694.
22

A fair-minded jurist could have found that the state court rejection of the claim was

23 neither contrary to, or an unreasonable application of, clearly established federal law, as
24 determined by the Supreme Court, nor an unreasonable determination of the facts in light of the
25 evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
26

Claim 43 is denied.

27

c.

Review of Claim 44

28
131

1

Petitioner next claims ineffective assistance of counsel by the individual and cumulative

2 failure to conduct additional investigation and present mitigating evidence in the Bocanegra
3 homicides.
4

The California Supreme Court summarily denied claim 44 (SPet. Claim MM) raised in

5 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In this case, “the
6 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
7 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
8 arguments or theories supported or . . . could have supported, the state court’s decision; and then
9 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
10 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
11 added).
12

The Court finds that Petitioner has not made a sufficient showing that he was prejudiced

13 by defense counsel’s failure to further investigate and present mitigating evidence of the
14 Bocanegra homicides, for the reasons discussed below.
15

i.

16

The Court finds that, for reasons discussed in claims 2 and 7, the decision of defense

Jailhouse Informant Hernandez

17 counsel not to further investigate and impeach jailhouse informant Hernandez regarding
18 substance abuse and heroin addiction (SCHP Exhs. 112, ¶ 10; 137, ¶ 37; 113, ¶ 34), and his
19 changing testimony to inculpate Petitioner as an equal participant in all three homicides (CT 488;
20 RT 2842-44), could reasonably reflect counsel’s lack of knowledge of sufficient supporting facts.
21 (SHCP Exhs. 137, ¶ 37; 113, ¶ 34; 112, ¶ 4.)
22

Additionally, it appears unlikely such impeachment would have been effective. See

23 claims 2, 7, ante; see also Burger, 483 U.S. at 795 (failure to pursue fruitless or harmful
24 investigation not unreasonable). The evidentiary record did not demonstrate that Hernandez, by
25 virtue of his alleged substance addition, his plea deal, or otherwise, was motivated to and did
26 testify falsely or inaccurately. (SPet. Ex. 900, pp. 4, 11; SResp. Ex. B.) Defense counsel Toton
27 cross-examined Hernandez at the preliminary hearing and asked Hernandez about any
28
132

1 undisclosed plea deal during cross-examination in the guilt and special circumstances phase.
Hernandez’s testimony was consistent with Petitioner’s statements and the

2 (CT 576-577.)

3 physical evidence. (CT 355, 378-380; 576-77.) Hernandez was not offered any disposition of
4 pending criminal matters prior to agreeing to testify at the Petitioner’s proceeding. (Id.; See
5 SResp. Ex. B.)

Toton later cross-examined Hernandez during the penalty phase. Hernandez

6 admitted a deal on a then pending charge in exchange for his testimony. (RT 2850-2857.) As
7 discussed in claim 7, ante, Hernandez’s testimony was not false or misleading.
8

Accordingly, the state court could reasonably have found that defense counsel were not

9 deficient in the decision not to conduct additional investigation of Hernandez to impeach him.
10

ii.

11

The Court finds that for reasons discussed in claims 2 and 8, the decision of defense

Jailhouse Informant Seeley

12 counsel not to further investigate alleged statements of jailhouse informant Charles Seeley
13 regarding Reyes’s involvement in the Bocanegra homicides, could have been a reasonable trial
14 tactic given the evidentiary record. Toton had dealt with Seeley in a separate matter and based
15 thereon doubted Seeley’s credibility and whether the prosecution would call him. (SPet. Ex.
16 137, p. 4.) Seeley’s version of events seemed contrary to the physical evidence at the Bocanegra
17 crime scene. (SPet. Ex. 419, pp. 5-6, 17; CT 355-382.) See e.g., Denham, 954 F.2d at 1505-06
18 (9th Cir. 1992) (defense counsel not ineffective where decision not to call witness based on
19 inconsistencies in witness’s testimony).
20

Also, Seeley’s testimony could reasonably have been viewed as more inculpating of

21 Petitioner than was Hernandez’s testimony. (SPet. Ex. 419, pp. 6-8, 18-19.) Seeley’s testimony
22 would have been subject to rebuttal by the substantial contrary evidence from Hernandez,
23 Stratton, Trihey, as well as by the crime scene physical evidence.
24

Defendant counsel Frank, for his part, had a tactical reason for not interviewing Seeley to

25 the extent any evidence provided by Seeley related only to the guilt and special circumstances
26 phase that were handled by Toton. (See SPet. Ex. 113, p. 4.)
27

Accordingly, the state court could reasonably have found that defense counsel was not

28
133

1 deficient in the decision not to conduct further investigation of Seeley and present him as a
2 defense witness.
3

iii.

4

The Court finds that, for reasons discussed in claims 2 and 9, the evidentiary record could

Joey Bocanegra

5 reasonably support as trial tactics, the failure of defense counsel to further investigate and
6 present evidence about Joey’s role in the murders of his parents including Joey’s history of
7 violence, violent temper, PCP use around the time of the murders, and the sudden fight with Mr.
8 Bocanegra that preceded the murder. There was substantial evidence that Petitioner aided and
9 abetted the Bocanegra murders with premeditation and deliberation. (See claims 1-8.) So much
10 so that defense counsel chose not to object to the prosecution’s two assailant theory.
11

Petitioner has not made an evidentiary showing of prejudice regarding evidence about

12 Joey. In the face of such substantial evidence of guilt, the state court could reasonably have
13 determined that a showing of Joey’s temper and prior assaultive conduct would not have raised a
14 reasonable doubt that Petitioner aided and abetted the premeditated and deliberate murders of
15 Mr. Bocanegra and Mrs. Bocanegra. Moreover, such a defense was contrary to Petitioner’s
16 stated desire to plead guilty to the Bocanegra murders (SPet. Ex. 520, p. 2) and “dying for his
17 crimes but dying with a clear conscience.” (SPet. Ex. 700.) Petitioner waived jury trial and
18 submitted guilt and special circumstances phase on the preliminary hearing transcript and the
19 testimony of additional prosecution witnesses. See Sanchez, 12 Cal.4th at 23-30.
20

The state court could reasonably have found that the record did not suggest that evidence

21 about Joey would have changed the result, given Petitioner’s incriminating statements to
22 detective Stratton and reporter Trihey and the crime scene evidence corroborated by Hernandez’s
23 testimony, (see claims 1-4, ante), supporting Petitioner’s intent to aid and abet the murders.
24

The state court could reasonably have found that defense counsel was not deficient in the

25 decision not to conduct additional investigation of Joey Bocanegra regarding his role in the
26 murders of his parents.
27

iv.

Physical Evidence

28
134

1

The Court finds that, for the reasons discussed in claims 1, 3, 10, 38 and 39, the failure of

2 defense counsel to further investigate crime scene evidence was not unreasonable.
3

Petitioner revisits his allegations relating to Laskowski’s testimony in this proceeding

4 that crime scene photographs showed two types of shoe prints in the Bocanegra kitchen, and
5 Laskowski’s subsequent re-examination of the photographs and identification of three types of
6 shoe patterns in the kitchen and outside the Bocanegra home. (Pet. Ex. 121, p. 2; Ex. 417, pp. 17 2; SHCP 137, Ex. A.) Petitioner argues further investigation could have shown that Reyes, not
8 Petitioner, caused the scalp wounds. However, Reyes admitted in subsequent proceedings that
9 he served as lookout during the murders and entered the residence only afterwards to assist
10 Petitioner and Joey. (SResp., Ex. A.) Evidence of Petitioner’s shoeprint in the kitchen also
11 undermines Seeley’s testimony that Petitioner watched the assault on Mr. Bocanegra from the
12 hallway. (SHCP, Ex. 419, pp. 6, 7, 22-23.) Evidence suggesting the presence of a third non13 victim in the Bocanegra Home does not does demonstrate or suggest a third person was present
14 during the murders. (See claim 30, 32, ante.) Significantly, defense counsel did not to object to
15 the two assailant theory (SHCP Ex. 137, ¶ 22) and the state record suggests this decision was not
16 unreasonable.
17

Petitioner also revisits testimony by Dr. Holloway that the scalp wounds were non-fatal.

18 (CT 119, 158-159.) Petitioner argues that further investigation could have shown the blows to
19 the head were not of such force as would show an intent to kill. However, as discussed in claims
20 1 and 3, there was substantial evidence of Petitioner’s aider and abetter liability. The violent
21 nature and extended duration of the struggles with Mr. Bocanegra and Mrs. Bocanegra, with
22 Joey taking time to get a kitchen knife, and Petitioner attempting to subdue and restrain each of
23 the victims during Joey’s assault on them, along with the multiple stab and blunt force wounds
24 inflicted during room to room struggle with the victims, reasonably suggest a plan to kill them.
25 (CT112-120; 149-156; 159; 167; 181; 192-194; 357-383; 479-483; 488.) Each victim suffered
26 multiple stab wounds (id.) and was left unassisted to hemorrhage to death. (CT 114-119.) There
27 was evidence Mrs. Bocanegra’s wrists had been tied together and that she had been gagged. (CT
28
135

1 113, 149-150, 153.) She suffered 26 stab wounds, three fatal, and six scalp wounds during the
2 struggle. (CT 115-116, 153-154.) Mr. Bocanegra was stabbed at least eight times and had nine
3 scalp wounds.

(Id.)

Defense counsel could reasonably have determined to focus limited

4 resources elsewhere.
5

Additionally, there is no reasonable likelihood that the foregoing testimony of Laskowski

6 and Holloway affected the jury’s imposition of the death penalty, see Agurs, 427 U.S. at 103, or
7 made trial so fundamentally unfair as to deny due process. Donnelly, 416 U.S. at 645. The
8 evidence against Petitioner was substantial.

A fair-minded jurist could conclude from the

9 evidence and statements Petitioner made to Hernandez and Detective Stratton, that Petitioner
10 assisted Joey in murdering Mr. Bocanegra and Mrs. Bocanegra (RT 2843-45, 2851-2854, 285611 59) and that he desired to enter a guilty plea. (SPet. Ex. 520, p. 2; see CT 891-92; RT [5/16/88]
12 7; RT- 108a-155a.)
13

Defense counsel’s failure to further investigate and rebut the prosecution’s physical

14 evidence supporting the two assailant theory was not unreasonable given the evidentiary record.
15

v.

16

The Court finds that, for the reasons discussed in claims 2 and 6, the failure of defense

Mental Defenses

17 counsel to further investigate and present mitigating evidence of Petitioner’s organic brain
18 damage and psychiatric impairments could reasonably be justified by a lack of supporting
19 evidence. (SHCP Exhs. 113, ¶ 31; 139, ¶ 11; 136, ¶ 10.) The evidentiary record suggests that
20 Petitioner was not under the influence of phencyclidine (PCP), marijuana, or alcohol at the time
21 of the Bocanegra and Tatman murders. The evidence proffered by Petitioner suggests a history
22 of substance abuse (SPet. Exhs. 105, pp. 64-65, 74-75; 110, p. 1; 119, p. 8; 123, p.1; 128, pp. 123 2), continuing through the weeks prior to the murders. (SPet. Ex. 105, pp. 85-87.) However,
24 Respondent correctly points to the absence of competent evidence that Petitioner ingested and/or
25 was under the influence of phencyclidine, marijuana, or alcohol on the days the Bocanegra and
26 Tatman murders occurred.
27

As discussed in claim 6, defense psychologist Donaldson did not recommended to

28
136

1 defense counsel that a neuropsychological evaluation be performed. Court appointed psychiatrist
2 Matychowiak, following his November 1987 examination, found that Petitioner was not suicidal
3 or delusional or suffering memory gaps (SPet. Ex. 520, p.5); that Petitioner planned to tell the
4 judge he was guilty (Id. at 2); and that Petitioner understood the proceedings and could cooperate
5 with counsel. (Id. at 6.) Petitioner told Matychowiak that he planned to tell the jury he was
6 guilty and “get it over with.”

(SPet. Ex. 520, p. 2.)

Dr. Matychowiak found Petitioner

7 competent to stand trial. (SPet. Ex. 520, p. 2-6.)
8

The state court could reasonably have found that defense counsel were not deficient in

9 the decision not to conduct additional investigation of mental state defenses.
10

Accordingly, all the foregoing allegations of failure to investigate and present mitigating

11 evidence are insubstantial when considered cumulatively for the reasons stated. See Karterman,
12 60 F.3d at 580.
13

For the reasons stated, a fair-minded jurist could have found that the state court rejection

14 of this claim was neither contrary to, or an unreasonable application of, clearly established
15 federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts
16 in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
17

Claim 44 is denied.

18

d.

19

In his next claim, Petitioner alleges ineffective assistance by counsel’s failure to object to

Review of Claim 45

20 admission of prejudicial crime scene and autopsy photographs.
21

The California Supreme Court summarily denied claim 44 (SPet. Claim NN) raised in

22 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
23

The state supreme court also considered and rejected this claim on appeal:

24
25
26
27
28

The trial court admitted into evidence 44 photographs, including 2 photographs of
the autopsies of Juan and Juanita Bocanegra depicting the extensive nature of
their scalp wounds. (Exhibits Nos. 13 & 14.) The autopsy photographs had been
excluded from the guilt phase following a successful motion in limine by
defendant. The trial court overruled defendant's objection to the admission of the
autopsy photographs, however, for the penalty phase. We first review his
contention that the trial court erred in admitting the autopsy photographs because
137

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

they were cumulative, misleading and inflammatory, and their prejudicial effect
substantially outweighed their probative value.
In overruling defendant's objection, the court stated: “These scalp wounds are
absolutely very important that the jury see. And they are not the kind of autopsy
pictures-they're bad, I'll say that, all autopsy pictures are bad, but they're not the
blood and guts type of thing that you sometimes see in autopsy pictures. And I
think the prejudicial effect is far, far, far, and I can't stress it enough, outweighed
by the probative value of these scalp wounds.”
Defendant contends the trial court committed prejudicial error in admitting
Exhibits Nos. 13 and 14 in violation of his right to a fair trial and reliable penalty
determination under the Eighth and Fourteenth Amendments of the federal
Constitution. The thrust of his argument is that the photos were not relevant to the
penalty determination, were cumulative to the testimony of Dr. Holloway (the
forensic pathologist who performed the autopsies on the Bocanegras), and
seriously misled the jury as to defendant's culpability in the Bocanegra murders.
In sum, the sole purpose of allowing the photographs, defendant asserts, was to
improperly shock and horrify the jury.
Defendant points to the prosecutor's explanation to the jury as to why she believed
the autopsy photographs were important evidence and asserts her comment
actually exploited the prejudicial effect of the evidence: “You will have the
pictures available to you. Look at the scalp wounds. You make the decision. But
whatever, [Mrs. Bocanegra] would not have been killed but for the help of Teddy
Brian Sanchez, and he is just as guilty of the murder as Joey Bocanegra.”
Defendant claims that because the probative value of the photographs was clearly
outweighed by their prejudicial effect, their admission violated his constitutional
rights.
The decision whether to admit photographs is within the trial court's discretion
and will not be disturbed unless their prejudicial effect substantially outweighs
their probative value. [Citation] We have examined Exhibits Nos. 13 and 14 and
have determined they are not so horrific or shocking that we can conclude the trial
court abused its discretion in admitting them. [Citation] The jury was familiar
with the facts of the crime, and the photographs had substantial probative value in
demonstrating defendant's culpability as an aider and abettor, and as corroborative
of Hernandez's testimony implicating defendant in the crimes. Moreover, the
probative value of the photographs was not diminished simply because the scalp
wounds alone were not fatal to the victims. The photographs corroborated the
testimonial evidence and were relevant to a determination of the appropriateness
of the death penalty. [Citation]
Defendant's claim that there was no dispute as to the circumstances of the murders
is not supported by the facts. Defense counsel Frank argued at the penalty phase
that defendant should be spared the death penalty if the jury had a “lingering
doubt” about the extent of defendant's participation in the Bocanegra killings.
Nor is defendant assisted by People v. Love (1960) 53 Cal.2d 843, 856-857, in
which we held that the trial court's admission of a photograph showing the
victim's face as she was dying, and of a tape recording of her last words as she lay
on a hospital table in extreme pain, was prejudicial because it “served primarily to
inflame the passions of the jurors.” [Citation] Here, by contrast, the autopsy
photographs depicting the Bocanegras' scalp wounds were clearly probative of (i)
the manner in which the victims were wounded, (ii) defendant's culpability as an
138

1
2
3
4
5
6
7

aider and abettor, (iii) the malice and aggravation of the crime, and (iv) the
appropriate ultimate penalty. [Citation]
Because we find no error in admitting the autopsy photographs, we need not
address defendant's claims that admission of other photographs during the penalty
phase (Exhibits Nos. 9, 18, 19 & 25, depicting the wounds on the Bocanegras and
Tatman) did not render harmless the prejudicial effect of the autopsy photos. Nor
do we address defendant's related argument that, assuming we conclude the
admission of these photographs “undercut the prejudice resulting from the
admission” of the autopsy photographs, trial counsel was ineffective for failing to
object to their admission. Neither argument is persuasive in light of our
conclusion that the court did not err in admitting the autopsy photographs at the
penalty phase.

8 Sanchez, 12 Cal.4th at 63-65.
9

A due process claim can be stated where graphic photos of victims make the trial

10 fundamentally unfair. Jammal, 926 F.2d at 919. However, photos that are relevant to the crime
11 charges and elements thereof are admissible. See Villafuerte v. Lewis, 75 F.3d 1330, 1343
12 (1996). Under California law, “photographs which disclose the manner in which the victim was
13 wounded are relevant on the issues of malice and aggravation of the crime and the penalty.”
14 People v. Thompson, 50 Cal.3d 134, 182 (1990).
15

Petitioner, citing in support to claim 56, post, alleges the jury was allowed to view

16 inflammatory and prejudicial autopsy, crime scene and victim photographs (RT 2891-2892),
17 depicting graphic and gory injuries unrelated to actions attributed to Petitioner, which should
18 have been excluded under California Evidence Code section 352, and that caused the penalty
19 trial to be fundamentally unfair. He claims there was no tactical reason not to object to these
20 photographs.
21

The state record shows that defense counsel Toton did move to exclude all photographs

22 during the guilt phase (RT-30a-33a). At the penalty phase, two autopsy photos of Mr. Bocanegra
23 and Juanita’s scalp wounds (People’s Exhs. 13, 14) were admitted, over the defense’s objection,
24 (RT 2876, 2880-2281, 2285, 2891-2892), and the victim photos were admitted without objection.
25 (RT 2891).
26

However, the state court could reasonably find that Petitioner was not prejudiced by

27 introduction of the photos or failure of defense counsel to object to them. The Court agrees with
28
139

1 the state court reasoning in finding the photographs relevant and probative of charges and
2 elements including intent to kill, aggravation and penalty.
3

Nor does the failure to object necessarily demonstrate ineffective assistance. See Nefstad

4 v. Baldwin, 66 F.3d 335 at *3 (9th Cir. 1995) (holding no violation of due process where
5 prosecutor during closing argument shows photographs of victim before and after murder
6 because relevant to intent).
7

Even without the photographs, it is not reasonably probable the jury would have returned

8 a sentence less than death given the evidence in aggravation including the circumstances
9 surrounding the murders of the Bocanegras and Mr. Tatman, and Petitioner’s 1982 assaults on
10 Ammarie and Pena. (RT 2863-2874.)
11

Accordingly, the state court could reasonable have found that Petitioner failed to make an

12 evidentiary showing that defense counsel’s performance fell below an objective standard of
13 reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding
14 would have been different. Strickland, 466 U.S., at 687-694.
15

It follows that the state court rejection of the claim was neither contrary to, or an

16 unreasonable application of, clearly established federal law, nor based on an unreasonable
17 determination of the facts in light of the evidence presented in the state court proceeding. See 28
18 U.S.C. § 2254(d).
19

Claim 45 is denied.

20

e.

21

Petitioner next claims ineffective assistance by failure to contest prosecution evidence of

Review of Claim 46

22 lack of remorse.
23

The California Supreme Court summarily denied claim 46 (SPet. Claim OO) raised in

24 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In this case, “the
25 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
26 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
27 arguments or theories supported or . . . could have supported, the state court’s decision; and then
28
140

1 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
2 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
3 added).
4

Petitioner alleges that he was prejudiced by Boggs’s false testimony attributing to

5 Petitioner the lack of remorse shown by Reyes following the Tatman murder, i.e., that Reyes and
6 Petitioner “kicked back, drank some whiskey, smoked some dope, ate some food, and just
7 relaxed for the rest of the evening.” (RT 2663-64; SPet. Ex. 100.) An error that Ryals also made
8 in her opening argument. (RT 2619.) Petitioner faults his counsel for failure to cross-examine
9 Boggs, and failure to introduce evidence of Petitioner’s remorse expressed to reporter Trihey and
10 his friends Robin and Debbie Lozano.
11

The Court is not persuaded by this claim. Petitioner’s contention regarding to Boggs’s

12 allegedly false testimony and defense counsel’s failure to cross-examine Boggs on this issue fails
13 substantively for reasons discussed in claim 37, i.e., the state court could reasonably have
14 concluded that prosecutor Ryals did not know of and knowingly rely upon Boggs’s erroneous
15 testimony, (SPet. Exhs. 137, p. 12; 113, p.10; SResp. Ex. B), and there is no reasonable
16 likelihood the error affected the result of trial or caused an unfair trial.
17

Petitioner also alleges prejudice from Ryals’s opening argument in which she made

18 reference to Boggs’s errant testimony. Under California law, the absence or presence of remorse
19 is a factor relevant to the jury’s penalty determination. People v. Ghent, 43 Cal.3d 739, 771
20 (1987); see also Harris v. Pulley, 885 F.2d 1354, 1384 (9th Cir. 1988). The prosecutor’s
21 comment is impermissible only where it is “manifestly intended to call attention to the
22 defendant's failure to testify or is of such a character that the jury would naturally and necessarily
23 take it to be a comment on the failure to testify.” Beardslee v. Woodford, 358 F.3d 560, 586 (9th
24 Cir. 2003). Here the prosecution evidence of lack of remorse did not refer to Petitioner’s failure
25 to testify, but rather to statements that were already in evidence.
26

Additionally, there is not a reasonable probability that statements of remorse to Trihey

27 and acquaintances, the Lozanos, even if taken as admissible evidence of remorse, could have
28
141

1 affected the jury’s imposition of the death penalty. Statements of remorse to Trihey were
2 themselves inculpating. (SPet. Ex. 113, p. 12.) Moreover, a lack of remorse is in any event
3 suggested by Petitioner’s statements describing Mr. Tatman’s murder and robbery, his intention
4 to rob Mr. Tatman, how Reyes stabbed Mr. Tatman, and how Petitioner and Reyes then took Mr.
5 Tatman’s things back to their room. (RT 2658-2666.) Tactical reasons for not presenting
6 remorse evidence are reasonably suggested by hearsay issues relating to Petitioner’s proffer (Pet.
7 719) and the defense strategy to not admit guilt but rather focus on “residual or lingering doubt.”
8 (SPet. Ex. 113, pp. 8-12.)
9

The state court could have reasonably believed that Petitioner’s confession to Boggs of

10 the circumstances surrounding Tatman’s murder and Petitioner’s involvement in it would have
11 undercut any sympathy toward him by the jury. (See RT 2658-2666.) Moreover, defense
12 counsel could reasonably have decided that a lingering doubt defense and mitigating social
13 history might well have been weakened by evidence of remorse. (See RT 3053-3055, 306314 3064.)
15

The Court finds that Petitioner has not established that defense counsel’s performance fell

16 below an objective standard of reasonableness and that, but for counsel's unprofessional errors,
17 the result of the proceeding would have been different. Strickland, 466 U.S., at 687-694.
18

For the reasons stated, a fair-minded jurist could have found that Petitioner failed to

19 establish that the state court rejection of the claim was contrary to, or an unreasonable
20 application of, clearly established federal law, or an or an unreasonable determination of the
21 facts in light of the evidence presented in the state court proceeding, viewed most favoring the
22 prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
23

Claim 46 is denied.

24

f.

25

Petitioner next claims ineffective assistance by counsel’s failure to investigate and

Review of Claim 47

26 present mitigation evidence regarding the 1982 Ammarie and Pena Crimes.
27

The California Supreme Court summarily denied claim 47 (SPet. Claim PP) raised in

28
142

1 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In this case, “the
2 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
3 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
4 arguments or theories supported or . . . could have supported, the state court’s decision; and then
5 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
6 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
7 added).
8

The trial record reveals Mr. Ammarie, the store keeper victim in one incident, testified at

9 the penalty phase that, on May 7, 1982, Petitioner assaulted him when Ammarie refused to “get
10 [Petitioner] some bacon.” Petitioner stabbed Ammarie in the left shoulder and neck, took money
11 and ran away, leaving Ammarie in the hospital for two weeks. (RT 2862-2866; see Sanchez, 12
12 Cal.4th at 22.) The victim in the other incident, Mr. Pena, a friend of and Petitioner, testified at
13 the penalty phase that Petitioner, without any provocation, stabbed him three times with a
14 kitchen knife and demanded money, leaving Pena hospitalized for two days. (RT 2868-74.)
15

Petitioner contends that, as to the Ammarie and Pena crimes, defense counsel failed to

16 investigate and present mitigating evidence of Petitioner’s emotional and family turmoil,
17 possible PCP psychosis, organic brain damage, and belief he acted in self-defense in these
18 incidents. Petitioner claims there was no tactical reason for these omissions.
19

The Court finds this claim unavailing. Petitioner does not offer facts showing the nature

20 and extent of the investigation conducted by defense counsel Frank, or what information if any,
21 Petitioner provided to defense counsel Frank in preparation for the penalty phase, or what
22 Petitioner did, if anything, to cooperate in developing mitigating penalty phase evidence. As the
23 Supreme Court stated in Strickland, the information supplied by the defendant is “critical” in
24 determining whether counsel’s investigation decisions are reasonable. 466 U.S. at 691. Counsel
25 is “strongly presumed” to make decisions in the exercise of professional judgment. Id. at 690.
26

Petitioner faults defense counsel Frank for failure to consult with counsel who assisted

27 Petitioner in the 1982 criminal proceedings.

Yet Petitioner does not state what credible,

28
143

1 probative mitigating information this consultation would have yielded over and above the police
2 and court records relating to the 1982 convictions, which Petitioner concedes defense counsel
3 undertook to obtain. (SHCP Exhs. 137, ¶ 35; 113, ¶ 30.)
4

Petitioner faults defense counsel’s for a failure to investigate possible social and mental

5 defenses contemporaneous to the 1982 crimes, including probable effects of alleged heavy PCP
6 use. Petitioner offers in support the 1995 opinion of a clinical psychologist, Jeri Doane, as to the
7 effect of losses and turmoil in his personal life (SPet. Ex. 105, pp. 75-78), as well as anecdotal
8 assertions of Petitioner and others regarding potential mental and other defenses to his 1982
9 criminal conduct. (SPet. Exhs. 105, pp. 1-5, 79-82, 99- 100; 802; 506, pp.6-8; 128, p. 2.)
10

But even assuming this type of mitigating information could be competent evidence, it

11 does not suggest Petitioner informed defense counsel in this proceeding of the existence of this
12 mitigating information, or that defense counsel in this proceeding was otherwise aware of it or
13 should have been aware of it. Moreover, defense counsel Frank could reasonably have believed
14 such information, if developed, would have little if any mitigating value. Petitioner does not
15 dispute that he was convicted of the 1982 crimes. Post hac assertion of defenses to convictions
16 suffered years prior could reasonably be found to have little if any mitigating value. As to
17 mental defenses, the lack of supporting evidence (see claim 6), and the fact that Petitioner was
18 convicted for these 1982 offenses, could reasonably suggest further investigation was
19 unwarranted. Based on the evidentiary record, defense counsel could reasonably presume viable
20 defenses in the 1982 proceedings were raised therein.
21

These defenses would not advance defense counsel Frank’s tactic of lingering doubt.

22 “Rare are the situations in which the ‘wide latitude counsel must have in making tactical
23 decisions’ will be limited to any one technique or approach.” Richter, 131 S. Ct. at 789 (quoting
24 Strickland, 466 U.S. at 689); see also Williams, 529 U.S. at 415 (O'Connor, J., concurring)
25 (defense counsel conducted a reasonable investigation into Petitioner’s troubling background and
26 unique personal circumstances developed a coherent and organized strategy, proffered evidence,
27 and presented a case for mitigation); Wiggins, 539 U.S. at 521 (citing Strickland, 466 U.S. at
28
144

1 688) (“the proper measure of attorney performance remains simply reasonableness under
2 prevailing professional norms.”).
3

Just as the Supreme Court found in Van Hook,

4

This is not a case in which the defendant's attorney [] failed to act while
potentially powerful mitigating evidence stared [him] in the face, cf. Wiggins, 539
U.S., at 525, 123 S. Ct. 2527, or would have been apparent from documents any
reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374,
389–393, 125 S. Ct. 2456, 162 L.Ed.2d 360 (2005). It is instead a case, like
Strickland itself, in which defense counsel's “decision not to seek more”
mitigating evidence from the defendant's background “than was already in hand”
fell “well within the range of professionally reasonable judgments.”

5
6
7
8

9 Bobby v. Van Hook, 558 U.S. 4, 11-12 (2009) (quoting Strickland, 466 U.S. at 699).
10

Additionally, even if defense counsel Frank’s investigation and presentation relating to

11 the 1982 crimes was deficient, there was no reasonable probability such mitigation evidence
12 could have affected the jury’s imposition of the death penalty given the noted substantial
13 evidence against Petitioner. The state court could reasonably have concluded that defense
14 counsel’s investigation was adequate given the above noted facts underlying these prior criminal
15 convictions, defense counsel Frank’s theory of lingering doubt and the social and personal
16 history mitigation evidence discussed in claims 6, 26, ante.
17

For these reasons, Petitioner has failed to overcome the strong presumption that counsel

18 made decisions in the exercise of professional judgment. Strickland, 466 U.S. at 690. Even if
19 defense counsel had discovered this evidence and still chose to proceed with his strategy as
20 opposed to the strategy Petitioner now advocates, a fair-minded jurist could conclude that his
21 decision was reasonable. “Counsel was entitled to formulate a strategy that was reasonable at the
22 time and to balance limited resources in accord with effective trial tactics and strategies.”
23 Richter, 562 U.S. at 107. “[T]he Sixth Amendment guarantees reasonable competence, not
24 perfect advocacy judged with the benefit of hindsight.” Yarborough, 540 U.S. at 8.
25

Petitioner fails to demonstrate that no reasonable jurist could have found that he failed to

26 make a prima facie showing that defense counsel rendered ineffective assistance during the
27 penalty phase of the trial relating to mitigating the 1982 criminal convictions.
28
145

1

For the reasons stated, a fair-minded jurist could have found that the state court rejection

2 of this claim was neither contrary to, or an unreasonable application of, clearly established
3 federal law, as determined by the Supreme Court, nor an unreasonable determination of the facts
4 in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d).
5

Claim 47 is denied.

6

g.

7

Petitioner next claims ineffective assistance by counsel’s failure to fully and completely

Review of Claim 48

8 develop and present adequate and reliable evidence about Petitioner’s character, background, and
9 behavior.
10

The California Supreme Court summarily denied claim 48 (SPet. Claim QQ) raised in

11 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In this case, “the
12 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
13 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
14 arguments or theories supported or . . . could have supported, the state court’s decision; and then
15 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
16 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
17 added).
18

Petitioner, citing to facts alleged in claim 6, contends that background and character

19 testimony from four family members as well as social anthropologist Isabel Wright did not fully
20 present evidence of his unstable family life, sporadic education, disabling physical violence,
21 abuse, deprivation, and emotional suffering of his childhood and adolescence his caring for
22 siblings and heavy drug use. He alleges that defense counsel Frank, consistent with Wright’s
23 requests, should have presented a full social history prepared by a social anthropologist, along
24 with evidence of organic brain damage and psychiatric disorders prepared by a psychologist or
25 psychiatrist, such as included with his state petition. (SHCP Exhs. 105, 111, 114.)
26

During the sentence selection stage, the Supreme Court has imposed a requirement that

27 the jury make “an individualized determination on the basis of the character of the individual and
28
146

1 the circumstances of the crime.” Tuilaepa, 512 U.S. at 972-73 (citing Zant, 462 U.S. at 879, and
2 Woodson v. North Carolina, 428 U.S. 280, 303-304 (1976)). This “requirement is met when the
3 jury can consider relevant mitigating evidence of the character and record of the defendant and
4 the circumstances of the crime.” Id. (citing Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990))
5 (“requirement of individualized sentencing in capital cases is satisfied by allowing the jury to
6 consider all relevant mitigating evidence”). The court may not “impede [] the sentencing jury's
7 ability to carry out its task of considering all relevant facets of the character and record of the
8 individual offender” by excluding “relevant mitigating evidence.” Skipper v. South Carolina,
9 476 U.S. 1, 8 (1986). Nevertheless, the court retains “the traditional authority of a court to
10 exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the
11 circumstances of his offense.” Lockett v. Ohio, 438 U.S. 586, 605 n.12 (1978).
12

The Court does not find that Petitioner was prejudiced by any failure of defense counsel

13 to develop and present complete, adequate, and reliable evidence of Petitioner’s character,
14 background, and behavior at the time of the Bocanegra and Tatman homicides.
15

Defense counsel Frank, while arguing for life without the possibility of parole, (RT 2895-

16 2896, 2910, 2923, 2928, 3021), did present the following significant mitigating background and
17 character evidence from family members including Petitioner’s wife and retained social
18 anthropologist Dr. Wright. (RT 2897, 2912, 2928, 2930, 3007-3008, 3017.) Petitioner’s mother
19 became pregnant with him when she was fifteen. (RT 2897-2898, 2943-2945.) His mother
20 turned to alcohol and drugs (2899-2900, 2902-2903) and embarked upon a succession of
21 unstable and unsupportive marriages and relationships. Petitioner experienced an impoverished,
22 nomadic, neglected and sometimes abusive upbringing with little positive parental or adult
23 supervision. (RT 2902-2941, 2958-2964, 3003-3006.) He lived in a car and then cheap motels.
24 (RT 2904, 2908, 2918-2919.) His parents drank and argued, (RT 2905, 2909), and sometimes
25 physically abused Petitioner (RT 2907, 2985.) His siblings were removed from the home for
26 adoption. (RT 2913-2914, 2941, 2970, 2978-83.) His lack of stability in school, changing
27 schools often and infrequently attending class, resulted in poor academic performance such that
28
147

1 he did not progress beyond the eighth grade. (RT 2963-2969, 2941-2942, 2980, 2991-2994.) He
2 began sniffing paint as a teen. (RT 2993, 2998.) His attempts at job training and employment
3 (RT 2996-2997) were short-lived because of his lack of skills and education. (RT 3003-3004.)
4

Defense Counsel Frank presented evidence that Petitioner nonetheless showed concern

5 and care for his siblings, sometimes stealing food for them.

(RT 2920.)

Petitioner’s

6 grandmother, to whom he was close, died in 1982 (RT 3000). Petitioner’s mother died from
7 alcohol related complications at age thirty-eight while he was in prison for the 1982 Ammarie
8 and Pena stabbings. (RT 2897, 2912, 2916, 3001.) Petitioner’s step-father also died from
9 complication of alcohol. (RT 2919, 2961.) Petitioner lived a transient existence after his release
10 from prison in 1986. (RT 3001-3002.) Petitioner was unable to find work and resorted to drugs.
11 (Id.) Petitioner married Robin Alvarado shortly before his 1988 homicide trial, (RT 2925, 2928),
12 and prior to that cared for her children. (RT 2927, 3000, 3018-3019.) Social anthropologist, Dr.
13 Wright, testified that the major influences in Petitioner’s life were his migratory lifestyle
14 secondary to poverty and inconsistent family relationships. (RT 2939, 3003, 3006.)
15

The evidentiary record demonstrates defense counsel argued all the foregoing in urging

16 the jury to return a life sentence without the possibility of parole for the then twenty-five year old
17 Petitioner. (RT 2895-2896, 2910, 2923, 2928, 3021.) Moreover, prosecutor Ryals, in her
18 argument to the jury, acknowledged there were mitigating factors in Petitioner’s background and
19 character that evoked sympathy for him. (RT 3043-3047, 3079.)
20

The Court finds that, given the substantial inculpating evidence against Petitioner, it is

21 not reasonably probable that Petitioner would have received a more favorable sentence had
22 further evidence of his background, character and behavior been presented.

In particular,

23 presentation of additional evidence regarding Petitioner’s substance abuse would not have
24 necessarily added weight to his case for mitigation. See Cullen, 131 S. Ct. at 1410 (noting that
25 evidence of serious substance abuse is “by no means clearly mitigating”); id. at 1406–07 (noting
26 that Strickland “rejected the notion that the same investigation will be required in every case”
27 and requires the habeas court to strongly presume that counsel exercised reasonable judgment in
28
148

1 making all significant decisions).
2

The state court could reasonably find Petitioner’s alleged neurological and psychiatric

3 conditions and related mental defenses were not sufficiently supported by the record and failed
4 for reasons discussed in claims 6 and 26, ante.
5

Petitioner has not established that defense counsel’s performance fell below an objective

6 standard of reasonableness and that, but for counsel's unprofessional errors, the result of the
7 proceeding would have been different. Strickland, 466 U.S., at 687-694.
8

For the reasons stated, a fair-minded jurist could have found that Petitioner failed to

9 establish that the state court rejection of the claim was contrary to, or an unreasonable
10 application of, clearly established federal law, or an unreasonable determination of the facts in
11 light of the evidence presented in the state court proceeding, viewed most favoring the
12 prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
13

Claim 48 is denied.

14

h.

15

Petitioner alleges defense counsel was ineffective by failing to request that the trial court

Review of Claim 49

16 voir dire prospective jurors about adverse publicity from Bakersfield Californian articles relating
17 to debarment proceedings against defense counsel Toton.
18

The California Supreme Court summarily denied claim 49 (SPet. Claim RR) raised in

19 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
20

The state supreme court considered and rejected this claim on direct appeal:

21
22
23
24
25
26
27
28

[I]t is evident from the record that defendant failed to preserve his claim of
improper voir dire by objecting to the court's questioning during trial. [Citation]
On the merits, our review of the record shows the trial court's voir dire adequately
insured an impartial jury, without unnecessarily exposing the jury to the very
information defendant found could prejudice his case . . . .
The trial court assisted counsel and to ensure a fair and impartial jury by requiring
the 201 prospective jurors to fill out a one-page questionnaire asking the panel
members whether they had ever heard of the case, and if so, to name their source.
[Citation] Of the jurors eventually selected to serve, eight told the court they had
never heard of defendant's case, were not familiar with counsel, and either did not
subscribe to or did not read on a consistent basis the Bakersfield Californian. In
addition, pursuant to further questioning by the court, four of these jurors
149

1
2
3
4
5
6
7
8
9

indicated they did not believe everything they read in the newspaper.
Two other jurors who acknowledged they read the Bakersfield Californian
observed that they had never heard of defendant's case.
Two of the twelve jurors selected had prior knowledge of defendant's case, but
their voir dire responses clearly indicated that their exposure to the newspaper
articles about defendant's case was limited to an awareness of the general facts
and circumstances of the Bocanegra and Tatman murders. Their knowledge of the
case did not include any specific information regarding Toton's pending
disbarment. Thus, it appears that the trial court acted well within its discretion in
proposing the general question of the jurors' knowledge of Toton's pending
disbarment without unnecessarily educating the jury about that matter. The trial
court's strategy thus avoided informing the jury of Toton's troubles, while
assuring defendant a fair and impartial jury. [Citation] Under these facts, we find
the trial court did not err in limiting voir dire to general questions concerning
pretrial publicity. [Citation]

10 Sanchez, 12 Cal.4th at 61-63. The record demonstrates that defense counsel Toton agreed,
11 reasoning that questioning jurors about the publicity was likely to be more prejudicial than that
12 publicity itself. (SHCP Ex. 137, ¶ 29). This Court finds the tactic not unreasonable.
13

The Sixth Amendment secures to criminal defendants the right to trial by an impartial

14 jury. Skilling, 561 U.S. at 377-78; Irvin, 366 U.S. at 722. Nevertheless, “juror impartiality, we
15 have reiterated, does not require ignorance.” Skilling, 561 U.S. at 381 (citing Irvin, 366 U.S. at
16 722) (jurors are not required to be “totally ignorant of the facts and issues involved.”). To merit
17 relief for violation of his due process rights due to pretrial publicity, Petitioner must demonstrate
18 that the case is one in which prejudice is presumed, or he must demonstrate actual prejudice.
19 Skilling, 561 U.S. at 379, 385.
20

“A presumption of prejudice . . . attends only the extreme case.” Id. at 381. The

21 Supreme Court has determined that pretrial publicity so manifestly tainted a criminal prosecution
22 that prejudice must be presumed in only three cases: Rideau v. Louisiana, 373 U.S. 723, 726-27
23 (1963) (televised confession); Estes v. Texas, 381 U.S. 532, 536 (1965) (massive pretrial media
24 interference); and Sheppard v. Maxwell, 384 U.S. 333, 355-356 (1966) (months of virulent
25 pretrial publicity).
26

“To establish actual prejudice, the defendant must demonstrate that the jurors exhibited

27 actual partiality or hostility that could not be laid aside.” United States v. Sherwood, 98 F.3d
28
150

1 402, 410 (9th Cir. 1996). When pretrial publicity is at issue, “primary reliance on the judgment
2 of the trial court makes [especially] good sense” because the judge “sits in the locale where the
3 publicity is said to have had its effect” and may base her evaluation on her “own perception of
4 the depth and extent of news stories that might influence a juror.” Mu'Min, 500 U.S., at 427.
5 Appellate courts making after-the-fact assessments of the media's impact on jurors should be
6 mindful that their judgments lack the on-the-spot comprehension of the situation possessed by
7 trial judges. Skilling, 561 U.S. at 386.
8

Petitioner contends that neither the trial court nor defense counsel asked prospective

9 jurors about newspaper the articles appearing in the Bakersfield Californian two weeks before
10 jury selection that discussed the impending debarment of lead defense counsel Toton.

He

11 maintains there was no tactical reason for not questioning jurors about these newspaper articles
12 and that jurors prejudiced thereby may have been empaneled.
13

Petitioner’s case is immediately distinguishable from Estes and Sheppard. He does not

14 allege, nor is there any evidence, that media coverage of attorney disciplinary proceedings
15 interfered with his right to a fair trial. See Skilling, 561 U.S. at 382 n.14 (“Skilling's reliance on
16 Estes and Sheppard is particularly misplaced; those cases involved media interference with
17 courtroom proceedings during trial. [Citation] Skilling does not assert that news coverage
18 reached and influenced his jury after it was empaneled.”). Rideau is the only case in which the
19 Supreme Court overturned a conviction based on pretrial publicity.
20

Petitioner’s case also is readily distinguished from Rideau. See Sanchez, 12 Cal.4th at

21 61-63. Here, during voir dire, the following eight jurors indicated they had never heard of the
22 case, did not know counsel, and did not subscribe to and did not usually read the Bakersfield
23 Californian: juror Jones (CT 258; RT 594, 596-597, 606); juror Mooney (CT 256, RT 647, 664);
24 juror Roberts (CT 237, RT 1170); juror Stell (CT 184, RT 1882); juror G. Clark (CT 229, RT
25 2120); juror P. Clark (CT 228; RT 2140-2141); juror O’Toole (CT 220, RT 2401-2402, 2406);
26 and juror Raymond (CT 217, RT 2438-2439).
27

Two jurors, Crowder and Zamora, regularly read the Bakersfield Californian but were

28
151

1 unaware of the case and of counsel. (CT 207; RT 1342-1343 regarding juror Crowder; CT 213;
2 RT 2554, 2563 regarding juror Zamora.)
3

Only two of the jurors selected, Razo and Rodriguez, stated they had heard of the case.

4 (RT 1814-1815; 2458-2460, 2471-2472.) Neither of these jurors mentioned having hearing of
5 Toton; both indicated they did not believe everything they read in newspapers and could put
6 what they had heard out of mind while deliberating. Id. Petitioner has not made an evidentiary
7 showing that these juror statements were untrue.
8

“[P]retrial publicity—even pervasive, adverse publicity—does not inevitably lead to an

9 unfair trial.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554 (1976). In the rare case that
10 prejudice is presumed, there will have been a “‘barrage of inflammatory publicity immediately
11 prior to trial,’ [Citation], amounting to a ‘huge . . . wave of public passion.’” Patton v. Yount,
12 467 U.S. 1025, 1033 (1984) (quoting Murphy v. Florida, 421 U.S. 794, 798 (1975) and Irvin,
13 366 U.S. at 728). The coverage in this case was neither all pervasive nor constant leading up to
14 trial. Certainly there was no barrage of inflammatory publicity immediately prior to trial or in
15 the six months leading up to trial. Based on the foregoing, the state court reasonably could have
16 concluded that this was not an extreme case wherein prejudice should be presumed from pretrial
17 publicity.
18

As discussed above and in claim 55, post, the trial judge considered the impact of pretrial

19 publicity on the jurors who served on Petitioner’s case. None of the twelve selected jurors had
20 been exposed to media accounts of Toton’s disciplinary problems. Sanchez, 12 Cal.4th at 61-63.
21 Only two jurors had heard of the case. Id. It is well-established that “juror impartiality . . . does
22 not require ignorance.” Skilling, 561 U.S. at 381 (citing Irvin, 366 U.S. at 722) (Jurors are not
23 required to be “totally ignorant of the facts and issues involved”; “scarcely any of those best
24 qualified to serve as jurors will not have formed some impression or opinion as to the merits of
25 the case.”); Reynolds, 98 U.S. at 155–156 (“[E]very case of public interest is almost, as a matter
26 of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any
27 one can be found among those best fitted for jurors who has not read or heard of it, and who has
28
152

1 not some impression or some opinion in respect to its merits.”).
2

Petitioner’s suggestion that the manner in which Toton conducted voir dire was self-

3 interested is unsupported by the evidence for reasons discussed in claims 21-24, ante. Moreover,
4 even if defense counsel’s failure to request voir dire about attorney discipline publicity was
5 deficient performance, nothing in the evidentiary record suggests presumed or actual prejudice.
6 The noted substantial evidence against Petitioner suggested no reasonable probability of a more
7 favorable outcome even had defense counsel requested voir dire about publicity from Toton’s
8 disciplinary proceeding.
9

The state court could reasonably have concluded that Petitioner failed to establish that

10 defense counsel’s performance fell below an objective standard of reasonableness and that, but
11 for counsel's unprofessional errors, the result of the proceeding would have been different.
12 Strickland, 466 U.S., at 687-694. For the reasons above, this Court agrees with the state court
13 that there was no reasonable likelihood that Petitioner did not receive a fair trial despite the
14 limited voir dire regarding pretrial publicity.
15

Accordingly, the state court’s rejection of this claim was not contrary to, or an

16 unreasonable application of, clearly established federal law, or an unreasonable determination of
17 the facts in light of the evidence presented in the state court proceeding, viewed most favoring
18 the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
19

Claim 49 is denied.

20

i.

21

Petitioner next claims ineffective assistance by counsel’s failure to object to prosecutorial

Review of Claim 50

22 misconduct during closing argument.
23

The California Supreme Court summarily denied claim 50 (SPet. Claim SS) raised in

24 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
25

That court also considered and rejected the claim on direct appeal, finding that:

26
27
28

In his closing argument, co-counsel Frank consistently pointed out the
prosecution's inaccurate statements to the jury, reminding it of the evidence
presented. Counsel's performance in demonstrating for the jury the prosecutor's
153

1
2
3

improper argument reveals counsel's attention to detail rather than incompetence.
Counsel's careful references during the prosecutor's misstatements demonstrates
that defense counsel was aware of the misstatements and, in exercising reasonable
professional judgment, chose not to object for tactical reasons. In any event, we
find no reasonable probability that defense counsel's failure to object prejudiced
defendant's case.

4
5 Sanchez, 12 Cal.4th at 71.
6

Petitioner faults defense counsel’s failure to object when prosecutor Ryals argued in

7 closing that Petitioner killed Mr. Tatman, suggesting the jury was sentencing Petitioner for the
8 Tatman homicide, and argued that the Bocanegras would not have been killed but for the actions
9 of Petitioner.
10

However, the state court, based on the record before it, could have found it reasonable for

11 the defense not to object in such circumstances. (See claim 42; see also Flieger v. Delo, 16 F.3d
12 878, 886 (8th Cir. 1994) (reasonable trial strategies do not amount to ineffective assistance even
13 where unsuccessful).
14

The Tatman conviction was presented to the jury as evidence in aggravation and the jury

15 appropriately admonished and instructed in this regard. Prosecution argument that Petitioner had
16 a principal role in the Tatman killing, and that the Bocanegras would not have been killed
17 without his assistance, did not in all reasonable likelihood mislead the jury or affect the death
18 sentence imposed. The weight of evidence against Petitioner as an aider and abettor of the
19 homicides was substantial. Evidence showed that Petitioner grabbed and held Mr. Bocanegra
20 while Joey got a knife (RT 2843, 2853-54); that Petitioner beat Mr. Bocanegra while Joey
21 stabbed him (RT 2696-2706, 2719-21, 2725, 2843-44, 2854, 2858); that Petitioner rushed Mrs.
22 Bocanegra and told Joey to “shut her up” (RT 2844, 2858); that Petitioner pushed Mrs.
23 Bocanegra into a back room and hit her on the head with a bar while Joey stabbed her (RT 271024 14, 2720-21, 2725, 2752, 2844), and that while this occurred Mrs. Bocanegra’s hands were
25 bound and she was likely gagged (RT 2708, 2723, 2749-51, 2754-55, 2774-2775).
26

Moreover, the jury certainly was made well aware that Mr. Tatman’s stabbing wounds

27 were non-fatal injuries and that Petitioner’s conviction for Mr. Tatman’s murder was based on
28
154

1 his aiding and abetting Reyes. (Id.; RT 2693-94.) Generally, counsel are “given latitude in the
2 presentation of their closing arguments, and courts must allow the prosecution to strike hard
3 blows based on the evidence presented and all reasonable inferences therefrom.” Ceja, 97 F.3d
4 at 1253–1254 (quoting Baker, 10 F.3d at 1415).
5

Petitioner has not made a sufficient showing he was prejudiced by defense counsel’s

6 failure to object to alleged prosecutorial misconduct during closing argument. The evidence
7 against Petitioner was not insubstantial considering the multiple murder special circumstance in
8 the Bocanegra murders and the substantial evidence in aggravation presented during the penalty
9 phase. There is no reasonably likelihood the outcome would have been different absent the
10 alleged prosecutorial misconduct. See Donnelly, 416 U.S. at 643 (improper jury argument by the
11 state does not present a claim of constitutional magnitude unless it is so prejudicial that the
12 petitioner’s trial was fundamentally unfair . . . [t]o establish prejudice, the petitioner must
13 demonstrate either persistent and pronounced misconduct or that the evidence was so
14 insubstantial that, in all probability, but for the remarks, no conviction would have occurred).
15

The state court could reasonably have concluded that Petitioner failed to establish that

16 defense counsel’s performance fell below an objective standard of reasonableness and that, but
17 for counsel's unprofessional errors, the result of the proceeding would have been different.
18 Strickland, 466 U.S., at 687-694.
19

Accordingly, the state court’s rejection of this claim was not contrary to, or an

20 unreasonable application of, clearly established federal law, or an unreasonable determination of
21 the facts in light of the evidence presented in the state court proceeding, viewed most favoring
22 the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
23

Claim 50 is denied.

24

j.

25

In his next claim, Petitioner alleges ineffective assistance by counsel during penalty

Review of Claim 51

26 phase closing Argument.
27

The California Supreme Court summarily denied claim 51 (SPet. Claim TT) raised in

28
155

1 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In this case, “the
2 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
3 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
4 arguments or theories supported or . . . could have supported, the state court’s decision; and then
5 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
6 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
7 added).
8

Generally, counsel are “given latitude in the presentation of their closing arguments, and

9 courts must allow the prosecution to strike hard blows based on the evidence presented and all
10 reasonable inferences therefrom.” Ceja, 97 F.3d at 1253–1254 (quoting Baker, 10 F.3d at 1415);
11 see also Molina, 934 F.2d at 1445 (prosecutor has wide latitude during closing argument to make
12 reasonable inferences based on the evidence).
13

Petitioner contends that defense counsel’s closing argument failed to respond to the

14 prosecutor’s improper argument regarding Petitioner’s involvement in the Tatman and
15 Bocanegra homicides. To this end, Petitioner repeats his allegations in claims 7, 42 and 50, ante,
16 that defense counsel failed to point out evidence discrediting prosecution informant Hernandez
17 (RT 2842, 2847-2848, 3051), and that Petitioner never told Hernandez that he (Petitioner) had
18 stabbed anyone, (RT 2847-2848), and that he (Petitioner) did not inflict the fatal stab wounds
19 upon the Bocanegras, (RT 2846), and that he (Petitioner) had no robbery motive. (RT 2852.)
20 Nonetheless, for the reasons stated in claims 7, 42 and 50, the state court could reasonably have
21 found that the performance of defense counsel was not deficient and did not prejudice the
22 outcome of trial proceedings.
23

The trial judge appropriately admonished the jury that argument is not evidence. As to

24 the evidence, the state court could reasonably have found it weighed substantially against the
25 Petitioner as an aider and abettor of the homicides. The murders occurred about one month after
26 Petitioner’s release from prison for the 1982 assaults. (RT 2877-2879 2973-2974.) The evidence
27 reasonably showed that Petitioner grabbed and held Mr. Bocanegra while Joey got a knife (RT
28
156

1 2843-2854), beat Mr. Bocanegra while Joey stabbed him (RT 2696-2706, 2719-2721, 2725,
2 2843-2844, 2854, 2858), rushed Mrs. Bocanegra and told Joey to “shut her up” (RT 2844, 2858),
3 pushed Mrs. Bocanegra into a back room while Joey stabbed her, hitting her on the head with a
4 bar (RT 2710-2714, 2720-2721, 2725, 2752, 2844), and that Mrs. Bocanegra’s hands were bound
5 and she was likely gagged (RT 2708, 2723, 2749-2751, 2754-2755, 2774-2775).
6

The state court also could have reasonably determined there was no basis upon which

7 Petitioner could have effectively impeached Hernandez.

Petitioner has not shown that

8 Hernandez gave contradictory, inconsistent or false testimony, or that Hernandez was motivated
9 by an undisclosed plea bargain.

No facts or discrepancies between the testimony and the

10 physical evidence establish or compel the conclusion that Hernandez, by virtue of his alleged
11 substance addition, his plea deal, or otherwise, was motivated to and did testify falsely or
12 inaccurately. (SPet. Ex. 900, pp. 4, 11; SResp. Ex. B.) Having cross-examined Hernandez at the
13 preliminary hearing, Toton determined on that basis not to interview him. (SPet. Ex. 137, p. 4.)
14 During cross-examination at the guilt and special circumstance phase, Hernandez’s testimony
15 was consistent with Petitioner’s statements and the physical evidence that he had not been
16 offered any disposition of then pending criminal matters prior to agreeing to testify at the
17 Petitioner prosecution.

(CT 576-577.)

During cross-examination at the penalty phase,

18 Hernandez admitted a deal on a then pending charge in exchange for his testimony in Petitioner.
19 (RT 2850-2851.) Petitioner has not demonstrated that Hernandez’s testimony was false or
20 misleading, or that defense counsel acted unreasonably in not interviewing Hernandez.
21

Petitioner goes on to argue that defense counsel failed to explain the Bocanegra and

22 Tatman evidence and verdicts, and failed to dispel the suggestion Tatman homicide was a capital
23 crime for which they would sentence Petitioner (RT 3055), and failed to support the “lingering
24 doubt” defense (RT 3063-3082). Petitioner points out that, as discussed in claim 42, prosecutor
25 Ryals improperly argued that the jury was to decide whether Petitioner killed Mr. Tatman. (RT
26 3034-3036.) However, the record reflects that defense counsel pointed out improper argument
27 and reminded the jury of the evidence presented in favor of the lingering doubt defense. (RT
28
157

1 3063-3082.)
2

As with the claims above, the jury was made well aware that Mr. Tatman’s stabbing

3 wounds were non-fatal injuries and that Petitioner’s conviction for Mr. Tatman’s murder was
4 based on his aiding and abetting Reyes. (RT 235, 2693-2695.) Defense counsel made his
5 argument to the jury that Petitioner did not intend to kill Mr. Tatman (CT 109; RT 2695), and the
6 Bocanegras (CT 479, 500; see SHCP Ex. 419), and that there may have been a third assailant in
7 the Bocanegra murders. (Pet. Exhs. 121, p. 2; 417, pp. 1-2; SHCP Ex. 137, Att. A.)

Given

8 Petitioner’s desire to plead guilty to the Bocanegra murders, (SPet. Exhs. 520, p. 2; 700), the
9 unrebutted evidence presented at the penalty phase, the admonitions of the trial judge that
10 argument is not evidence, and the potential aggravating and mitigating effects of circumstances
11 surrounding the Tatman murder, it is not reasonably probable that even had defense counsel
12 further responded to Ms. Ryals’s closing statements, a different sentence would have been
13 returned.
14

Accordingly, it could reasonably be found that the prosecution arguments were not so

15 prejudicial as to make trial fundamentally unfair. See Donnelly, 416 U.S. at 643 (improper jury
16 argument by the state does not present a claim of constitutional magnitude unless it is so
17 prejudicial that the petitioner’s trial was fundamentally unfair . . . [t]o establish prejudice, the
18 petitioner must demonstrate either persistent and pronounced misconduct or that the evidence
19 was so insubstantial that, in all probability, but for the remarks, no conviction would have
20 occurred); see also Furman, 190 F.3d at 1006 (rejecting habeas claim where, although some of
21 prosecutor’s arguments were improper, jury was told comments were not evidence, and evidence
22 against defendant was substantial).
23

The state court could have reasonably concluded that Petitioner failed to establish that

24 defense counsel’s performance fell below an objective standard of reasonableness and that, but
25 for counsel’s unprofessional errors, the result of the proceeding would have been different.
26 Strickland, 466 U.S., at 687-694.
27

A fair-minded jurist could therefore reasonably conclude that

28
158

Petitioner failed to

1 establish rejection of the claim was contrary to, or an unreasonable application of, clearly
2 established federal law, or an or an unreasonable determination of the facts in light of the
3 evidence presented in the state court proceeding, viewed most favoring the prosecution. Jackson,
4 443 U.S. at 319. See 28 U.S.C. § 2254(d).
5

Claim 51 is denied.

6

k.

7

Petitioner claims cumulative ineffectiveness during the penalty phase, citing to claims 43-

Review of Claim 52

8 51, which he contends demonstrate defense counsel’s failure to present evidence of Petitioner’s
9 minimal culpability, mitigating factors and defenses to the Tatman and Bocanegra homicides.
10

The California Supreme Court summarily denied claim 52 (SPet. Claim UU) raised in

11 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
12

The California Supreme Court considered this issue on direct appeal and rejected it,

13 finding that:
14
15
16

Defendant claims that in combination, the errors at the penalty phase caused
cumulative prejudice warranting a reversal of penalty. After review of the record,
we disagree. Any prosecutorial misconduct that did occur did not significantly
influence the fairness of defendant’s trial or detrimentally affect the jury’s
determination of the appropriate penalty. [Citation]

17
18 Sanchez, 12 Cal.4th at 84.
19

For the reasons discussed in claims 43-51, the state court could reasonably have

20 determined that Petitioner failed to establish in those claims that defense counsel was ineffective
21 at penalty phase. These claims are insubstantial when considered cumulatively. See Karterman,
22 60 F.3d at 580; Rupe, 93 F.3d at 1445.
23

Respondent contends claim 52 is not cognizable because it creates and retroactively

24 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
25 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
26 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
27

Accordingly, this Court does not find Petitioner has established that defense counsel’s

28
159

1 cumulative performance at penalty phase fell below an objective standard of reasonableness and
2 that, but for counsel’s unprofessional errors, the result of the proceeding would have been
3 different. Strickland, 466 U.S., at 687-694.
4

The state court’s rejection of this claim was not contrary to, or an unreasonable

5 application of, clearly established federal law, or an unreasonable determination of the facts in
6 light of the evidence presented in the state court proceeding, viewed most favoring the
7 prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
8

Claim 52 is denied.

9

l.

10

Review of Claim 53

In this claim, Petitioner alleges ineffective assistance of counsel due to conflict of interest

11 arising from publicity about defense counsel Toton’s pending disbarment.
12

The California Supreme Court summarily denied claim 53 (SPet. Claim VV) raised in

13 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In this case, “the
14 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
15 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
16 arguments or theories supported or . . . could have supported, the state court’s decision; and then
17 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
18 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
19 added).
20

The Sixth Amendment provides that a criminal defendant shall have the right to “the

21 Assistance of Counsel for his defense.” As a general matter, a defendant alleging a Sixth
22 Amendment violation must demonstrate “a reasonable probability that, but for counsel’s
23 unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
24 U.S. at 694. An exception exists for cases in which counsel actively represents conflicting
25 interests. Mickens, 535 U.S. at 166; Cuyler, 446 U.S. at 345-50. In such a case, prejudice is
26 presumed. Id. However, Petitioner must establish that “an actual conflict of interest actually
27 affected the adequacy of [defense counsel’s] representation.” Sullivan, 446 U.S. at 348-49.
28
160

1 Thus, “until a defendant shows that his counsel actively represented conflicting interests, he has
2 not established the constitutional predicate for his claim of ineffective assistance.” Id., at 350
3 (emphasis in original).
4

Petitioner cites to the facts in claims 23, 24 and 43 and alleges that lead defense counsel

5 Toton’s disbarment publicity placed Toton in an actual conflict of interest of a personal and
6 financial nature, preventing his effective assistance at penalty phase in ways not fully disclosed
7 to Petitioner. The trial judge, according to Petitioner, did not adequately inquire into the matter
8 and thereby allowed Toton to remain on the case. Petitioner alleges the trial judge never
9 questioned Toton specifically about the debarment (Sealed RT July 26, 1988, at pp. 80-84),
10 never obtained a copy of the debarment hearing decision, and agreed to Toton’s proposal to have
11 co-defense counsel Frank talk to Petitioner about the debarment. (Id., at p. 82-84.) Petitioner
12 asserts that Toton sought to avoid the issue of debarment. Toton refused to appear at the
13 debarment hearing. (SHCP Ex. 517, p. 8.) He refused to comment to reporters about the issue.
14 (SCHP Exhs. 703, 704.)
15

This Court finds it unlikely that Toton’s pending debarment influenced his actions as

16 defense counsel, for reasons discussed by the state court. See Sanchez, 12 Cal.4th at 45-48,
17 summarized as follows. Toton’s refusal to allow Petitioner to plead guilty lengthened rather than
18 shortened the duration of this proceeding.

Toton participated in arrangements for defense

19 investigation and engaged in pre-trial preparation. (RT [5/16/88] 3-4.) He conducted pre-trial
20 discovery (CT 649-663, 769), made preemptory challenges (CT 836-840) filed evidentiary
21 motions (CT 841-45, 846-53, 854-58, RT 80, 97-113), conducted vigorous witness examination
22 and cross-examination (CT 518-625; RT 2664-2670), and made a reasoned closing argument
23 (RT 169-196). The evidentiary record simply does not suggest the pace, manner and method of
24 Toton’s representation was influenced by the disciplinary proceedings. Toton was not disbarred
25 until eight months after the court and defendant learned of the proceedings against him, and
26 several month after completion of the penalty phase of defendant’s trial. Sanchez, 12 Cal.4th at
27 45-48.
28
161

1

Even if there were a conflict, Petitioner was aware of the possible problems with Toton’s

2 continued representation and his right to conflict free representation, having discussed these
3 matters with co-counsel Frank for approximately an hour and he expressly waived any such
4 conflict. Sanchez, 12 Cal.4th at 46; RT [7/27/88] 4-10. Based thereon, the state supreme court
5 could reasonably have found that Petitioner validly waived any such conflict on the record and
6 decided to keep Toton as counsel. See Sanchez, 12 Cal.4th at 37-39, 45-46.
7

Petitioner alleges that it was likely that one or more jurors was aware of Toton’s adverse

8 publicity and, given Toton’s failure to withdraw, was prejudiced by it. However, he offers no
9 evidentiary predicate supporting the allegation. The evidence does not suggest the trial court’s
10 failure to question juror’s about Toton’s debarment rendered trial “fundamentally unfair.” (See
11 RT 591-609 (juror Jones), RT 647-669 (juror Mooney), RT 1168-1183 (juror Roberts), RT 133812 1355 (juror Crowder), RT 1813-1831 (juror Razo), RT 1879-1892 (juror Stell), RT 2117-2136
13 (juror G. Clark), RT 2137-2155 (juror P. Clark), RT 2401-2412 (juror O’Toole), RT 2435-2448
14 (juror Raymond), RT 2454-2472 (juror Rodriguez), RT 2554-2566 (juror Zamora)). For reasons
15 more fully discussed in claims 49 ante, and 55, post, this Court agrees with the California
16 Supreme Court’s determination that there was “no showing the jury was unfair or biased.”
17 Sanchez, 12 Cal. 4th at 62, n.6. As noted by that court, during voir dire only two of the jurors
18 selected, Razo and Rodriguez, had heard of the case.

(RT 1814-1815; 2458-2460, 2471.)

19 Neither of those two jurors mentioned having hearing of Toton. Both of those jurors indicated
20 they could put what they had heard out of mind while deliberating. Id. Petitioner proffers no
21 evidence these statements were somehow untrue.

The state court could have reasonably

22 determined that none of the jurors selected were exposed to media coverage of Toton’s
23 disciplinary matters. Sanchez, 12 Cal.4th at 61; claim 55, post. Moreover, the state court could
24 reasonably find that questioning jurors about the publicity was likely to be more prejudicial than
25 that publicity itself. (SHCP Ex. 137, ¶ 29.)
26

Petitioner has not established that defense counsel’s performance at the penalty phase fell

27 below an objective standard of reasonableness and that, but for counsel’s unprofessional errors,
28
162

1 the result of the proceeding would have been different. Strickland, 466 U.S., at 687-694. It was
2 not objectively unreasonable for the state court to find there was no reasonable probability any
3 juror was aware of the debarment proceeding and influenced by it. See Sanchez, 12 Cal.4th at 61.
4

Accordingly, the Court finds that a fair-minded jurist could have found that Petitioner

5 failed to establish that the state court rejection of the claim was contrary to, or an unreasonable
6 application of, clearly established federal law, or an or an unreasonable determination of the facts
7 in light of the evidence presented in the state court proceeding, viewed most favoring the
8 prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
9

Claim 53 is denied.

10

m.

11

In his next claim, Petitioner alleges that juror George Razo was not an impartial juror.

12

The California Supreme Court summarily denied claim 54 (SPet. Claim KK) raised in

Review of Claim 54

13 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD). In this case, “the
14 habeas petitioner’s burden still must be met by showing there was no reasonable basis for the
15 state court to deny relief,” Richter, 562 U.S. at 98, and this Court “must determine what
16 arguments or theories supported or . . . could have supported, the state court’s decision; and then
17 it must ask whether it is possible fair-minded jurists could disagree that those arguments or
18 theories are inconsistent with the holding in a prior decision of this Court.” Id. (emphasis
19 added).
20

“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of

21 impartial, ‘indifferent’ jurors.” Irvin, 366 U.S. at 722; see also Skilling, 561 U.S. at 377-78.
22 “[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to
23 identify unqualified jurors.” Morgan v. Illinois, 504 U.S. 719, 729 (1992). “Voir dire ‘is
24 conducted under the supervision of the court, and a great deal must, of necessity, be left to its
25 sound discretion.’” Ristaino v. Ross, 424 U.S. 589, 594 (1976) (quoting Connors v. United
26 States, 158 U.S. 408, 413 (1895)). “[T]he trial court retains great latitude in deciding what
27 questions should be asked on voir dire.” Mu’Min, 500 U.S. at 424. No hard-and-fast formula
28
163

1 dictates the necessary depth or breadth of voir dire, see United States v. Wood, 299 U.S. 123,
2 145–146 (1936), and “[t]he Constitution . . . does not dictate a catechism for voir dire, but only
3 that the defendant be afforded an impartial jury.” Morgan, 504 U.S. at 729. A trial court’s failure
4 to ask certain questions does not violate the Constitution unless it “render[s] the defendant’s trial
5 fundamentally unfair.” Mu’Min, 500 U.S. at 426.
6

Petitioner contends that, during voir dire, Razo admitted his exposure to a news article

7 about this case and stated that the murder of his cousin four years earlier would not affect his
8 deliberations (RT 1815, 1822), but after the trial, Razo stated to a defense investigator that his
9 cousin’s murder may have had some impact on him in Petitioner’s case. (SPet. Exhs. 124, App.
10 B, ¶ 5; 124, ¶ 13.)
11

The record before the state court shows that juror Razo stated during voir dire that he

12 recalled reading an article in the Bakersfield Californian that included Petitioner’s picture and
13 stated his involvement in a number of alleged criminal activities. (RT 1814-1816.) Razo stated
14 that the article and the murder of his cousin four years earlier would not affect his deliberations.
15 (RT 1821-1822.) The evidence in the record suggests it unlikely that Razo’s deliberation was
16 affected by the article. (See claim 49, ante.) Nor are Razo’s post-trial hearsay and unsigned
17 statements competent evidence that he was other than truthful during voir dire concerning his
18 cousin’s murder. See Fed. R. Civ. P. 802; Fed. R. Evid. 606(b); Cal. Evid. Code § 1150.
19

In addition, Petitioner has not demonstrated prejudice, i.e., that the error had a

20 “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.
21 at 638. For the reasons just discussed, the state court could reasonably have concluded that
22 Razo’s deliberations were unaffected by the article.
23

Accordingly, it was not objectively unreasonable for the State Supreme Court to find

24 there was no reasonable probability juror Razo was other than an impartial juror. 28 U.S.C. §
25 1746; Ortiz v. INS, 179 F.3d 1148, 1153-54 (9th Cir. 1994) (no ineffective assistance where no
26 demonstration of prejudice).
27

The state court could reasonably have concluded that Petitioner failed to establish that the

28
164

1 performance of defense counsel at the penalty phase fell below an objective standard of
2 reasonableness and that, but for counsel’s unprofessional errors, the result of the proceeding
3 would have been different. Strickland, 466 U.S., at 687-694.
4

The Court finds that a fair-minded jurist could have found that Petitioner failed to

5 establish that the state court rejection of the claim was contrary to, or an unreasonable
6 application of, clearly established federal law, or an unreasonable determination of the facts in
7 light of the evidence presented in the state court proceeding, viewed most favoring the
8 prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
9

Claim 54 is denied.
Review of Claim 559

10

n.

11

In this claim, Petitioner alleges court error by failure to voir dire the jury regarding

12 publicity about defense counsel’s pending disbarment.
13

The California Supreme Court considered this claim on appeal and found that the defense

14 had not objected on this ground or sought a curative admonition at trial and thus waived the issue
15 on appeal. Sanchez, 12 Cal.4th 61-62. That court also found that there was “no showing the jury
16 was unfair or biased”, Sanchez, 12 Cal. 4th at 62, n.6, and that “the trial court’s voir dire
17 adequately insured an impartial jury, without unnecessarily exposing the jury to the very
18 information defendant found could prejudice his case.” Sanchez, 12 Cal.4th at 62.
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of

19

20 impartial, ‘indifferent’ jurors.” Irvin, 366 U.S. at 722; see also Skilling, 561 U.S. at 377-78.
21 “[T]he trial court retains great latitude in deciding what questions should be asked on voir dire.”
22 Mu’Min, 500 U.S. at 424. A trial court’s failure to ask certain questions does not violate the
23 Constitution unless it “render[s] the defendant’s trial fundamentally unfair.” Mu’Min, 500 U.S.
24 at 426.
25

Two specific inquires of voir dire are constitutionally compelled: inquiries into racial

26 prejudice against a defendant charged with a violent crime against a person of a different racial
27
28

9

The legal basis of the Eighth Amendment was stricken as unexhausted. ECF No. 60 at 9:5.

165

1 group, id., at 424; and, in a capital case, inquiries into a juror’s views on capital punishment.
2 Morgan, 504 U.S. at 730-732.

Petitioner does not raise such a basis for compelled inquiry in

3 this claim. Instead he claims that the voir dire questionnaire, the trial court, and defense counsel
4 all failed to inquire whether prospective jurors had heard anything about the attorneys in this
5 case.
6

The Court is unpersuaded by this claim for reasons discussed in claim 49, ante. During

7 voir dire, the following eight jurors indicated they had never heard of the case, did not know
8 counsel, and did not subscribe to and did not usually read the Bakersfield Californian: juror
9 Jones (CT 258; RT 594, 596-597, 606); juror Mooney (CT 256, RT 647, 664); juror Roberts
10 (CT 237, RT 1170); juror Stell (CT 184, RT 1882); juror G. Clark (CT 229, RT 2120); juror P.
11 Clark (CT 228; RT 2140-2141); juror O’Toole (CT 220, RT 2401-2402, 2406); and juror
12 Raymond (CT 217, RT 2438-2439). Two jurors, juror Crowder (CT 207; RT 1342-1343) and
13 juror Zamora (CT 213; RT 2554, 2563) regularly read the Bakersfield Californian but were
14 unaware of the case and did not know counsel.
15

Only two of the jurors selected, Razo and Rodriguez, stated they had heard of the case.

16 (RT 1814-1815; 2458-2460, 2471-2472.) Neither mentioned having hearing of Toton; both
17 indicated they did not believe everything they read in newspapers and could put what they had
18 heard out of mind while deliberating. Id. Petitioner proffers no evidence these juror statements
19 were untrue. The state court could reasonably have found that prospective jurors were properly
20 voir dired regarding any pretrial publicity without exposing them to the allegedly prejudicial
21 information.
22

Based on the record, the state court could reasonably have found that specific voir dire

23 regarding Toton’s disbarment proceeding was unnecessary and could serve to education the
24 jurors on the potentially prejudicial information. See Mu’Mun, 500 U.S. at 425-428 (1991) (trial
25 court’s failure to ask questions must “render the defendant’s trial fundamentally unfair” and may
26 be overturned only for “manifest error.”).
27

Nor has Petitioner pointed to evidence that demonstrates prejudice, i.e., that the error had

28
166

1 a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507
2 U.S. at 638 (1991). For the reasons just discussed, the state court could reasonably have
3 concluded that, despite the limited voir dire regarding Toton’s pretrial publicity, Petitioner
4 received a fair trial.
5

Accordingly, the state court could reasonably have concluded that Petitioner failed to

6 establish that defense counsel’s performance fell below an objective standard of reasonableness
7 and that, but for counsel’s unprofessional errors, the result of the proceeding would have been
8 different. Strickland, 466 U.S., at 687-694.
9

The state court rejection of the claim was not contrary to, or an unreasonable application

10 of, clearly established federal law, or an unreasonable determination of the facts in light of the
11 evidence presented in the state court proceeding, viewed most favoring the prosecution. Jackson,
12 443 U.S. at 319. See 28 U.S.C. § 2254(d).
13

Claim 55 denied.

14

o.

15

In his next claim, Petitioner alleges prejudicial and misleading victim photos were

Review of Claim 56

16 erroneously admitted at trial. He complains of autopsy photographs, excluded at the guilt phase,
17 and admitted over defense objection at the penalty phase, and of crime scene victim photographs
18 not objected to by the defense that were admitted during the penalty phase. According to
19 Petitioner, these photos were cumulative of other testimony and misleading as to Petitioner’s
20 culpability in the homicides as they showed injuries not inflicted by Petitioner. He claims the
21 photographs had an impact on jurors.
22

The California Supreme Court summarily denied claim 56 (SPet. Claim NN) raised in

23 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
24

Additionally, the state supreme court found on direct appeal that admission of autopsy

25 photographs was not prejudicial error:
26
27
28

We have examined [the autopsy photographs] and have determined “they are not so
horrific or shocking that we can conclude the trial court abused its discretion in
admitting them.” [Citation] The jury was familiar with the facts of the crime, and
the photographs had substantial probative value in demonstrating defendant’s
167

1
2
3
4
5
6
7
8
9

culpability as an aider and abettor, and as corroborative of Hernandez’s testimony
implicating defendant in the crimes. Moreover, the probative value of the
photographs was not diminished simply because the scalp wounds alone were not
fatal to the victims. The photographs corroborated the testimonial evidence and
were “relevant to a determination of the appropriateness of the death penalty.”
[Citation]
Defendant’s claim that there was no dispute as to the circumstances of the murders
is not supported by the facts. Defense counsel Frank argued at the penalty phase
that defendant should be spared the death penalty if the jury had a “lingering doubt”
about the extent of defendant’s participation in the Bocanegra killings.
. . . [T]he autopsy photographs depicting the Bocanegras’ scalp wounds were
clearly probative of (i) the manner in which the victims were wounded, (ii)
defendant’s culpability as an aider and abettor, (iii) the malice and aggravation of
the crime, and (iv) the appropriate ultimate penalty. [Citation] . . . [T]he court did
not err in admitting the autopsy photographs at the penalty phase.

10 Sanchez, 12 Cal.4th 64-65.
11

A due process claim can be stated where graphic photos of victims make the trial

12 fundamentally unfair. Jammal, 926 F.2d at 919. However, photos that are relevant to the crime
13 charges and elements thereof are admissible. See Villafuerte, 75 F.3d at 1343. Under California
14 law, “photographs which disclose the manner in which the victim was wounded are relevant on
15 the issues of malice and aggravation of the crime and the penalty.” Thompson, 50 Cal.3d at 182.
16

The Court finds that, based on the evidentiary record, and for the same reasons discussed

17 in claim 45, the state court could reasonably have found that the two autopsy photos of Mr.
18 Bocanegra and Mrs. Bocanegra’s scalp wounds (People’s Exhs. 13, 14), and the victim and
19 crime scene photos (People’s Exhs. 5-9, 15-43 and 55-66) served to corroborate testimony as to
20 circumstances of the murders, defense counsel arguments of diminished culpability (see RT
21 3051-3055), and were relevant and probative as aggravation evidence and going to penalty
22 selection. Autopsy photographs of scalp wounds to Mr. Bocanegra and Mrs. Bocanegra were
23 properly admitted as relevant to expert testimony and issues of aggravation and penalty and were
24 not unnecessarily gruesome. The crime scene and autopsy photographs could reasonably be seen
25 by the state court as relevant to circumstances of the murders, identities of murders and murders’
26 states of mind.
27

It appears unlikely that Petitioner was subjected to prejudice from defense counsel’s

28
168

1 failure to object to the introduction of crime scene photographs depicting the wounds of the
2 Bocanegras and Mr. Tatman.

The trial court did not find the photographs prejudicial as

3 depicting a “blood and guts type of thing. . . .” (RT 2881-2882.) The California Supreme Court
4 could reasonably have found the photographs relevant and probative of charges and elements
5 including intent to kill, aggravation and penalty, such that defense counsel’s failure to object did
6 not necessarily demonstrate ineffective assistance. See Nefstad, 66 F.3d 335, at *3 (holding no
7 violation of due process where prosecutor during closing argument shows photographs of victim
8 before and after murder because relevant to intent).
9

Admission of the photographs did not render trial “fundamentally unfair.” Batchelor v.

10 Cupp, 693 F.2d 859, 865 (9th Cir. 1982) (admission of photographs lies largely within the
11 discretion of the trial court, whose ruling will not be disturbed . . . unless the admission of the
12 photographs rendered the trial fundamentally unfair).

Defense counsel Frank argued his

13 lingering doubt theory, (RT 3048-3072), that Petitioner did not intend to kill or assist in killing
14 Mr. Tatman (id.,), and that Petitioner had no criminal intent when he went to the Bocanegra
15 residence (id.).
16

Additionally, even without the photographs, it is not reasonably probable the jury would

17 have returned a sentence less than death.

The evidence in aggravation including the

18 circumstances surrounding the murders of the Bocanegras and Mr. Tatman, and Petitioner’s 1982
19 assaults on Ammarie and Pena, was not insubstantial. (RT 2863-2874.)
20

Accordingly, the state court could have found that Petitioner failed to establish that

21 defense counsel’s performance at penalty phase fell below an objective standard of
22 reasonableness and that, but for counsel's unprofessional errors, the result of the proceeding
23 would have been different. Strickland, 466 U.S., at 687-694.
24

This Court does not find that the state court rejection of the claim was contrary to, or an

25 unreasonable application of, clearly established federal law, as determined by the Supreme
26 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
27 light of the evidence presented in the state court proceeding, viewed most favoring the
28
169

1 prosecution, Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
2

Claim 56 is denied.

3

p.

4

Petitioner next claims that the trial court erred by inadequately and erroneously

Review of Claim 57

5 explaining the guilt verdicts and by improperly restricting defense counsel’s closing argument
6 regarding the guilt verdicts.
7

The California Supreme Court summarily denied this claim (SPet. Claim II) raised in

8 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
9

The state supreme court also considered and rejected this claim on direct appeal. That

10 court found that Petitioner failed to meet the state procedural requirement of timely objection and
11 thus waived the issue on appeal and was procedurally barred on collateral review, noting that:
12
13
14
15

[C]ounsel did not object to the court's incorrect reading of the multiple-murder
special-circumstances verdict. Hence, if any error occurred, it was waived.
[Citation] Moreover, even if counsel had objected, we would find any error the
court made in reading incorrectly the multiple-murder special-circumstance
findings, or any confusion caused by the court's verdict as to the Tatman charges,
could have been rendered harmless by an admonition to the jury.

16 Sanchez, 12 Cal.4th at 75.
17

The state supreme court went on to consider the trial court’s verdict misstatement and

18 defense attorney Frank’s argument to the jury clarifying and arguing the Tatman verdict, as
19 follows:
20
21
22
23
24
25
26
27
28

Prior to penalty phase arguments, at defense counsel Frank's request, the trial
court read the information and summarized the guilt verdict, including the special
circumstances findings, for the jury. In summarizing the verdict, the court
purported to read from the August 3, 1988, minute order which . . . found true the
multiple-murder special circumstance with respect to the Bocanegra murders only
and did not include the Tatman murder in the special-circumstance disposition.
Purporting to read from the August 3 minute order, the court inexplicably
included Tatman as part of the [special circumstance] finding when it summarized
the verdict to the jury. That finding is not in the record copy of the minute order.
Also during penalty phase argument, Frank explained to the jury the meaning of
the felony-murder charges in the Tatman verdict, and discussed defendant's role as
an accomplice in the Tatman robbery and murder in an apparent attempt to clarify
the court's allegedly inconsistent verdicts finding defendant guilty of the first
degree murder and robbery of Tatman, but finding not true the robbery-murder
special circumstance. Frank's explanation of the felony-murder verdict was
170

interrupted by Ryals's successful objection. Defendant now complains that the
court's erroneous inclusion of the Tatman murder as part of the multiple-murder
special-circumstance finding in the Bocanegra murders, and its failure to explain
(or allow counsel to adequately explain) its allegedly inconsistent verdict and
special-circumstance finding in the Tatman murder verdicts amounted to “the use
of false or misleading evidence in capital sentencing” in violation of defendant's
Fourteenth Amendment right to due process, and the Eighth Amendment right to a
fair trial. [Citation]

1
2
3
4
5

In addition, Frank's penalty phase argument explained to the jury the meaning of
the Tatman verdict: “The significance of what [defendant] was and wasn't
convicted of, I would submit to you, establishes a lot of facts, number one, that he
himself did not kill Woodrow [Wilson] Tatman. You heard the evidence. I think
you can infer from the evidence, from the verdicts that it was not Ted Sanchez
who killed Mr. Tatman, it was Robert Reyes. I submit to you that you can
logically infer from what you've heard that Ted Sanchez did not kill Mr. Tatman
nor did he share in Robert Reyes' intent to kill Mr. Tatman. Ted's role in that
tragic incident was limited to removing some of Mr. Tatman's property. You
heard the evidence. Mr. Tatman was not supposed to even have known that his
property had been taken . . . .”

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

;

Frank next repeated to the jury: “Robert Reyes took it upon himself to kill, but
Ted had no part in that.” Frank then explained the multiple-murder specialcircumstance findings and argued the circumstances of the Bocanegra murders as
a mitigating factor. . . .
“Now let's turn to the charges involving the Bocanegras. Teddy was charged in
count two of the Information with having killed Mr. Bocanegra and in count three
of the Information with having killed Mrs. Bocanegra. Each count carried with it
the special circumstance that the murder had been committed during the course of
a robbery. Although he was found guilty of the murders of Mr. and Mrs.
Bocanegra, the special circumstance that the murders occurred during the course
of a robbery were not found true. In addition, he was found not guilty of robbing
the Bocanegras as was alleged in count five.
“I submit to you that the importance of all this is that you can infer that when Tedthat when Ted went over to the Bocanegra house he did not do so with the intent
to rob him. In fact, I would submit that you can infer that when he went over to
that house he didn't intend to commit any criminal acts against the Bocanegras,
and that it wasn't until after Joey and his father started fighting that Teddy thought
about engaging in any criminal activity.
“Now, I bring all this to your attention because the law says that you can take into
account the circumstances of the crimes when you deliberate on the issue of
penalty . . . .
“Now this factor is general, looked upon as being an aggravating factor, one that
doesn't usually contain any mitigating value, but I submit to you that, in this case,
if you look closely at the facts and circumstances of what transpired at the Tatman
and Bocanegra residence[s], you will find significant mitigating values there.”
Frank thereafter told the jury that it was Reyes, not defendant, who killed Tatman,
and that defendant “had no criminal intent when he went over to [the Bocanegras']
house.” He also argued that these same facts could be interpreted as mitigating
evidence . . . Frank's argument likely clarified for the jury any misperceptions
about the verdict that occurred in light of the court's statement of the verdict.
171

1
Sanchez, 12 Cal.4th at 74-76.

The state court, upon considering the foregoing found the

2
misstatement to be alternatively procedurally barred and harmless:
3
4
5
6
7
8
9
10

We conclude any error the court made in the court's verdict statement was
harmless. Defendant requested the court read the verdict and special circumstance
findings, and failed to correct the court or offer clarifying instructions in order to
remedy any misperceptions the jury may have had about the verdict. Moreover,
counsel's explanation of the verdict to the jury during argument more than
clarified any potential confusion the jury may have experienced following the
court's explanation. The prosecutor did not mention the erroneous verdict, or
capitalize on its inclusion. Defendant was convicted of three counts of first degree
murder, including one supportable special-circumstance allegation, as well as two
counts of use of a deadly weapon, and one count of robbery. Under these
circumstances, there is no reasonable possibility that consideration of the court's
potentially confusing reading of the guilt phase verdict could have improperly
influenced the jury. [Citation]

11 Sanchez, 12 Cal.4th at 76.
12

Petitioner contends that the trial court misled the jury, telling them Petitioner was guilty

13 of Mr. Tatman’s first degree murder, and guilty of robbery of Mr. Tatman, but not guilty of the
14 robbery special circumstance under California Penal Code section 190.2(a)(17). In Petitioner’s
15 view, the jury was unaware the verdict implicitly found that Petitioner was not Mr. Tatman’s
16 actual killer and that Petitioner was found not to have intended the killing of Mr. Tatman.
17

The Court finds, however, that the state supreme could reasonably have determined that

18 the trial court reading of the guilt verdicts was adequately clarified by defense counsel’s penalty
19 phase argument. Defense attorney Frank pointed out to the jury where the evidentiary record
20 supported inference from the verdicts that Petitioner did not intend to kill Mr. Tatman and did
21 not kill him. Sanchez, 12 Cal.4th at 74-77. Frank’s argument was sufficient to make harmless
22 any error by the trial court in explaining the verdicts.
23

Petitioner contends the trial court errantly explained the verdict regarding the “multiple

24 murder” special circumstance, stating such was predicated on the murders of Mr. Tatman and
25 Mr. Bocanegra when in fact it was predicated on the murders of Mr. & Mrs. Bocanegra.
26 Petitioner claims this misled the jury into believing the Tatman murder was a capital crime and
27 as such was an aggravating factor. Here as well, the state supreme court could reasonably have
28
172

1 found defense counsel Frank’s argument and the court’s admonitions and instructions to be
2 sufficiently clarifying of misstatement by the trial court. Frank argued at penalty phase that,
3 based on the evidence, Petitioner had no criminal intent when he arrived at the Bocanegra home,
4 and explained to the jury the meaning of the felony-murder charges in the Tatman verdict, and
5 discussed defendant's role as an accomplice in the Tatman murder and robbery. Id.; RT 30526 3072. These defense arguments sufficiently clarified the trial court’s allegedly inconsistent
7 verdicts finding defendant guilty of the first degree murder and robbery of Mr. Tatman but
8 finding not true the robbery-murder special circumstance.
9

Petitioner contends that the trial court improperly restricted Frank’s closing argument

10 regarding the Tatman conviction and felony murder rule, on grounds the rule was not part of the
11 evidence. Petitioner maintains this was error in that the prosecution had argued to the jury that
12 Petitioner killed Mr. Tatman, treating the first degree felony-murder conviction as a capital
13 crime. However, as Respondent correctly notes, the felony murder rule was not in evidence or
14 part of the jury instructions.

Defense counsel Frank was not restricted in arguing the

15 circumstances surrounding the Tatman murder and verdict. Petitioner was able to argue the
16 inference that he did not intend to kill Mr. Tatman and did not kill him. Defense counsel Frank’s
17 closing argument stated and clarified the specific charges levied and those upon which Petitioner
18 was convicted and argued for mitigation based on the facts and circumstances in the evidentiary
19 record. (RT 3050-3072.)
20

The state record does not reasonably suggest the likelihood that the trial court verdict

21 statement improperly influenced the jury. Any error in the trial court’s statement of the verdicts,
22 that the multiple murder circumstance was based on the murders of Mr. Tatman and Mr.
23 Bocanegra, was harmless because, based on Frank’s penalty phase and closing arguments (RT
24 3050-3072) and the instructions given (RT 2611-2616, 3082-3097; CT 979-1021), there is no
25 reasonable probability the jury mistakenly believed Tatman was a capital crime.
26

Accordingly, Petitioner has not established that defense counsel’s performance at penalty

27 phase fell below an objective standard of reasonableness and that, but for counsel's
28
173

1 unprofessional errors, the result of the proceeding would have been different. Strickland, 466
2 U.S., at 687-694.
3

This Court does not find that the state court rejection of the claim was contrary to, or an

4 unreasonable application of, clearly established federal law, as determined by the Supreme
5 Court, or that the state court's ruling was based on an unreasonable determination of the facts in
6 light of the evidence presented in the state court proceeding, viewed most favoring the
7 prosecution, Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
8

Claim 57 is denied.

9

q.

10

Review of Claim 5810

In his next claim, which includes multiple subclaims, Petitioner alleges inadequate and

11 unconstitutional jury instructions at the penalty phase. The subclaims are reviewed separately.
12

i.

13

Petitioner alleges that the trial court rejected his “lingering doubt” instruction even

Lingering Doubt

14 though California law mandates mitigating consideration of lingering doubt and defense counsel
15 argued discrepancies in Hernandez’s testimony created lingering doubt as to Petitioner’s guilt.
16

The state supreme court reached and rejected this subclaim on direct appeal, finding that

17 the trial court did not err in rejecting Petitioner’s specific instruction on lingering doubt:
18

Defendant's proposed instruction asked the jury to “consider as a mitigating factor
residual or lingering doubt as to Mr. Sanchez's guilt for the crimes of which he has
been convicted.” Although defendant recognizes that the state and federal
Constitutions do not require a residual doubt instruction, he asserts the instruction
should have been given in this case because it was warranted by the evidence. He
relies on section [California Penal Code §] 190.3, factor (f), which gives the judge
discretion to instruct the jury “on any points of law pertinent to the issue,” and
case law that holds section 190.3, factor (f) may require a court to give the
“residual doubt” instruction should the evidence warrant it. [Citation] Claiming
that the evidence was insufficient to find him guilty of the first degree murders of
Mr. and Mrs. Bocanegra, defendant contends “residual doubt” was “a
circumstance of the capital crimes that could be considered by the jury under both
[section] 190.3, factors (a) and (k).”

19
20
21
22
23
24
25

We find no error. It is true, as defendant claims, that the jury's consideration of
residual doubt is proper; defendant may assert his possible innocence to the jury
as a factor in mitigation under section 190.3, factors (a) and (k). [Citation] But

26
27
10

The legal basis of the Fifth Amendment, and the legal basis of the Sixth Amendment except with regard to the

28 lingering doubt instruction was stricken as unexhausted. ECF No. 60 at 9:6-8.
174

1
2
3
4
5
6
7
8
9
10
11
12

there is no requirement, under either state or federal law, that the court specifically
instruct the jury to consider any residual doubt of defendant's guilt. [Citation]
Here, the trial court instructed the jury that it could consider “[t]he circumstances
of the crime of which defendant was convicted in the present proceeding and the
existence of any special circumstance found to be true” (§ 190.3, factor (a)), and
“any other circumstance which extenuates the gravity of the crime, even though it
is not a legal excuse for the crime, and any sympathetic or other aspect of the
defendant's character or record that the defendant offers as a basis for a sentence
less than death, whether or not related to the offense for which he is on trial” (Id.,
factor (k)). These instructions on the scope of mitigating circumstances
sufficiently encompassed the concept of residual doubt about defendant's guilt.
[Citation]
In addition, as we have observed, defense counsel told the jury that the
circumstances of the crimes could be viewed as mitigating evidence of defendant's
intent to kill. He also emphasized to the jury that section 190.3, factor (k) allows it
to “consider any aspect of the defendant's character or record that he offers as a
basis for a sentence less than death,” and asked the jury whether it had “some
lingering doubts about what [it] would have seen” if it had been inside the
Bocanegra residence at the time of the murders. In light of the proper instructions
given to the jury, and counsel's argument, we conclude the trial court did not err in
rejecting defendant's specific instruction on lingering doubt. [Citation]

13 Sanchez, 12 Cal.4th at 77-83.
14

“[T]he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest

15 kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a
16 defendant's character or record and any of the circumstances of the offense that the defendant
17 proffers as a basis for a sentence less than death.” Lockett, 438 U.S. 586 at 604; Eddings v.
18 Oklahoma, 455 U.S. 104, 113-114 (1982) (adopting rule in Lockett). “The standard against
19 which we assess whether jury instructions satisfy the rule of Lockett and Eddings was set forth in
20 Boyde, 494 U.S. 370 (1990).” Johnson v. Texas, 509 U.S. 350, 367-68 (1993). In Boyde, the
21 Supreme Court held that “there is no . . . constitutional requirement of unfettered sentencing
22 discretion in the jury, and States are free to structure and shape consideration of mitigating
23 evidence ‘in an effort to achieve a more rational and equitable administration of the death
24 penalty.’” Boyde, 494 U.S. at 377 (quoting Franklin, 487 U.S. at 181 (plurality opinion)).
25

In evaluating the instructions, the “reviewing court must determine ‘whether there is a

26 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents
27 the consideration of constitutionally relevant evidence.’” Johnson, 509 U.S. at 367 (quoting
28
175

1 Boyde, 494 U.S. at 380). “[W]e do not engage in a technical parsing of this language of the
2 instructions, but instead approach the instructions in the same way that the jury would—with a
3 ‘commonsense understanding of the instructions in the light of all that has taken place at the
4 trial.’” Id., at 368 (quoting Boyde, 494 U.S. at 381). Further, a single instruction “may not be
5 judged in artificial isolation,” but must be considered in light of the instructions as a whole and
6 the entire trial record.” Estelle v. McGuire, 502 U.S. 62, 72 (1991).
7

The failure to identify whether factors are aggravating or mitigating is plainly not

8 contrary to or an unreasonable application of Supreme Court authority. In Pulley v. Harris, the
9 Supreme Court reviewed California’s sentencing system, including the manner in which the jury
10 considered relevant factors in deciding the penalty. Pulley, 465 U.S. at 51. The Supreme Court
11 noted that the 1977 law (like the 1978 law applicable in this case) did not identify or separate the
12 aggravating or mitigating factors. Id. at 53 n.14. The Court found California’s death penalty law
13 to be constitutional. Id. at 51 (“Assuming that there could be a capital sentencing system so
14 lacking in other checks on arbitrariness that it would not pass constitutional muster without
15 comparative proportionality review, the 1977 California statute is not of that sort.”).
16

In Tuilaepa v. California, the Supreme Court again considered California’s death penalty

17 sentencing scheme. The Supreme Court rejected the argument that California’s “single list of
18 factors” was unconstitutional. The Court stated:
19
20
21
22
23
24
25
26
27
28

This argument, too, is foreclosed by our cases. A capital sentencer need not be
instructed how to weigh any particular fact in the capital sentencing decision. In
California v. Ramos, for example, we upheld an instruction informing the jury
that the Governor had the power to commute life sentences and stated that “the
fact that the jury is given no specific guidance on how the commutation factor is
to figure into its determination presents no constitutional problem.” 463 U.S., at
1008–1009, n. 22, 103 S. Ct., at 3457–3458, n. 22. Likewise, in Proffitt v. Florida,
we upheld the Florida capital sentencing scheme even though “the various factors
to be considered by the sentencing authorities [did] not have numerical weights
assigned to them.” 428 U.S., at 258, 96 S. Ct., at 2969. In Gregg, moreover, we
“approved Georgia's capital sentencing statute even though it clearly did not
channel the jury's discretion by enunciating specific standards to guide the jury's
consideration of aggravating and mitigating circumstances.” Zant, 462 U.S., at
875, 103 S. Ct., at 2742. We also rejected an objection “to the wide scope of
evidence and argument” allowed at sentencing hearings. 428 U.S., at 203–204, 96
S. Ct., at 2939. In sum, “discretion to evaluate and weigh the circumstances
relevant to the particular defendant and the crime he committed” is not
impermissible in the capital sentencing process. McCleskey v. Kemp, 481 U.S.
176

1
2
3
4
5
6
7
8

279, 315, n. 37, 107 S. Ct. 1756, 1779, n. 37, 95 L.Ed.2d 262 (1987). “Once the
jury finds that the defendant falls within the legislatively defined category of
persons eligible for the death penalty ... the jury then is free to consider a myriad
of factors to determine whether death is the appropriate punishment.” Ramos,
supra, 463 U.S., at 1008, 103 S. Ct., at 3457. Indeed, the sentencer may be given
“unbridled discretion in determining whether the death penalty should be imposed
after it has found that the defendant is a member of the class made eligible for that
penalty.” Zant, supra, 4[62] U.S., at 875, 103 S. Ct., at 2742; see also Barclay v.
Florida, 463 U.S. 939, 948–951, 103 S. Ct. 3418, 3424–3425, 77 L.Ed.2d 1134
(1983) (plurality opinion). In contravention of those cases, petitioners' argument
would force the States to adopt a kind of mandatory sentencing scheme requiring
a jury to sentence a defendant to death if it found, for example, a certain kind or
number of facts, or found more statutory aggravating factors than statutory
mitigating factors. The States are not required to conduct the capital sentencing
process in that fashion. See Gregg, supra, 428 U.S., at 199–200, n. 50, 96 S. Ct.,
at 2937–2938, n. 50.

9 Tuilaepa, 512 U.S. at 975. The Court finds that, based on the state record, the jury was
10 adequately instructed that it could consider the circumstances of the convictions in the present
11 proceeding including any special circumstance found to be true and any other mitigating
12 circumstances under § 190.3, factor (k), encompassing the concept of residual or lingering doubt
13 about Petitioner’s guilt.
14

There is no persuasive argument that the instruction given in this case in any way

15 foreclosed the jury from considering any relevant mitigating evidence. As noted by Respondent,
16 the Supreme Court has examined the language in California’s jury instruction on mitigation
17 multiple times, and upheld it against constitutional challenges every time.

See Ayers v.

18 Belmontes, 549 U.S. 7 (2006); Brown v. Payton, 544 U.S. 133, 141, 142 (2005); Boyde, 494
19 U.S. 370. Thus, the state court rejection of the claim was reasonable. Even if constitutional trial
20 error did occur, Petitioner is not entitled to relief because any such error did not have a
21 “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.
22 at 638.
23

The trial court’s use of the standard penalty phase instruction, California Criminal Jury

24 Instruction, (CALJIC), No. 8.84.1 (1986 rev.), regarding California Penal Code § 190.3 factor
25 (k), is adequate to permit jurors to consider relevant mitigating evidence. Boyde, 494 U.S. 370
26 at 381-382; Lockett, 438 U.S. at 604. The Eighth Amendment does not require that a jury be
27 instructed on particular statutory mitigating factors. Buchanan v. Angelone, 522 U.S. 269, 27528
177

1 77 (1998).
2

Petitioner then failed to established that defense counsel’s performance at the penalty

3 phase fell below an objective standard of reasonableness and that, but for counsel's
4 unprofessional errors, the result of the proceeding would have been different. Strickland, 466
5 U.S., at 687-694.
6

Respondent contends this subclaim is not cognizable because it creates and retroactively

7 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
8 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
9 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
10

The Court finds the state court rejection of the subclaim was not contrary to, or an

11 unreasonable application of, clearly established federal law, or an unreasonable determination of
12 the facts in light of the evidence presented in the state court proceeding, viewed most favoring
13 the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
14

This subclaim is denied.

15

ii.

16

Petitioner next alleges that the trial court’s use of CALJIC No. 8.84.1 (1986 rev.), which

California Penal Code § 190.3 Sentencing Factors

17 includes (Cal. Pen. Code § 190.3) sentencing factors “a” (consideration of current offense), “b”
18 (consideration of violent criminal activity), and “c” (consideration of prior felony conviction),
19 erroneously allowed the jury to inflate the aggravating weight of Petitioner’s guilt phase crimes.
20 Petitioner contends the jury improperly applied sentencing factors regarding presence of “violent
21 criminal activity” and “prior felony convictions” to the charged offenses and to Petitioner’s 1982
22 assaults on store owner Hassan Ammarie and friend Arturo Pena.
23

The state supreme court reviewed this subclaim on direct appeal and rejected it, providing

24 that:
25
26
27
28

[California Penal Code] Section 190.3 requires the jury to consider the
circumstances of the offense (§ 190.3, factor (a)), the presence of violent criminal
activity, (id., factor (b)), and prior felony convictions (id., factor (c)). The jury
was instructed in the statutory language. [Citation] Defendant now claims the
court erred by failing to clarify the differences between the above factors, thus
178

1
2
3
4
5
6
7
8
9
10

allowing the jury to give multiple consideration to the aggravating evidence under
all these factors. He also asserts that the instructions erroneously permitted the
jury to consider defendant's prior assaults under both factors (b) and (c), and
improperly inflated the weight the jury should have given to either prior crime.
We have noted that section 190.3, factor (b), concerns crimes other than those for
which defendant is being prosecuted [Citation], and we have directed that courts
should give clarifying instructions “to avoid any confusion” that may be caused
by the above factors. [Citation.] But we have consistently found that the absence
of clarifying instructions is harmless [Citation], and that the standard instructions
do not “inherently encourage 'double-counting' under section 190.3.” [Citation]
Therefore, “even if one or more jurors mistakenly consider a particular criminal
incident under the wrong factor, there is little risk that a reasonable jury will give
a single incident duplicative consideration.” [Citation] Moreover, both the
prosecutor and defense counsel separately explained the proper use of the
evidence under the separate factors. Thus, any potential confusion the jury may
have faced in light of the instructions was adequately addressed by both counsel's
arguments. Accordingly, given the arguments and the absence of any improperly
admitted evidence, we find that the court's failure to clarify the scope of each
factor did not affect the outcome of the trial.

11 Sanchez, 12 Cal.4th at 79.
12

The legal standard for review of penalty phase instructions is also set forth in the

13 subclaim above, to wit, “whether there is a reasonable likelihood that the jury has applied the
14 challenged instruction in a way that prevents the consideration of constitutionally relevant
15 evidence.” Boyde, 494 U.S. at 380.
16

Petitioner’s allegations lack merit. It is plainly not contrary to Supreme Court precedent

17 to instruct the jury with all sentencing factors. The Supreme Court stated in Gregg v. Georgia:
18
19
20
21
22

The petitioner objects, finally, to the wide scope of evidence and argument
allowed at [penalty] hearings. We think that the Georgia court wisely has chosen
not to impose unnecessary restrictions on the evidence that can be offered at such
a hearing and to approve open and far-ranging argument. So long as the evidence
introduced and the arguments made at the [penalty] hearing do not prejudice a
defendant, it is preferable not to impose restrictions. We think it desirable for the
jury to have as much information before it as possible when it makes the
sentencing decision.

23 Gregg, 428 U.S. at 203-204 (citations omitted).
24

The Court finds there is no reasonable likelihood the jury misinterpreted the instruction

25 by inflating aggravation from the guilt phase crimes. It is well established that a sentencing
26 court need not identify which factors are aggravating and which are mitigating. Pulley, 465 U.S.
27 at 51 and 53 n.14; Tuilaepa, 512 U.S. at 979-80.
28
179

1

The state court could reasonably have found that the prosecution guilt phase argument

2 was relevant only under the first sentencing factor. In fact, defense counsel Frank argued as
3 much to the jury, that the guilt phase crimes should be considered only with regard to the first
4 sentencing factor, (RT 3066-3067), ameliorating any juror confusion as to the current offense
5 factor “a”.
6

The Ninth Circuit has found the second factor, which refers to crimes for which the

7 defendant has not been convicted, not to be unconstitutionally vague, Bonin v. Calderon, 59 F.3d
8 815, 848 (9th Cir. 1995), and that the third factor on its face aggravates for prior felony
9 convictions precluding any reasonable probability the jury aggravated for the charged offenses.
10 Id. The penalty phase evidence was relevant only to the second and third factors. The jury then
11 could properly have considered the 1982 assaults under both the second and third factors, and
12 that the prosecution’s argument in this regard was not improper. People v. Melton, 44 Cal.3d
13 713, 764 (1988) (no constitutional obstacle to separate consideration of properly distinct aspects
14 of the penalty determination, even when those aspects happen to coexist in a single incident).
15

Additionally, any error was harmless given the substantial weight of evidence in

16 aggravation. Clemons v. Mississippi, 494 U.S. 738, 753 (1990) (“what is important . . . is an
17 individualized determination on the basis of the character of the individual and the circumstances
18 of the crime.”).
19

Respondent contends this subclaim is not cognizable because it creates and retroactively

20 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
21 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
22 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
23

The Court finds that the state court rejection of the subclaim was not contrary to, or an

24 unreasonable application of, clearly established federal law, or an unreasonable determination of
25 the facts in light of the evidence presented in the state court proceeding, viewed most favoring
26 the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
27

This subclaim is denied.

28
180

1

iii.

2

Petitioner next alleges that the trial court improperly rejected defense instructions

Instructing Which Sentencing Factors were Aggravating/Mitigating

3 addressing which sentencing factors were aggravating and which were mitigating, (CT 1078-83),
4 allowing the jury to improperly consider the absence of a mitigating factor as itself an
5 aggravating factor.
6

The state supreme court considered and rejected this subclaim on direct appeal:

7
8
9
10
11
12

Defendant claims the prosecutor improperly implied that the absence of mitigating
evidence under [California Penal Code] section 190.3, factors (e) and (f) should
be considered as aggravating evidence. [Citation] We find no error. The
prosecutor simply told the jury that there “was no evidence” of factor (e), and also
argued that she could not recall hearing any factor (f) evidence, but that if the jury
heard it the evidence could be considered in mitigation. Moreover, the jury was
specifically instructed, pursuant to defendant's request, that the “absence of any
particular factor in mitigation is not to be treated as any factor in aggravation.” It
is presumed that the jury followed the court's instruction. [Citation]

13 Sanchez, 12 Cal.4th at 77-83.
14

The legal standard for review of penalty phase instructions is also set forth in the

15 subclaim above, to wit, “whether there is a reasonable likelihood that the jury has applied the
16 challenged instruction in a way that prevents the consideration of constitutionally relevant
17 evidence.” Boyde, 494 U.S. at 380.
18

The Court finds it clearly established that a sentencing court need not identify which

19 factors are aggravating and which are mitigating. Pulley, 465 U.S. at 51 and 53 n.14; Tuilaepa,
20 512 U.S. at 979-80. The failure to identify whether factors are aggravating or mitigating is not
21 contrary to or an unreasonable application of Supreme Court authority. Pulley, 465 U.S. at 53
22 n.14; Tuilaepa, 512 U.S. at 975-80. This is fatal to Petitioner’s subclaim, since he cannot show
23 that the state court rejection of his claim was contrary to or an unreasonable application of
24 Supreme Court precedent.
25

The Ninth Circuit arrived at the same conclusion in Williams v. Calderon: “The death

26 penalty statute's failure to label aggravating and mitigating factors is constitutional.” Williams v.
27 Calderon, 52 F.3d 1465, 1484-1485 (9th Cir. 1995). The Ninth Circuit has found California’s
28
181

1 death penalty statute does not violate due process by failure to label factors as aggravating or
2 mitigating. See Williams, 52 F.3d at 1148-1485.
3

Respondent contends this subclaim is not cognizable because it creates and retroactively

4 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
5 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
6 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
7

The Court finds that the state court rejection of the subclaim was not contrary to, or an

8 unreasonable application of, clearly established federal law, or an unreasonable determination of
9 the facts in light of the evidence presented in the state court proceeding, viewed most favoring
10 the prosecution. Jackson, 443 U.S. at 319; see 28 U.S.C. § 2254(d).
11

This subclaim is denied.

12

iv.

13

Petitioner alleges in this subclaim that the trial court erred in rejecting instructions

Deleting Inapplicable Mitigating Factors

14 deleting mitigating factors (Cal. Pen. Code § 190.3 (e) and (f)) which were not claimed by
15 Petitioner and thus not relevant this case, i.e., factors that “victims participated in, or consented
16 to their own deaths” or that Petitioner’s actions were “morally justified.” (CT 1078-1079.)
17 Petitioner alleges that the prosecution argued the absence of evidence supporting these claims
18 and thereby implied an illusory aggravating factor.
19

The state supreme court considered this claim on direct appeal and rejected it, noting that:

20

Defendant contends the court erred when it rejected his request to delete
inapplicable mitigating factors (e) (whether victim participated in crime) and (f)
(moral justification for crime) of [California Penal Code] section 190.3 from its
standard statutory instructions, and injected irrelevant considerations into the
jury's penalty deliberations, depriving him of his right to a fair and reliable penalty
determination under the Eighth and Fourteenth Amendments.

21
22
23
24
25
26

The jury, however, was properly instructed to consider all the factors “if
applicable” and later told to “take into account and be guided by” the applicable
factors. [Citation] As we have in previous cases, we assume the jury properly
followed the instruction and concluded that mitigating factors not supported by
evidence were simply not “applicable.” [Citation]

27 Sanchez, 12 Cal.4th at 79.
28
182

1

The Court finds this subclaim to be unavailing. As noted in discussion of the subclaims

2 above, the jury was instructed with CALJIC No. 8.84.1. That instruction allowed the jury to
3 “consider” each factor “if applicable”, (CT 994-995; RT 3087-3089), precluding any reasonable
4 probability Petitioner’s rights were violated by a failure to delete sentencing factors (Cal. Pen.
5 Code § 190.3 (e) and (f)).
6

The legal standard for review of penalty phase instructions is “whether there is a

7 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents
8 the consideration of constitutionally relevant evidence.”

Boyde, 494 U.S. at 380.

In this

9 instance, it was not contrary to Supreme Court precedent to instruct the jury with all sentencing
10 factors where the instructions expressly indicated that the jury was to consider each factor only if
11 applicable. The Supreme Court stated in Gregg v. Georgia:
12
13
14
15
16

The petitioner objects, finally, to the wide scope of evidence and argument
allowed at [penalty] hearings. We think that the Georgia court wisely has chosen
not to impose unnecessary restrictions on the evidence that can be offered at such
a hearing and to approve open and far-ranging argument. So long as the evidence
introduced and the arguments made at the [penalty] hearing do not prejudice a
defendant, it is preferable not to impose restrictions. We think it desirable for the
jury to have as much information before it as possible when it makes the
sentencing decision.

17 Gregg, 428 U.S. at 203-04. In Williams v. Calderon, the Ninth Circuit stated:
18
19
20
21
22
23
24

Williams argues that it was error to read to the jury the entire list of factors the
state considered relevant to the sentencing decision, even when some did not
apply. To the contrary, the jury instructions expressly indicated that the jury was
to consider each factor only “if applicable.” Moreover, “[i]t seems clear ... that the
problem [of jury inexperience] will be alleviated if the jury is given guidance
regarding the factors about the crime and the defendant that the State,
representing organized society, deems particularly relevant to the sentencing
decision.” Gregg v. Georgia, 428 U.S. 153, 192, 96 S. Ct. 2909, 2934, 49 L.Ed.2d
859 (1976) (plurality opinion). The reading of the complete list gave the jury
more guidance, not less. We find nothing in the Constitution prohibiting the very
practice Gregg encouraged.

25 Williams, 52 F.3d 1465 at 1481.
26

Consistent with the foregoing, this Court finds that the state court could reasonably have

27 found it unlikely that the jury applied the challenged instruction in a way that prevented
28
183

1 consideration of constitutionally relevant evidence. There was no requirement that a trial court
2 redact the instructions to include only those factors deemed applicable.

Moreover, the

3 instruction itself advises the jury to consider the factors “if applicable.” In Bonin v. Calderon,
4 the Ninth Circuit again rejected the argument posited by Petitioner. Bonin, 59 F.3d at 847-48.
5 The Bonin court noted that “the cautionary words ‘if applicable’ warned the jury that not all of
6 the factors would be relevant and that the absence of a factor made it inapplicable rather than an
7 aggravating factor.” Id.
8

Respondent contends this subclaim is not cognizable because it creates and retroactively

9 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
10 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
11 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
12

The Court finds that that the state court rejection of the subclaim was not contrary to, or

13 an unreasonable application of, clearly established federal law, or an or an unreasonable
14 determination of the facts in light of the evidence presented in the state court proceeding, viewed
15 most favoring the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
16

This subclaim is denied.

17

v.

18

Petitioner next alleges that the trial court erred by failing to instruct the jury it could not

Limiting Aggravation

19 consider aggravating factors not included in the instructions. He claims this potentially allowed
20 unrestricted aggravation. (RT 3087-3089, 3095.)
21

The state supreme court considered and rejected this subclaim on direct appeal, finding

22 that there was no violation of state law:
23
24
25

Defendant also asserts the trial court erred by failing to instruct the jury not to
consider non-statutory aggravating evidence in determining penalty. We have
repeatedly rejected this contention, and defendant has not persuaded us to
reconsider our conclusion. [Citation] Nor was the trial court required to label
various factors as exclusively aggravating or mitigating. [Citation]

26
27 Sanchez, 12 Cal.4th at 79-80.
28
184

1

The legal standard for review of penalty phase instructions is as set forth in the subclaim

2 above, to wit, “whether there is a reasonable likelihood that the jury has applied the challenged
3 instruction in a way that prevents the consideration of constitutionally relevant evidence.”
4 Boyde, 494 U.S. at 380.
5

This Court agrees with the state court’s rejection of the subclaim. At bottom, “what is

6 important at the selection stage is an individualized determination on the basis of the character of
7 the individual and the circumstances of the crime.” Zant, 462 U.S. at 879.

There is no

8 constitutional prohibition against non-statutory aggravating factors. Harris v. Pulley, 692 F.2d
9 1189, 1193-94 (1982), overruled on other grounds, 465 U.S. 37 (1984); Zant, 462 U.S. at 878-79.
10 As noted, California’s death penalty scheme allows for a sufficiently individualized sentence
11 determination. Tuilaepa, 512 U.S. at 975. The trial court’s failure to instruct the jury that it
12 could not consider non-statutory aggravating factors is plainly not contrary to or an unreasonable
13 application of Supreme Court authority. Pulley, 465 U.S. at 51, 53 n.14; Tuilaepa, 512 U.S. at
14 975-80.
15

The California Supreme Court found the specific instructions given allowed a fully

16 individualized evaluation of aggravating and mitigating evidence. Sanchez, 12 Cal.4th at 79-80,
17 citing People v. Hawthorne, 4 Cal.4th 43 at 74-74. Petitioner’s citation to People v. Boyd, 38
18 Cal.3d 762 (1985) is not authority otherwise. Nor is it “the province of a federal habeas court to
19 re-examine state court determinations on state law questions.” Estelle, 502 U.S. at 67-68.
20 Furthermore, as the Supreme Court stated in Gregg v. Georgia:
21
22
23
24
25

The petitioner objects, finally, to the wide scope of evidence and argument
allowed at [penalty] hearings. We think that the Georgia court wisely has chosen
not to impose unnecessary restrictions on the evidence that can be offered at such
a hearing and to approve open and far-ranging argument. So long as the evidence
introduced and the arguments made at the [penalty] hearing do not prejudice a
defendant, it is preferable not to impose restrictions. We think it desirable for the
jury to have as much information before it as possible when it makes the
sentencing decision.

26
27 Gregg, 428 U.S. at 203-04.
28
185

1

Respondent contends this subclaim is not cognizable because it creates and retroactively

2 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
3 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
4 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
5

The Court finds that the state court rejection of the subclaim was not contrary to, or an

6 unreasonable application of, clearly established federal law, or an unreasonable determination of
7 the facts in light of the evidence presented in the state court proceeding, viewed most favoring
8 the prosecution. Jackson, 443 U.S. at 319; see 28 U.S.C. § 2254(d).
9

This subclaim is denied.

10

vi.

11

Petitioner alleges that the trial court erred in denying his requested special instruction that

Limiting Modifiers

12 sought to delete the adjective “extreme” from the reference in [mitigation factor] (d) to being
13 under the influence of mental or emotional disturbance, and the adjective “substantial” from the
14 reference in [mitigation factor] (g) to being under the domination of another person. He claims
15 this prevented presentation of his mitigation evidence. (CT 1078-1079.)
16

The state supreme court considered and rejected this claim on direct appeal, finding that:

17

Defendant contends the trial court violated the Eighth Amendment by refusing his
requested deletion of the adjectives “extreme” and “substantial” in instructions
given in the language of section 190.3, factors (d) (whether defendant was under
the influence of extreme mental or emotional disturbance at time of offense), and
(g) (whether defendant acted under extreme duress or substantial domination of
another person). We have rejected this argument in numerous cases, and
defendant has failed to persuade us that we should reconsider these decisions.
(See Turner, supra, 8 Cal.4th at pp. 208-209, and cases cited [catchall provision of
section 190.3, factor (k) referring to “any other circumstance which extenuates the
gravity of the crime” allows consideration of non-extreme mental or emotional
conditions when read in conjunction with instructions on factors (d) and (g)].)

18
19
20
21
22
23

24 Sanchez 12 Cal. 4th at 80.
25
26
27

The jury, however, was properly instructed to consider all the factors “if
applicable” and later told to “take into account and be guided by” the applicable
factors. [Citation] As we have in previous cases, we assume the jury properly
followed the instruction and concluded that mitigating factors not supported by
evidence were simply not “applicable.” [Citation]

28
186

1 Sanchez, 12 Cal.4th at 79.
2

The Constitution requires that the jury must “not be precluded from considering, as a

3 mitigating factor, any aspect of a defendant's character or record and any of the circumstances of
4 the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438
5 U.S. at 604. The test is “whether there is a reasonable likelihood that the jury has applied the
6 challenged instruction in a way that prevents the consideration of constitutionally relevant
7 evidence.” Boyde, 494 U.S. at 380. Further, a single instruction “may not be judged in artificial
8 isolation,” but must be considered in light of the instructions as a whole and the entire trial
9 record. Estelle, 502 U.S. at 72.
10

Here, the Court finds that the trial court’s use of CALJIC No. 8.84.1 (1986 rev.),

11 regarding California Penal Code § 190.3 factor (k), was adequate to permit jurors to consider
12 relevant mitigating evidence. Boyde, 494 U.S. at 381-82 (1990). The state supreme court
13 rejected this subclaim, finding sufficient the trial court’s instruction that (Cal. Pen. Code §
14 190.3(k)) includes:
15
16
17

[A]ny other circumstance which extenuates the gravity of the crime, even though
it is not a legal excuse for the crime, and any sympathetic or other aspect of the
defendant’s character or record that the defendant offers as a basis for a sentence
less than death, whether or not related to the offense for which he is on trial.

18
19

The Ninth Circuit has rejected Petitioner’s argument where, as here, the jury was advised

20 it could consider any other mitigating matter. See Hendricks v. Vasquez, 974 F.2d 1099, 1109
21 (9th Cir. 1992). Moreover, as noted by the California Supreme Court, factors (d) and (g) cannot
22 be read in isolation. It is clear that factor (k) on its face allows the jury to consider non-extreme
23 and non-substantial mental or emotional conditions when read in conjunction with instructions
24 on factors (d) and (g). See Sanchez, 12 Cal. 4th at 80.
25

The Supreme Court has stated that factor (k) directed the jury to consider “any other

26 circumstance that might excuse the crime. . . .” Boyde, 494 U.S. at 382. Nothing suggests the
27 instruction in issue here precluded the jury from considering the mitigating evidence proffered
28
187

1 by Petitioner. See e.g., Id. at 378. The Supreme Court has found that “[t]he factor (k) instruction
2 is consistent with the constitutional right to present mitigating evidence in capital sentencing
3 proceedings.” Ayers, 549 U.S. at 24.
4

In addition, the Supreme Court has reviewed this instruction on several occasions. It has

5 rejected claims that the instruction restricts the jury’s consideration of mitigating evidence in
6 every instance. See, e.g., Ayers, 549 U.S. at 7; Brown, 544 U.S. at 133; Boyde, 494 U.S. 370.
7

Respondent contends this subclaim is not cognizable because it creates and retroactively

8 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
9 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
10 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
11

The Court finds that the state court rejection of the subclaim was not contrary to, or an

12 unreasonable application of, clearly established federal law, or an unreasonable determination of
13 the facts in light of the evidence presented in the state court proceeding, viewed most favoring
14 the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
15

This subclaim is denied.

16

vii.

17

In this subclaim, Petitioner alleges that the trial court erred in denying his requested

“Pinpoint” Mitigation Instructions

18 special “pinpoint” instructions relating to the defense theory of mitigating childhood and family
19 facts and circumstances. He argues that without the pinpoint instruction there is a reasonable
20 likelihood the jury did not understand the defense and could consider all factors in the
21 instructions as mitigation.
22

The state supreme court considered and rejected this subclaim on direct appeal, stating

23 that:
24
25
26
27
28

Defendant complains that the court erred in rejecting his instructions discussing
his childhood and background, that were required to augment the section 190.3,
factor (k) instruction. We disagree. The jury was fully aware that it could consider
defendant's childhood in mitigation under factor (k); it was further instructed that
this factor allowed the jury to consider “any sympathetic or other aspect of the
defendant's character or record that the defendant offers as a basis for a sentence
less than death.” In addition, the jury was instructed that it was “free to assign
whatever moral or sympathetic value you deem appropriate to each and all of the
188

1
2
3
4
5

various factors” and that [t]o return a judgment of death, each of you must be
persuaded that the aggravating evidence and/or circumstances is so substantial in
comparison with the mitigating circumstances that it warrants death instead of life
without parole.” These instructions, combined with the arguments of Ryals
(informing the jury it could consider as mitigating defendant's background and
character) and Frank (telling jury that factor (k) includes any evidence of
defendant's character or background that he offers), lead us to conclude that there
is no possibility the jury misunderstood its sentencing obligation to consider
defendant's background and character in determining the appropriate penalty.
[Citation]

6
7 Sanchez, 12 Cal.4th at 82.
8

As recited above, in reviewing penalty phase instructions, the test is “whether there is a

9 reasonable likelihood that the jury has applied the challenged instruction in a way that prevents
10 the consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380. Further, a
11 single instruction “may not be judged in artificial isolation,” but must be considered in light of
12 the instructions as a whole and the entire trial record. Estelle, 502 U.S. at 72.
13

Here, the state court could reasonably have found that the jury was not precluded from

14 considering mitigating evidence including childhood and family evidence.

The trial court

15 rejected Petitioner’s proffered special instruction, using instead CALJIC No. 8.84.1 (1986 rev.),
16 which advised the jury to consider the circumstances of the present conviction (pursuant to Cal.
17 Pen. Code § 190.3(a)) and any other extenuating circumstance and aspect of the defendant’s
18 character or record (pursuant to Cal. Pen. Code § 190.3(k)). (CT 994-995; RT 3087-3089.)
19 Additionally, the prosecution argued to the jury that it was not precluded from considering
20 mitigating evidence. (RT 3043-3044.) Defense counsel Frank did the same. (RT 3053-3060).
21

At the time Petitioner’s conviction became final on October 7, 1996, it was established

22 that use of CALJIC No. 8.84.1 was adequate to permit jurors to consider relevant mitigating
23 evidence. Boyde, 494 U.S. at 381-82 (1990).

The Ninth Circuit has rejected Petitioner’s

24 argument where, as here, the jury was advised it could consider any other mitigating matter. See
25 Hendricks, 974 F.2d at 1109. The Supreme Court has never required a sentencing court to
26 instruct a jury on how to weigh and balance factors in aggravation and mitigation. As discussed
27 in the subclaims above, in Tuilaepa v. California, the Supreme Court stated, “[a] capital
28
189

1 sentencer need not be instructed how to weigh any particular fact in the capital sentencing
2 decision.” Tuilaepa, 512 U.S. at 979. Similarly, in Kansas v. Marsh, the Supreme Court stated:
3
4
5
6

In aggregate, our precedents confer upon defendants the right to present
sentencers with information relevant to the sentencing decision and oblige
sentencers to consider that information in determining the appropriate sentence.
The thrust of our mitigation jurisprudence ends here. “[W]e have never held that
a specific method for balancing mitigating and aggravating factors in a capital
sentencing proceeding is constitutionally required.”

7
8 Marsh, 548 U.S. at 175 (quoting Franklin, 487 U.S. at 179) (citing Zant, 462 U.S. at 875–876,
9 n.13). Petitioner has not made any sufficient evidentiary showing otherwise.
10

Respondent contends this subclaim is not cognizable because it creates and retroactively

11 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
12 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
13 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
14

For the reasons stated, the Court is persuaded the state court rejection of the subclaim

15 was not contrary to, or an unreasonable application of, clearly established federal law, or an or
16 an unreasonable determination of the facts in light of the evidence presented in the state court
17 proceeding, viewed most favoring the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. §
18 2254(d).
19

This subclaim is denied.

20

viii.

21

Petitioner alleges in the next subclaim that the trial court erred in denying his requested

Aggravation “Beyond a Reasonable Doubt” Instruction

22 special instructions requiring the jury to find aggravation outweighed mitigation beyond a
23 reasonable doubt and that a death sentence was appropriate beyond a reasonable doubt. The trial
24 court instead gave the statutory instruction, CALJIC No. 8.84.2 (1986 rev.), renumbered CALJIC
25 No. 8.88 (1989 rev.).
26

The state supreme court considered and rejected this claim on appeal, stating that:

27
28

Defendant contends the trial court violated the federal Constitution by rejecting
190

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

his instruction that would have required the jury unanimously to find the existence
of an aggravating factor before considering it and to find beyond a reasonable
doubt that the aggravating factors outweighed the mitigating factors before
choosing the penalty of death. Instead, the court instructed the jury pursuant to
former CALJIC No. 8.84.2, which informed the jury it must “be guided by the
applicable factors of aggravating and mitigating circumstances upon which [it]
had been instructed.” The instruction also emphasized to the jury that the penalty
determination did not involve a mere mechanical weighing process, but required
an individual assessment of the aggravating and mitigating circumstances (and
assignment of “whatever moral or sympathetic value” it deemed appropriate) in
determining the sentence. Defendant claims CALJIC No. 8.84.2 failed to inform
the jury it must find that the aggravating factors outweighed the mitigating factors
and that, if it found mitigating factors outweighed aggravating factors, it must
impose a sentence of life without parole. We have previously rejected these
contentions, and defendant has failed to persuade us to reconsider our decisions.
[Citation]
As we have previously recognized, nothing in the federal Constitution requires the
jury unanimously to find the existence of an aggravating factor, or to find beyond
a reasonable doubt that the People proved each aggravating factor, that the
aggravating circumstances outweighed the mitigating ones, or that death is
appropriate. [Citation] Unlike the determination of guilt, “the sentencing function
is inherently moral and normative, not factual” [Citation] and thus “not
susceptible to a burden-of-proof quantification.” [Citation] . . . Former CALJIC
No. 8.84.2 adequately conveyed to the jury the seriousness of its obligation in
determining the appropriate penalty, and we find no error in giving the
instruction. [Citation]

17 Sanchez, 12 Cal.4th at 80-81.
18

Petitioner could correctly argue that “the Due Process Clause protects the accused against

19 conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the
20 crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). In California, for a
21 defendant to be eligible for the death penalty, the jury must, beyond a reasonable doubt, find him
22 guilty of murder in the first degree, and must find true one of the special circumstances set forth
23 in Cal. Penal Code § 190.2. Tuilaepa, 512 U.S. at 975.
24

However, once a defendant is convicted, “the prosecution has no burden of proof that

25 death is the appropriate penalty, or that one or more aggravating factors or crimes exist, in order
26 to obtain a judgment of death.” People v. Anderson, 25 Cal. 4th 543, 589 (2001). Instead, the
27 clearly established law at the time Petitioner’s conviction became final vested the jury with
28
191

1 “unbridled discretion in determining whether the death penalty should be imposed after it has
2 found that the defendant is a member of the class made eligible for that penalty.” Tuilaepa, 512
3 U.S. at 979-80.
4

There is no Supreme Court authority which constitutionally requires that a jury be

5 instructed on a burden of proof in the sentence selection phase in a capital case. Further, “[t]he
6 United States Supreme Court has never stated that a beyond-a-reasonable-doubt standard is
7 required when determining whether a death penalty should be imposed.” Harris, 692 F.2d at
8 1195. Nor is there any Supreme Court authority which would require a burden of proof or
9 persuasion be assigned to any of the jury’s penalty phase determinations. On the contrary, the
10 Supreme Court has held that no “specific method for balancing mitigating and aggravating
11 factors in a capital sentencing proceeding is constitutionally required.” Marsh, 548 U.S. at 175.
12 California’s death penalty sentencing scheme has been consistently upheld as constitutional by
13 the Supreme Court. Tuilaepa, 512 U.S. at 975-80; Pulley, 465 U.S. at 53.
14

The Court finds the statutory instruction, CALJIC 8.84.2, did appropriately advise the

15 jury to consider the applicable factors of aggravating and mitigating circumstances and that to
16 find for death each juror must be persuaded that the aggravating evidence and/or circumstances
17 is so substantial in comparison with the mitigating circumstances that it warrants death instead of
18 life without parole. (CT 1018; RT 3095-3096.) Due process requires no more. Harris, 692 F.2d
19 at 1194.

California is not required to adopt specific standards for instructing the jury on

20 consideration of aggravating and mitigating circumstances. Zant, 462 U.S. at 890.
21

The state court then could reasonably find the requirement under California’s death

22 penalty statute, that the jury weigh aggravating and mitigating factors before imposing the death
23 penalty, adequately guarantees the jury’s discretion will be guided and its considerations
24 deliberate.
25

Respondent contends this subclaim is not cognizable because it creates and retroactively

26 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
27 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
28
192

1 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
2

The Court finds that the state court rejection of the subclaim was not contrary to, or an

3 unreasonable application of, clearly established federal law, or an unreasonable determination of
4 the facts in light of the evidence presented in the state court proceeding, viewed most favoring
5 the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
6

This subclaim is denied.

7

ix.

8

Petitioner alleges in his next subclaim that the trial court erred in not instructing the jury

Written Aggravation Findings

9 to make written findings as to aggravating and mitigating factors, denying him due process and
10 meaningful appellate review under the Eighth Amendment.
11

The state supreme court reviewed and rejected this claim on direct appeal, noting that:

12
13
14
15

Defendant contends the trial court erred by failing to require the jury to render
written findings on the aggravating factors it selected. We have repeatedly held
that such findings are not required, and accordingly, find no error. [Citation]
Federal law is in accord. See Harris, 692 F.2d at 1195, overruled on other grounds
465 U.S. 37 (1984).

16 Sanchez, 12 Cal.4th at 82.
17

The state court decision is not contrary to Supreme Court precedent. See Harris, 692

18 F.2d at 1195–96. Moreover, the California procedure provides a sufficient record for appellate
19 review by requiring the judge to provide a written statement upholding or overturning the jury’s
20 verdict without requiring written findings by the jury on the aggravating circumstances. In
21 Proffitt v. Florida, the Supreme Court upheld the Florida death penalty statute which was
22 comparable to California’s procedure. 428 U.S. 242, 250-251 (1976). In the Florida statute, the
23 jury is required to make a penalty recommendation to the trial judge, unaccompanied by any
24 specific findings, and thereafter the judge determines the actual sentence and specifies in writing
25 the reasons in support of the sentence. Id. at 249-250. In interpreting the Florida law, the
26 Supreme Court emphasized, “Since . . . the trial judge must justify the imposition of a death
27 sentence with written findings, meaningful appellate review of each such sentence is made
28
193

1 possible . . . .” Id. at 251. In a similar way, the California procedure provides for meaningful
2 appellate review with respect to the disclosure of the reasons supporting a sentence of death.
3

The California procedure was approved by the Supreme Court in Pulley v. Harris, where

4 it was stated:
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

If the jury finds the defendant guilty of first degree murder and finds at least one
special circumstance, the trial proceeds to a second phase to determine the
appropriate penalty. Additional evidence may be offered and the jury is given a
list of relevant factors. § 190.3. “After having heard all the evidence, the trier of
fact shall consider, take into account and be guided by the aggravating and
mitigating circumstances referred to in this section, and shall determine whether
the penalty shall be death or life imprisonment without the possibility of parole.”
Ibid. If the jury returns a verdict of death, the defendant is deemed to move to
modify the verdict. § 190.4(e). The trial judge then reviews the evidence and, in
light of the statutory factors, makes an “independent determination as to whether
the weight of the evidence supports the jury's findings and verdicts.” Ibid. The
judge is required to state on the record the reasons for his findings. Ibid. If the
trial judge denies the motion for modification, there is an automatic appeal. §§
190.4(e), 1239(b). The statute does not require comparative proportionality
review or otherwise describe the nature of the appeal. [Footnote omitted.] It does
state that the trial judge's refusal to modify the sentence “shall be reviewed.” §
190.4(e). This would seem to include review of the evidence relied on by the
judge. As the California Supreme Court has said, “the statutory requirements that
the jury specify the special circumstances which permit imposition of the death
penalty, and that the trial judge specify his reasons for denying modification of
the death penalty, serve to assure thoughtful and effective appellate review,
focusing upon the circumstances present in each particular case.” People v.
Frierson, 25 Cal.3d 142, 179, 158 Cal. Rptr. 281, 302, 599 P.2d 587, 609 (1979).
...
The jury's “discretion is suitably directed and limited so as to minimize the risk of
wholly arbitrary and capricious action.” Gregg, 428 U.S., at 189, 96 S. Ct., at
2932. Its decision is reviewed by the trial judge and the State Supreme Court. On
its face, this system, without any requirement or practice of comparative
proportionality review, cannot be successfully challenged under Furman and our
subsequent cases.

22 Pulley, 465 U.S. at 51-53 (emphasis added).
23

Respondent contends this subclaim is not cognizable because it creates and retroactively

24 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
25 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
26 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
27

For the reasons stated, the Court finds that the state court rejection of the subclaim was

28
194

1 not contrary to, or an unreasonable application of, clearly established federal law, or an or an
2 unreasonable determination of the facts in light of the evidence presented in the state court
3 proceeding, viewed most favoring the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. §
4 2254(d).
5

This subclaim is denied.

6

x.

7

Petitioner next alleges that the California death penalty statute fails to require intra-case

Proportionality

8 and inter-case proportionality and to provide for meaningful proportionality review, denying him
9 protection from arbitrary imposition of the death penalty and denying him equal protection with
10 non-capital felons and preventing the jury from considering all mitigation factors.
11

The state supreme court considered and rejected this subclaim on appeal, finding that:

12
13
14
15

Defendant complains that the lack of intra-case and inter-case proportionality
review in this case renders the 1978 sentencing scheme under California's death
penalty law arbitrary under the Eighth Amendment and in violation of his equal
protection rights because such review is afforded to noncapital defendants. We
have rejected the argument in numerous cases. [Citation]

16 Sanchez, 12 Cal.4th 83.
17
18 67.

Generally, errors of state law are not cognizable on federal habeas. Estelle, 502 U.S. at
If a challenged instruction, viewed in the context of the overall charge, shows a denial of

19 due process which renders the trial unfair, habeas relief may lie. See Cupp, 414 U.S. at 147;
20 Henderson v. Kibbe, 431 U.S. 145, 154 (1976). A claim that instructional error violates a
21 defendant’s constitutional rights depends on the evidence and the overall instructions.
22 Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).
23

In this instance, the state court could reasonably find Petitioner’s intra-case and inter-case

24 proportionality subclaim to be foreclosed by the Supreme Court’s decision in Pulley, 465 U.S.
25 37. In Pulley, the high court reviewed California’s death penalty procedure, and in particular,
26 considered the fact that California did not require any sort of comparative proportionality review.
27 Id. The Supreme Court found that the Eighth Amendment did not require a “state appellate
28
195

1 court, before it affirms a death sentence, to compare the sentence in the case before it with the
2 penalties imposed in similar cases if requested to do so by the prisoner.” Id. at 43-44. Further,
3 the Supreme Court held that “[o]n its face, [California’s] system, without any requirement or
4 practice of comparative proportionality review, cannot be successfully challenged under Furman
5 [v. Georgia, 408 U.S. 238 (1972)] and our subsequent cases.” Id. at 53.
6

In order to satisfy constitutional requirements, a death penalty law must narrow the class

7 of death-eligible defendants, and provide for individualized penalty determination. McCleskey
8 v. Kemp, 481 U.S. 279, 308 (1987). California’s 1978 death penalty meets these requirements,
9 People v. Rodriguez, 42 Cal.3d 730, 777-779 (1986), and has been upheld as constitutional by
10 the United States Supreme Court. Ramos, 463 U.S. at 993-94. The federal court has rejected
11 proportionality review, Pulley, 465 U.S. at 53. So has the California Supreme Court. People v.
12 Cox, 53 Cal.3d 618, 692 (1991), disapproved on other grounds by People v. Doolin, 45 Cal.4th
13 390, 417 (2009).
14

Respondent contends this subclaim is not cognizable because it creates and retroactively

15 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
16 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
17 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
18

The Court finds that the state court rejection of the subclaim was not contrary to, or an

19 unreasonable application of, clearly established federal law, or an unreasonable determination of
20 the facts in light of the evidence presented in the state court proceeding, viewed most favoring
21 the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
22

This subclaim is denied.

23

xi.

24

For the reasons discussed in the subclaims above, the state court could reasonably have

Conclusions

25 found that Petitioner failed to establish state court rejection of claim 58 was contrary to, or an
26 unreasonable application of, clearly established federal law, or an or an unreasonable
27 determination of the facts in light of the evidence presented in the state court proceeding, viewed
28
196

1 most favoring the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
2

Claim 58, including all its subclaims, is denied.

3

r.

4

In his next claim, Petitioner alleges that the trial court, during the (Cal. Pen. Code §

Review of Claim 5911

5 190.4(e)) automatic motion to independently review the evidence, erred by failing to consider
6 mitigating evidence when imposing death.
7

The state supreme court considered and rejected this claim on direct appeal, stating that:

8
Defendant contends the trial court committed prejudicial error in denying his
automatic motion for modification of the death sentence (§ 190.4, subd. (e))
because it failed to consider mitigating evidence of defendant's dysfunctional
family and his kindness to his siblings (§ 190.3, factor (k)). We are not persuaded.

9
10
11

After reviewing section 190.3, factors (a)-(i), and concluding that several statutory
mitigating factors did not apply to defendant, (the court did note that defendant
may have been high on PCP during the murders pursuant to factor (h)), the court
asked: ”Are there other circumstances that mitigate against the aggravation of the
[defendant], I think not.“ Moreover, before denying the modification motion, the
court stated that it had considered defendant's motion to reduce penalty and the
People's response, both of which referred to defendant's mitigating evidence.
Thus, although the court did not specifically mention defendant's mitigating
evidence of his family life, the court's statement regarding section 190.3, factor
(k) evidence shows it considered all pertinent penalty phase evidence, including
testimony about defendant's family life and his behavior toward his siblings, but
merely found it unpersuasive. The record is clear that in ruling on the motion for
modification, the trial court independently assessed the weight of the evidence
under each factor, and stated its reasons for denying defendant's motion. [Citation]
We conclude on this record that all constitutional and statutory considerations
were observed in the court's ruling. [Citation]

12
13
14
15
16
17
18
19

20 Sanchez, 12 Cal.4th at 83.
At the time Petitioner’s conviction became final, Cal. Penal Code § 190.4(e) provided

21
22 that:

In every case in which the trier of fact has returned a verdict or finding imposing
the death penalty, the defendant shall be deemed to have made an application for
modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In
ruling on the application, the judge shall review the evidence, consider, take into
account, and be guided by the aggravating and mitigating circumstances referred
to in Section 190.3, and shall make a determination as to whether the jury's
findings and verdicts that the aggravating circumstances outweigh the mitigating
circumstances are contrary to law or the evidence presented. The judge shall state
on the record the reasons for his findings.

23
24
25
26
27
28

11

The legal basis of the Fifth and Sixth Amendment were stricken as unexhausted. ECF No. 60 at 9:9-10.

197

1
2
3
4

The judge shall set forth the reasons for his ruling on the application and direct
that they be entered on the Clerk's minutes. The denial of the modification of the
death penalty verdict pursuant to subdivision (7) of Section 1181 shall be
reviewed on the defendant's automatic appeal pursuant to subdivision (b) of
Section 1239. The granting of the application shall be reviewed on the People's
appeal pursuant to paragraph (6).

5 Cal. Penal Code § 190.4(e).
6

Petitioner alleges that the trial court, during the (Cal. Pen. Code § 190.4(e)) automatic

7 motion to modify and independently review of the evidence, did not mention and thus ignored
8 much 190.3(k) mitigating evidence of his abysmal childhood, adolescence in an alcoholic,
9 violent and dysfunctional family and his love and loyalty toward siblings, when it imposed the
10 death penalty following its independent review. (CT 1103; RT [10/ 27-31, 1988] at pp. 2-16.)
11 He claims the trial judge was not guided by aggravating and mitigating circumstances in
12 upholding death and thus failed to comply with the mandate of California Penal Code § 190.4(e).
13

The death penalty is constitutional if it “is imposed only after a determination that the

14 aggravating circumstances outweigh the mitigating circumstances present in the particular crime
15 committed by the particular defendant, or that there are no such mitigating circumstances.”
16 Blystone, 494 U.S. at 305. To the extent automatic modification under California’s capital
17 sentencing statute was part of the manner by which California fulfills its constitutional duty to
18 tailor and apply its death sentencing scheme in a rational manner, see Pulley, 465 U.S. at 52, the
19 evidentiary record shows the trial court reviewed the verdict, considered and discussed the
20 aggravating and mitigating circumstances and factors and made an individualized determination
21 of whether death was the proper punishment. RT [10/31/88] pp. 7-10; see Turner v. Calderon,
22 281 F.3d 851, 871 (9th Cir. 2002). The California Supreme Court’s conclusion that the trial
23 court’s review was proper under state law is binding on this Court. Wainwright v. Goode, 464
24 U.S. 78, 84 (1983) (per curiam).
25

The Court finds this claim raises solely an issue of state law without any claimed

26 constitutional error, Estelle, 502 U.S. at 68, leaving the federal court unable to review it. As
27 noted, habeas relief does not lie for errors of state law. Estelle, 502 U.S. at 67; Pulley, 465 U.S.
28
198

1 at 41 (“A federal court may not issue the writ on the basis of a perceived error of state law.”).
2 Petitioner’s claim that the trial court incorrectly conducted its review of the jury’s sentencing
3 verdict is not cognizable on federal habeas. See Turner, 281 F.3d at 871. The Supreme Court
4 has not held that such a review is required, and the high court has found California’s review
5 procedure to be constitutional. Pulley, 465 U.S. at 51-53.
6

Respondent contends this claim is not cognizable because it creates and retroactively

7 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
8 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
9 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
10

For the reasons stated, the Court finds that the state court rejection of the claim was not

11 contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable
12 determination of the facts in light of the evidence presented in the state court proceeding, viewed
13 most favoring the prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
14

Claim 59 is denied.

15

s.

16

In his penultimate claim, Petitioner alleges that the cumulative effect of constitutional

Review of Claim 60

17 error during the penalty phase warrants habeas relief. He cites to and incorporates claims 36-59
18 and argues cumulative error therefrom.
19

The state supreme court considered and rejected this claim on direct appeal, stating that:

20
21
22
23

Defendant claims that in combination, the errors at the penalty phase caused
cumulative prejudice warranting a reversal of penalty. After review of the record,
we disagree. Any prosecutorial misconduct that did occur did not significantly
influence the fairness of defendant's trial or detrimentally affect the jury's
determination of the appropriate penalty. [Citation]

24 Sanchez, 12 Cal.4th at 84.
25

The California Supreme Court also summarily denied claim 60 (SPet. Claim WW) as

26 raised in Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
27

Claims 36-59, ante, each fail for the reasons discussed above. Petitioner then cannot

28
199

1 make a sufficient showing that he was prejudiced by defense counsel’s cumulative
2 ineffectiveness during the penalty phase. The state court could reasonably have found that
3 Petitioner failed to show the cumulative effect of alleged penalty phase errors deprived him of
4 due process. These claims are insubstantial when considered cumulatively. See Karterman, 60
5 F.3d at 580; see also Rupe, 93 F.3d at 1445.
6

Respondent contends this claim is not cognizable because it creates and retroactively

7 applies a “new rule” of constitutional law within Teague v. Lane, 489 U.S. 288. However, the
8 Court finds the claim fails not because Petitioner seeks to apply a new rule of criminal procedure
9 under Teague, but rather on grounds the claim lacks merit for the reasons stated.
10

Accordingly, the Court finds that a fair-minded jurist could have found that Petitioner

11 failed to establish that the state court rejection of the claim was contrary to, or an unreasonable
12 application of, clearly established federal law, or an or an unreasonable determination of the facts
13 in light of the evidence presented in the state court proceeding, viewed most favoring the
14 prosecution. Jackson, 443 U.S. at 319. See 28 U.S.C. § 2254(d).
15

Claim 60 is denied.

16

t.

17

In his final claim, Petitioner alleges that his death sentence is grossly disproportionate

Review of Claim 61

18 given his actions, his merely vicarious culpability as an aider and abetter, and his severe
19 neurological and psychiatric impairments, violating his rights under the Eighth and Fourteenth
20 Amendments.
21

The state supreme court considered and rejected this claim on direct appeal, stating that:

22
23
24
25
26
27
28

Defendant contends his death sentence is disproportionate to his culpability under
the Eighth Amendment and article I, section 17 of the California Constitution,
which preclude punishment that is disproportionate to a defendant's individual
culpability. [Citation] Defendant complains that the constitutional proscription
against a disproportionate penalty has been especially violated in this case because
his accomplices in the murders received either 25 years to life pursuant to a
negotiated plea (Robert Reyes), or had the charges dismissed on insufficient
evidence grounds (Joey Bocanegra).
Defendant relies on People v. Dillon (1983) 34 Cal.3d 441, 479, in which the
court reduced a life sentence imposed on a 17-year-old with no prior convictions
200

1
2
3
4
5
6
7
8
9
10

for a noncapital first degree felony murder to a sentence for second degree
murder. But, as we have subsequently stated, Dillon does not mandate the type of
intra-case proportionality review sought by defendant. See People v. Hill, 3
Cal.4th 959, 1013 (1992).
As the People observe, intra-case proportionality review is “an examination of
whether defendant's death sentence is proportionate to his individual culpability
irrespective of the punishment imposed on others.” People v. Adcox, 47 Cal.3d
207, 274 (1987). “The Eighth Amendment to the federal Constitution does not
require us to incorporate into our proportionality determination any comparison of
defendant's sentence with that of another culpable person, whether charged or
uncharged.” Hill, 3 Cal.4th at p. 1014; Pulley, 465 U.S. 37, 53 (1984) [upholding
California's absence of comparative proportionality review].)
Accordingly, we reject defendant's plea for “intra-case proportionality.” The
evidence shows that he committed three brutal first degree murders of innocent
and defenseless victims as an accomplice, only thirty-three days after he was
released from state prison on parole from an eight-year prison term imposed for
two violent assaults. In light of the evidence presented at trial, the penalty is
proportionate to defendant's culpability. [Citation]

11 Sanchez, 12 Cal.4th at 84-85.
12

The California Supreme Court also denied claim 61 (SHCP Claim XX) raised in

13 Petitioner’s state petition for habeas corpus. In re Sanchez, S049502 (DD).
14

Petitioner purports to question the viability of Pulley. Yet he does not explain how and

15 why the Pulley decision is infirm, or provide any authority showing that it is. Instead he argues
16 simply that Pulley should not be applied to him because his liability was only vicarious and he is
17 actually innocent of the charged murders.
18

The claim is not persuasive.

Petitioner does not provide any sufficient basis for

19 questioning the holding in Pulley or its application in his proceeding.

Pulley was clearly

20 established authority at the time Petitioner’s conviction became final on October 7, 1996.
21

Petitioner does not distinguish or limit application of Pulley based on facts of this case.

22 Petitioner alleges his death sentence is disproportionate because the more culpable Reyes and
23 Joey were not sentenced to death. However, this argument cannot succeed given that there is no
24 federal proportionality requirement. Pulley, 465 U.S. 37. The Supreme Court held that “[o]n its
25 face, [California’s] system, without any requirement or practice of comparative proportionality
26 review, cannot be successfully challenged under Furman [v. Georgia, 408 U.S. 238 (1972)] and
27 our subsequent cases.”

Id. at 53.

California’s 1978 death penalty has been upheld as

28
201

1 constitutional by the United States Supreme Court. Ramos, 463 U.S. at 993-94. The federal
2 court has rejected proportionality review, Pulley, 465 U.S. at 53, as has the California Supreme
3 Court. Cox, 53 Cal.3d at 692. Moreover, the state court could reasonably find Petitioner’s death
4 sentence is not disproportionate to his culpability given the facts and circumstances of the crimes
5 and his involvement in the crimes. (See claims 1-4 and subclaim “x” of claim 58, ante.)
6

Petitioner alleges that his death sentence is disproportionate given California’s

7 extraordinarily large death pool. The Eighth Amendment requires that a state capital sentencing
8 system must: “1) rationally narrow the class of death-eligible defendants; and 2) permit a jury to
9 render a reasoned, individualized sentencing determination based on a death-eligible defendant's
10 record, personal characteristics, and the circumstances of his crime.” Marsh, 548 U.S. at 173-74.
11 As noted in claim 58, subclaim “x”, it was established at the time Petitioner’s conviction became
12 final that California’s system complied with these requirements. Pulley, 465 U.S. at 53-54.
13 Petitioner has not shown that Pulley does not control this case.
14

Petitioner’s re-argument of actual innocence fails for the reasons discussed in claims 2

15 and 4, ante.
16

In sum, the Court finds this claim is entirely foreclosed by Pulley. Therein, the Supreme

17 Court determined that the Eighth Amendment did not require a “state appellate court, before it
18 affirms a death sentence, to compare the sentence in the case before it with the penalties imposed
19 in similar cases if requested to do so by the prisoner.” Pulley, 465 U.S. at 43-44. The California
20 Supreme Court, applying state law, rejected Petitioner’s intra-case proportionality argument,
21 stating that:
22
23
24
25

The evidence shows that he committed three brutal first degree murders of
innocent and defenseless victims as an accomplice, only thirty-three days after he
was released from state prison on parole from an eight-year prison term imposed
for two violent assaults. In light of the evidence presented at trial, the penalty is
proportionate to defendant's culpability.

26 Sanchez, 12 Cal.4th at 84-85. The Bocanegra murders in which Petitioner participated were
27 violent, progressed over a period of time, and were bloody. (RT 2731, 2733, 2735-2736, 273928
202

1 2741, 2747-2749, 2752-2753, 2756, 2790-2797, 2799-2806, 2808-2820, 2829-2830, 2833-2834.)
2 The Tatman murder in which Petitioner participated involved massive blunt force blows to the
3 chest during a violent assault and stabbing. (RT 2646, 2650-2651, 2655, 2688-2695, 2718, 2842,
4 2846-2848, 2860.) Petitioner has not shown a reasonable probability that his sentence was
5 grossly disproportionate to the crimes, see Hamelin v. Michigan, 501 U.S. 957, 959 (1991), so as
6 to deny him a fair trial and a more favorable outcome.
7

Accordingly, for the reasons discussed above, the Court finds that the state court rejection

8 of the claim was not contrary to, or an unreasonable application of, clearly established federal
9 law, or an or an unreasonable determination of the facts in light of the evidence presented in the
10 state court proceeding, viewed most favoring the prosecution. Jackson, 443 U.S. at 319; see 28
11 U.S.C. § 2254(d).
12

Claim 61 is denied.

13

VII.

14

MOTION FOR EVIDENTIARY HEARING

15

On March 18, 2003, Petitioner filed a motion seeking an evidentiary hearing on claims 2,

16 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 24, 25, 28, 30, 31, 32, 33, 34, 36, 37,
17 38, 40, 43, 44, 45, 46, 47, 48, 50, 51, 52, 54 and 60. (ECF No. 120.) Petitioner alleges in his
18 motion that the state supreme court denied him a full and fair evidentiary hearing to resolve the
19 following facts showing prejudice, facts that were not presented at trial because of ineffective
20 assistance of counsel and prosecutorial misconduct:
21

1) Jailhouse informant Seeley’s statements, disclosed to the defense prior to trial but not

22 presented at trial by either side, that Reyes, the third person at the Bocanegra crime scene,
23 confessed to a more culpable role in Mr. Bocanegra’s murder, that Petitioner played no part in
24 killing Mr. Bocanegra, and that Reyes admitted being the initial aggressor against Mrs.
25 Bocanegra.
26

2) Inconsistencies between the physical evidence and jailhouse informant Hernandez’s

27 testimony at trial where he wanted to trade information for favorable treatment, exaggerated the
28
203

1 amount of time he spoke to Petitioner about the crime, failed to admit he was arrested for being
2 under the influence of heroin, and failed to admit he had been a heroin addict for over five years.
3

3) Principal perpetrator Joey Bocanegra’s violent temper, substance abuse through the

4 night and early morning before killing his parents, history of requesting money for drugs from
5 his parents and becoming violent if they refused his request.
6

4)

Testimony by prosecution witnesses, the crime scene analyst and the forensic

7 pathologist, supporting Petitioner’s defense that Reyes was Joey’s main assistant in the
8 Bocanegra murders.
9

5) Petitioner’s severe organic brain damage, low IQ, and serious psychiatric disorders,

10 known to defense counsel before trial but not investigated and presented at trial.
11

6) Defense counsel’s unreasonable acquiescence in the prosecution’s use of statements

12 Petitioner made to Detectives Stratton and Boggs which should have been excluded under
13 Miranda, and to reporter Trihey which should have been placed in context and shown they were
14 inconsistent with an inference that he intended to kill.
15

Respondent filed his opposition on July 18, 2003, arguing that an evidentiary hearing is

16 not warranted because the claims lack merit, there is no sufficient offer of proof, and the new
17 evidence presented by Petitioner does not cast doubt on the California Supreme Court’s finding
18 that Petitioner failed to set forth facts which constitute a constitutionally cognizable claim. (ECF
19 No. 137.) Petitioner filed a reply on September 19, 2003, re-arguing his position on the motion.
20 (ECF No. 140.)
21

Section 2254(d), as amended by the AEDPA, provides:

22

An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim--

23
24
25
26
27

(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

28
204

1 28 U.S.C. § 2254(d).
2

In Cullen v. Pinholster, the Supreme Court held that “review under § 2254(d)(1) is

3 limited to the record that was before the state court that adjudicated the claim on the merits,” and
4 thus “evidence introduced in federal court has no bearing on § 2254(d)(1) review.” Pinholster,
5 131 S. Ct. at 1398, 1400. Although the central holding of Pinholster pertained to § 2254(d)(1),
6 the Supreme Court observed that “§ 2254(d)(2) includes the language ‘in light of the evidence
7 presented in the State court proceeding,’” providing “additional clarity” that review under §
8 2254(d)(2) is also limited to the record before the state court. Id. at 1400 n.7. Therefore, for
9 claims that were adjudicated on the merits in state court, Petitioner can only rely on the record
10 that was before the state court to satisfy the requirements of § 2254(d). See Landrigan, 550 U.S.
11 at 474.
12

Petitioner seeks an evidentiary hearing on the forty-one claims set forth above. All of

13 those claims were adjudicated on the merits in the state court. See Richter, 562 U.S. at 99
14 (“[w]hen a federal claim has been presented to a state court and the state court has denied relief,
15 it may be presumed that the state court adjudicated the claim on the merits in the absence of any
16 indication or state-law procedural principles to the contrary). For the reasons stated above,
17 Petitioner fails to demonstrate that any of the forty-one claims overcomes the limitation of §
18 2254(d). Thus, Pinholster effectively bars a habeas court from any further factual development
19 on these claims. Id. at 1411 n.20.
20

Petitioner further claims that he is entitled to a hearing under 28 U.S.C. § 2254(e)(2).

21 Pinholster suggests this is not so.

“Section 2254(e)(2) continues to have force where §

22 2254(d)(1) does not bar federal habeas relief.” Id. at 1401. Analysis of the claims under §
23 2254(d) must precede the granting of an evidentiary hearing under § 2254(e)(2). Id. Thus, only
24 if Petitioner overcomes § 2254(d) can the Court consider a hearing under § 2254(e)(2). As
25 Justice Breyer stated: “If the federal habeas court finds that the state-court decision fails [§
26 2254](d)'s test (or if [§ 2254](d) does not apply), then an [§ 2254](e) hearing may be needed.”
27 Id. at 1412 (Breyer, J., concurring in part and dissenting in part).
28
205

1

As discussed above, § 2254(d) applies to all forty-one claims since they were adjudicated

2 on the merits, and Petitioner fails to overcome § 2254(d) with respect to any of the forty-one
3 claims.
4

For the reasons stated, Petitioner’s motion for evidentiary hearing shall be denied.

5

VIII.

6

MOTION AND RENEWED MOTION TO PRESERVE TESTIMONY

7

On June 25, 2014, Petitioner filed a motion to preserve testimony by deposing the

8 following seven witnesses:
9

Name

Case Relation

Age

10

Theodore S. Donaldson

Trial Defense Psychiatrist

87

11

Eugene F. Toton

Lead Trial Defense Attorney

78

12

Patricia L. McGregor

Trial Defense Investigator

70

13

Maria E. Valenzuela

Friend of victim, Mrs. Bocanegra

68

14

Susan M. Peninger

Trial Defense Investigator

67

15

Jeri A. Doane

Post-conviction Psychologist

67

16

David V. Foster

Post-conviction Psychologist

67

17 Each of these individuals previously filed a declaration in support of the instant petition. (ECF
18 No. 150.)
19

Petitioner argues good cause to preserve evidence because these witnesses are of

20 advanced age and their proposed testimony will be probative of the claimed ineffective
21 assistance of counsel, mental defenses, and Petitioner’s actions and lack of culpability, as alleged
22 in the petition. Respondent filed his opposition on August 27, 2014, arguing there is no good
23 cause for such relief because Petitioner is not entitled to an evidentiary hearing, and even if he
24 were, there is no showing of the probity of proposed testimony or that these witnesses would be
25 unavailable. (ECF No. 154.) Moreover, Respondent states his need for further discovery should
26 the motion be granted. Petitioner replied on September 3, 2014, re-arguing good cause to
27 preserve testimony relating to declarations of these aged witnesses already on file, and stating
28
206

1 that further discovery needs of Respondent can be litigated after the motion to preserve evidence
2 is granted.
3

On May 1, 2015, Petitioner filed a motion renewing the pending motion to preserve

4 testimony. (ECF No. 160.)
5

A judge may authorize discovery and may limit it under the Federal Rules of Civil

6 Procedure upon a showing of the reasons for the request and good cause. Rules Governing §
7 2254 Cases, Rule 6. Discovery should be allowed if it will help illuminate issues underlying
8 applicant’s claim. Gaitan-Campanioni v. Thornburgh, 777 F. Supp. 1355, 1356 (E.D. Tex.
9 1991). Availability of discovery during habeas is vested in the sound discretion of the district
10 court. Campbell v. Blodgett, 982 F.2d 1356, 1358, (9th Cir. 1993).
11

Federal Rule of Civil Procedure 27 provides in pertinent part that:

12
13
14
15
16

The court where a judgment has been rendered may, if an appeal has been taken
or may still be taken, permit a party to depose witnesses to perpetuate their
testimony for use in the event of further proceedings in that court.
The party who wants to perpetuate testimony may move for leave to take the
depositions, on the same notice and service as if the action were pending in the
district court. The motion must show:

17

(A) the name, address, and expected substance of the testimony of each deponent;
and

18

(B) the reasons for perpetuating the testimony.

19

If the court finds that perpetuating the testimony may prevent a failure or delay of
justice, the court may permit the depositions to be taken and may issue orders like
those authorized by Rules 34 and 35. The depositions may be taken and used as
any other deposition taken in a pending district-court action.

20
21
22

This Rule does not limit a court's power to entertain an action to perpetuate testimony and

23 may be used in habeas proceedings.

Calderon v. U.S. Dist. Court for Northern Dist. of

24 California, 144 F.3d 618, 621 (9th Cir. 1998); accord Martin v. Reynolds Metals Corp., 297 F.2d
25 49, 55 (9th Cir. 1961) (court has the power to order taking of deposition for purpose of
26 perpetuating evidence).
27

Good cause under Rule 27 may be found “[w]here specific allegations before the court

28
207

1 show reason to believe that the petitioner may, if the facts are fully developed, be able to
2 demonstrate that he is . . . entitled to relief . . . .” Bracy v. Gramley, 520 U.S. 899, 908-09 (1997),
3 citing Harris v. Nelson, 394 U.S. 286, 300 (1969).
4

Here, the Court finds that Petitioner has not made a sufficient factual showing to establish

5 good cause as required by Habeas Corpus Rule 6(a). Apart from age, Petitioner offers no facts
6 suggesting unavailability of these witnesses or reasons why this testimony will be lost if not
7 preserved. See Penn. Mut. Life Ins. Co., v. U.S., 68 F.3d 1371, 1373 (C.A.D.C. 1995). While
8 age of the deponent may be relevant in determining whether there is sufficient basis to perpetuate
9 testimony, Penn. Mut. Life Ins. Co., 68 F.3d at 1375, this Court, for purposes of this proceeding,
10 does not find age alone a sufficient basis to grant relief. Even if it were, Petitioner supports
11 probity of the proposed testimony only by citing generally to proposed deponents’ declarations
12 in the record. Petitioner does not state with sufficient specificity the expected substance of the
13 testimony and how it would lead to evidence, admissible under AEDPA, relevant to claims in his
14 petition and entitlement to relief. Petitioner has not made a sufficient showing that the proposed
15 discovery would lead to relevant evidence likely to be lost. See Martin, 298 F.2d at 55.
16

In sum, nothing reasonably suggests a basis to believe the proposed testimony would lead

17 to factual development showing entitlement to relief, and that the proposed testimony might
18 otherwise be lost. See Bracy, 520 U.S. at 908-09; see also Gilday v. Callahan, 99 F.R.D. 308,
19 309 (D.C. Mass. 1983) (no “good cause” under Rule 6 where the facts petitioner seeks to dispute
20 had been resolved by state court).
21

For the reasons stated, Petitioner’s motion to preserve evidence, as renewed, shall be

22 denied.
23

IX.

24

MOTION FOR CASE MANAGEMENT CONFERENCE

25

On May 1, 2015, Petitioner filed a motion requesting a case management conference to

26 discuss any assistance the Court might require to resolve the pending motion for evidentiary
27 hearing. (ECF No. 159.)
28
208

1

However, there is no need for a case management conference given the discussion above

2 denying the motion for evidentiary hearing. The motion for case management conference shall
3 be denied.
4

X.

5

REQUEST TO SEAL AND PROTECT SUPPLEMENTAL LODGED DOCUMENTS

6

On June 23, 2015, Respondent filed a request that the following documents be filed under

7 seal and protected from disclosure: (1) the Request to Seal the November 25, 1987 Reporter’s
8 Transcript & Penal Code Section 987.9 Materials, totaling two (2) pages, (2) the November 25,
9 1987 Reporter’s Transcript (conditionally sealed Lodged Document # II), totaling Seven (7)
10 pages, (3) all Penal Code Section 987.9 Materials (conditionally sealed Lodged Document #
11 QQ), totaling ninety-five (95) pages, and (4) a [Proposed] Order Sealing the conditionally sealed
12 Lodged Documents # II and # QQ), totaling one (1) page.
13

Respondent argues that these documents, sealed state court records, contain confidential

14 information that should be protected from disclosure in this proceeding.

Local Rule 141;

15 California Penal Code Section 987.9(d).
16

The Court notes that Petitioner has been served with copies of these supplemental record

17 documents. He has not opposed Respondent’s request and the time for doing so has passed.
18 Local Rule 141(c).
19

Documents may be sealed only by written order of the Court, upon the showing required

20 by applicable law.

Local Rule 141(a).

Confidential information may be protected by a

21 protective order. Local Rule 141.1(a)(1).
22

The Court has reviewed the request to seal and protect documents and the supplemental

23 lodged documents, and based thereon finds good cause to grant the request.
24

The supplemental lodged documents, sealed and unsealed, were not considered by the

25 Court in its analysis and disposition of the foregoing claims.

The Court notes that these

26 documents, to the extent they are evidence of trial counsel’s defense of Petitioner, do nothing but
27 support effective assistance by trial counsel and the Court’s above analysis and disposition. (See
28
209

1 [Sealed] Supplemental Lodged Documents #II and #QQ.)
2

XI.

3

CERTIFICATE OF APPEALABILITY

4

Because this is a final order adverse to the petitioner, Rule 11 of the Rules Governing

5 Section 2254 Cases requires this court to issue or deny a Certificate of Appealability (“COA”).
6 Accordingly, the Court has sua sponte evaluated the claims within the petition for suitability for
7 the issuance of a COA. See 28 U.S.C. § 2253(c); Turner, 281 F.3d at 864–65 (9th Cir. 2002).
8

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

9 district court's denial of his petition, and an appeal is only allowed in certain circumstances.
10 Miller–El, 537 U.S. at 335–36 (2003). The controlling statute in determining whether to issue a
11 COA is 28 U.S.C. § 2253, which provides as follows:
12
13
14
15
16
17
18
19
20
21
22
23
24

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court of
appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial
a person charged with a criminal offense against the United States, or to test the
validity of such person's detention pending removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).
The court may issue a COA only “if jurists of reason could disagree with the district

25 court’s resolution of his constitutional claims or that jurists could conclude the issues presented
26 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v.
27 McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of
28
210

1 his case, he must demonstrate “something more than the absence of frivolity or the existence of
2 mere good faith on his . . . part.” Miller-El, 537 U.S. at 338.
3

In the present case, the Court finds that, with respect to the following claims, reasonable

4 jurists could disagree with the Court’s resolution or conclude that the issues presented are
5 adequate to deserve encouragement to proceed further:
6

1)

Claim 8: Whether defense counsel provided ineffective assistance by failure to

7 investigate and present testimony of jailhouse informant Charles Seeley.
8

2)

Claim 59: Whether the trial court failed to consider Petitioner’s mitigations

9 evidence when it imposed the death penalty.
10

3)

Claim 61: Whether imposition of the death penalty is constitutionally

11 disproportionate as to Petitioner.
12 Therefore, a certificate of appealability is granted as these three claims.
13

As to the remaining claims and requests for evidentiary hearing and to preserve

14 testimony, the Court concludes that reasonable jurists would not find the Court’s determination
15 that Petitioner is not entitled to relief debatable, wrong, or deserving of encouragement to
16 proceed further. Petitioner has not made the required substantial showing of the denial of a
17 constitutional right. He has not demonstrated good cause to preserve testimony. Accordingly,
18 the Court hereby declines to issue a COA as to the remaining claims and requests for evidentiary
19 hearing and to preserve testimony.
20

XII.

21

ORDER

22

Accordingly, for the reasons stated, it is HEREBY ORDERED that:

23

1.

The Petition for Writ of Habeas Corpus (ECF No. 38) is DENIED,

24

2.

Petitioner’s motion for evidentiary hearing (ECF No. 120) is DENIED,

25

3.

Petitioner’s motion to preserve testimony (ECF No. 150) and renewed motion to

26
27

preserve testimony (ECF No. 160) are DENIED,
4.

Petitioner’s motion for a case management conference (ECF No. 159) is

28
211

1
2

DENIED.
5.

Respondent’s request to seal and protect supplemental lodged documents (ECF

3

No. 162) is GRANTED such that:

4

a.

The Clerk of the Court is directed to file under seal, (1) Petitioner’s Request

5

to Seal November 25, 1987 Reporter’s Transcript & Penal Code Section 987.9

6

Materials, totaling two (2) pages, (2) the November 25, 1987 Reporter’s

7

Transcript (conditionally sealed Lodged Document # II), totaling Seven (7)

8

pages, (3) all Penal Code Section 987.9 Materials (conditionally sealed

9

Lodged Document # QQ), totaling ninety-five (95) pages, and (4) a

10

[Proposed] Order Sealing Supplemental Lodged Documents # II and # QQ),

11

totaling one (1) page,

12

b.

The above documents filed under seal and the information therein constitute

13

confidential information which shall not be disclosed, in whole or part, to any

14

person other than the Court and Court staff and individually named counsel

15

for the parties for their use solely in connection with litigation of the habeas

16

petition pending before this Court,

17

c.

18

No publicly filed document shall include the above documents and/or the
information therein unless authorized by the Court to be filed under seal, and

19

d.

All provisions of this order shall continue to be binding after the conclusion

20

of this habeas corpus proceeding and specifically shall apply in the event of a

21

retrial of all or any portion of Petitioner’s criminal case, except that either

22

party maintains the right to request modification or vacation of this order.

23

6.

24
25

59 and 61,
7.

26
27

A Certificate of Appealability is ISSUED as to the Court’s resolution of claims 8,

A Certificate of Appealability is DECLINED as to claims 1-7, 9-58, and 60, and
as to the requests for evidentiary hearing and to preserve testimony,

8.

Any and all scheduled dates are VACATED, and

28
212

1

9.

The Clerk of the Court is directed to substitute RON DAVIS, acting Warden of

2

San Quentin State Prison, as the Respondent warden in this action, and to enter

3

judgment accordingly.

4
5

IT IS SO ORDERED.

6 Dated: July 22, 2015

SENIOR DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
213