Ortega v. People of the State of California

Filing 30

FINDINGS and RECOMMENDATIONS recommending that Petition for Writ of Habeas Corpus be DENIED; Judgment be entered for Respondent; Court DECLINE to Issue a Certificate of Appealability re 1 Petition for Writ of Habeas Corpus filed by Mark Curtis Ortega ; referred to Judge Ishii,signed by Magistrate Judge Sheila K. Oberto on 03/27/2015. Objections to F&R due by 5/4/2015 (Martin-Gill, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11 MARK CURTIS ORTEGA,

Case No. 1:12-cv-00070-AWI-SKO-HC

12

FINDINGS AND RECOMMENDATIONS TO
DENY THE PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 1)

13

Petitioner,
v.

14
15 MARTIN BITER, Warden,
16

Respondent.

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

FINDINGS AND RECOMMENDATIONS TO
ENTER JUDGMENT FOR RESPONDENT AND
TO DECLINE TO ISSUE A CERTIFICATE
OF APPEALABILITY
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court is the petition, which was filed on
December 23, 2011.
July 30, 2012.
I.

Respondent filed an answer to the petition on

Petitioner filed a traverse on September 24, 2012.

Jurisdiction

Because the petition was filed after April 24, 1996, the
effective date of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), the AEDPA applies in this proceeding.
1

Lindh v.

1 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002,
2 1004 (9th Cir. 1999).
3

The challenged judgment was rendered by the Superior Court of

4 the State of California, County of Fresno (FCSC), located within the
5 territorial jurisdiction of this Court.
6 §§ 84(b), 2254(a), 2241(a), (d).

28 U.S.C.

Further, Petitioner claims that in

7 the course of the proceedings resulting in his conviction, he
8 suffered violations of his constitutional rights.
9

The Court concludes it has subject matter jurisdiction over the

10 action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which
11 authorize a district court to entertain a petition for a writ of
12 habeas corpus by a person in custody pursuant to the judgment of a
13 state court only on the ground that the custody is in violation of
14 the Constitution, laws, or treaties of the United States.

Williams

15 v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562
16 U.S. - , -, 131 S.Ct. 13, 16 (2010) (per curiam).
17

An answer was filed on behalf of Respondent Warden Martin

18 Biter, who had custody of Petitioner at the Kern Valley State
19 Prison, his institution of confinement when the petition and answer
20 were filed.

(Doc. 23.)

Petitioner thus named as a respondent a

21 person who had custody of Petitioner within the meaning of 28 U.S.C.
22 § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in
23 the District Courts (Habeas Rules).

See, Stanley v. California

24 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

The Court

25 concludes that it has jurisdiction over the person of the
26 Respondent.
27 ///
28 ///
2

1

II.

A.

2
3

Background
Procedural Summary

In its unpublished decision filed on April 15, 2011, the Court

4 of Appeal of the State of California, Fifth Appellate District (CCA)
5 summarized the charges and the jury’s findings as follows:
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

On November 20, 2008, the Fresno County District Attorney
charged defendant with murder (Pen.Code, § 187, subd. (a);
count 1), two counts of home invasion robbery (§§ 211,
213, subd. (a)(1)(A); counts 2 & 3), arson (§ 451, subd.
(d); count 4), receiving stolen property (§ 496, subd.
(a); count 5), and participation in a criminal street gang
(§ 186.22, subd. (a); count 6). As to count 1, the
information further alleged that defendant committed the
murder during the commission of a robbery (§ 190.2, subd.
(a)(17)(A)), that a principal intentionally discharged a
firearm causing a death (§ 12022.53, subds.(d), (e)(1)),
and that defendant committed the murder in association
with a street gang with the specific intent to promote the
gang (§ 186.22, subd. (b)(1)). As to counts 2 and 3, the
information alleged that a principal intentionally
discharged a firearm causing a death during commission of
the robbery (§ 12022.53, subds.(d), (e)(1)), and that
defendant committed the robberies in association with a
street gang with the specific intent to promote the gang
(§ 186.22, subd. (b)(1)). The information also alleged
that defendant suffered a prior conviction within the
meaning of the Three Strikes law (§§ 667, subds.(b)-(i),
1170.12, subds. (a)-(d)), and that he suffered a prior
serious felony conviction (§ 667, subd. (a)(1)).
...
Defendant's codefendants, Hernandez and Oscar Verdugo,
were charged with the same counts, except for count 5
(receiving stolen property).
The jury found defendant guilty as charged on counts 1
through 5, and found true the special allegations. The
jury found Hernandez guilty on counts 2 and 3, and not
guilty on counts 1 and 4. The jury acquitted Verdugo on
all counts.
On the bifurcated gang charge (count 6), gang allegations,
and prior conviction allegations, the trial court found
3

1
2
3

defendant guilty on count 6, and found true the gang and
prior convictions allegations. (Footnotes omitted.)
People v. Mark Curtis Ortega, case number F057431, 2011 WL 1449538,

4 at *1-*2 (April 15, 2011).
5
6

B.

Factual Summary

In a habeas proceeding brought by a person in custody pursuant

7 to a judgment of a state court, a determination of a factual issue
8 made by a state court shall be presumed to be correct; the
9 petitioner has the burden of producing clear and convincing evidence
10 to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1);
11 Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). This
12 presumption applies to a statement of facts drawn from a state
13 appellate court’s decision. Moses v. Payne, 555 F.3d 742, 746 n.1
14 (9th Cir. 2009). The following statement of facts is taken from
15 the CCA’s opinion of April 15, 2011.
16

FACTS

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

On March 28, 2008, at about 9:00 or 10:00 p.m., defendant
(nicknamed “Little Demon”) and Hernandez (nicknamed
“Mellow”) picked up 21–year–old Benita (nicknamed “Cute”)
at her boyfriend's apartment.FN4 Benita had known
defendant for about a month and had socialized with him
about a dozen times. She had known Hernandez for about as
long, but she had only seen him a few times. Defendant was
driving a stolen Mazda Tribute sport utility vehicle (the
SUV), the vehicle Benita had always seen him drive.FN5 He
was wearing a red shirt, and both he and Hernandez were
wearing red bandanas around their necks. They drove to the
store for cigarettes, then went to a house where they
joined several other people, including Verdugo (nicknamed
“Little Silent”), whom Benita had never met. Everyone at
the party had been smoking methamphetamine and was “high”
or “tweaking.” At some point, defendant pulled his red
bandana over his face and took pictures of himself and
Hernandez with a cell phone. When the methamphetamine
4

1
2

started to run low, defendant said they should go get
more, and Hernandez agreed.

7

FN4. Benita was on probation for possessing
stolen property. She also had a prior
misdemeanor conviction for lying to a police
officer, and a prior juvenile conviction for
running away with her own child. In this case,
she pled to home invasion robbery and was
sentenced to 10 years in prison in exchange for
her testimony.

8

FN5. The SUV was stolen on January 19, 2008.

3
4
5
6

9
10
11
12
13
14

During the party, Benita was sending text messages to 27–
year–old Regina. Regina was like a mother to Benita and
she called her “[M]om.” Benita had lived with Regina in
the past and wanted to move back in. Regina had told
Benita she could move in, and Benita wanted to pay her a
good faith deposit to show she could actually pay the
rent.FN6 Benita had been staying with her boyfriend for
about one month and she was looking for a permanent
residence because she and her boyfriend had been
arguing.FN7

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

FN6. On cross-examination, Benita testified that
she called Regina on about March 27. Regina
asked Benita if she had spoken to her younger
sister, Heather. Benita said she had not. Regina
was upset and told her that Heather had stolen
drugs from her.
FN7. On cross-examination, Benita testified that
she was not in school and did not have a job.
She was “just out there messing up. Hanging
around with the wrong crowd.”
Defendant asked Benita if he could borrow her cell phone.
Benita let him use the phone and when he returned it to
her, she could see he had accessed her contacts list. He
asked her, “Who is that girl Regina in your phone?” Benita
said she was a friend. Defendant asked Benita if she
wanted a ride to Regina's home. Benita said she wanted a
ride to her own home, but defendant insisted on taking her
to Regina's home.FN8 Defendant got up and went outside.
Benita and Hernandez followed. Defendant and Hernandez
walked away from Benita and conversed for about five
5

1
2
3
4
5
6
7

minutes while she talked to her boyfriend on her cell
phone. When defendant returned to her, he asked her again
if she wanted to get dropped off at Regina's. Again, she
told him no, she wanted to go home. Defendant asked her if
Regina still sold drugs and Benita replied that she did.
FN9 Defendant said, “All right[,] I'm going to take you to
Regina's.”
FN8. On cross-examination, a detective testified
that text messages from Regina to Benita showed
that Regina was expecting Benita to come to her
apartment that night.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

FN9. On cross-examination, Benita testified that
Regina had been selling small amounts of drugs
for about one year to make extra money on the
side. Benita had used methamphetamine for a few
years. She smoked methamphetamine three or four
times per week, but she did not get drugs from
Regina. Benita usually smoked methamphetamine
when she was with defendant.
At about 1:45 a.m., defendant got in the SUV. Benita got
in the passenger seat and Hernandez and Verdugo got in the
back seat.FN10 Defendant's rifle was between the seats by
his right leg; Benita had always seen him with it. He
frequently played with it and she had seen him shooting
chickens with it in the mountains. As they drove to
Regina's apartment, which was on First Street, diagonally
across from Radio Park, defendant passed the rifle to the
back seat. Defendant parked the SUV about half a block
from Regina's apartment, on a side street perpendicular to
the alley that ran behind the apartments. Everyone got out
of the SUV and defendant told Benita to go inside. Benita
thought they were just going to drop her off, but they
said they were going to another house nearby. Defendant
told Benita to contact them when she was ready to leave
Regina's.
FN10. Benita testified that Verdugo asked
defendant to take him home.
Benita walked down the alley and knocked on Regina's back
door because Regina was usually in the back bedroom on the
back side of the apartment. No one answered, so Benita
went to the front door and rang the doorbell. Again no one
answered, so she left and returned to the SUV. The three
6

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

men were still standing next to the SUV talking. Defendant
asked Benita why she had returned. When she said no one
answered the door, defendant told her to go back to
Regina's apartment. As she walked back, she called Regina
and asked her to let her in. It was not unusual for Benita
to show up at Regina's apartment late at night. When
Benita knocked on the front door, Gabriel, Regina's exboyfriend, answered the door.
Benita knew Gabriel because he and Regina had been
together a long time, but Benita did not expect to see him
there. She was surprised because she had not seen him for
about a year. Benita did not like the way he had treated
Regina in the past.FN11 When Gabriel answered the door, he
had his socks off, as though he had been there a while.
Benita assumed he was going to stay the night with Regina.
FN11. On cross-examination, Benita testified she
did not like Gabriel because he had beaten
Regina in the past. Benita thought he was
violent. She knew he had hit Regina in the face
and Regina had gotten a restraining order
against him. As far as Benita knew, Regina did
not want him around. Benita was afraid Regina
was making a mistake by letting him back into
her home. Benita had seen him act violently in
the past. He sometimes had a tendency to become
violent when he was under the influence of
methamphetamine.

18
19
20
21
22
23
24
25
26
27

Benita went into Regina's bedroom and gave Regina a hug.
Benita gave Regina $50 as a deposit for moving back into
her apartment. They sat and talked with Gabriel.FN12
Benita and Regina smoked some methamphetamine, but did not
share it with Gabriel because Regina did not want him to
smoke. Regina told Benita not to pass the methamphetamine
to him. Gabriel was going in and out of the room. It did
not appear to Benita that there was any tension between
Gabriel and Regina, that they were arguing, that he was
injured, or that they were surprised to see Benita. Regina
did not complain to Benita that she and Gabriel were
fighting.
FN12. On cross-examination, Benita testified
that on the night of the murder, Regina again
told her that Heather had stolen an eight ball

28
7

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

from her. Benita thought an eight ball was worth
about $280.
Regina's current boyfriend, Matthew, kept calling Regina,
but she did not want to talk to him and she kept telling
him to stop calling. After a short time, Benita went into
the kitchen to eat something. Defendant called Benita and
said they would be right back. Benita finished eating her
burrito and returned to the bedroom to talk with Regina.
Benita sent a text message to defendant to hurry and come
pick her up. He responded that they wanted to buy some
drugs from Regina, and Benita should let them in when they
got there. Benita did not mention defendant or Hernandez
to Regina.
Benita did not see Gabriel consume any drugs at Regina's
apartment that night, but he was “tweaking real bad.” He
was restless, moving around a lot, and could not sit
still. Benita could tell he was high when he opened the
apartment door, but she did not see him exhibit any type
of violence, such as yelling, screaming, or pushing. Nor
did she see him argue with Regina or raise his voice.
Benita's boyfriend called her and they started to argue.
She went into the living room and continued arguing with
him. He wanted her to come home. She said she was trying
to go home, but defendant was “acting stupid” and would
not give her a ride home. Her boyfriend could not pick her
up because he did not have a car. Defendant repeatedly
sent her text messages, asking her which apartment was
Regina's. According to cell phone records, defendant and
Benita exchanged 42 text messages in the hour between 2:20
a.m. and 3:20 a.m. Benita sent defendant Regina's address.
At some point, a
talked to Regina
woman was buying
but she had seen

woman came into Regina's apartment and
for a few minutes. Benita thought the
methamphetamine. Benita did not know her,
her in jail a few times.FN13

FN13. On cross-examination, Benita testified
that a lot of people came into Regina's
apartment at night to buy drugs. Benita wanted
to help Regina stop selling drugs out of her
home because a lot of riffraff came over and
Benita thought it was dangerous for Regina.

28
8

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

While Benita was still in the living room, and Regina and
Gabriel were in the front bedroom, Benita heard the back
door open. She saw defendant and Hernandez walk in the
back door, which was unlocked. Benita went to the door and
asked defendant what he was doing because they just walked
in. Defendant and Hernandez were wearing sweaters and they
stood right next to each other with their hands behind
their backs. Benita did not see a gun. Defendant put his
hand on Benita's face and told her to shut up, and he
guided her toward the door. Again, she asked him what he
was doing and he told her to shut up. He said to her in a
harsh whisper, “Shut up, Benita. I'm trying to rob this
bitch.” But Benita protested. Defendant told her “not to
trip.” He promised not to harm Regina. He said that “his
word [was] with Bond,” and he “put that on the block he
wasn't going to hurt Regina.” This meant that he was
promising on his street and on the Bond Street Bulldog
gang members with whom he claimed to associate. He
repeatedly told Benita to go to the car, but she refused.
She begged them not to do anything. Defendant was getting
mad and he told her to “get the fuck in the car.”
Hernandez pushed her out the door and promised not to let
defendant harm Regina. Benita was afraid. She left the
apartment and walked to the alley. She was surprised to
see that the SUV was now parked in the alley behind
Regina's garage. The SUV was running and Verdugo was in
the driver's seat. Benita got into the passenger's seat.
She was angry. Verdugo asked if she was all right, and he
asked if she knew Regina. She told him she knew Regina,
but she did not speak to him further because she was
angry. Verdugo told her “not to trip” and “it was going to
be all right.”
According to Gabriel, when Benita was in the living room
looking at her cell phone, he and Regina heard a knock on
the back screen door and Regina looked at him with a
worried expression.FN14 Then defendant and Hernandez
barged into the room. Defendant was wearing a red beanie
on his head and a red bandana covering his face. He was
holding a rifle. Hernandez was wearing a dark jacket with
a hood over his head. Defendant immediately shot Regina
and she fell to the floor. Hernandez hit Gabriel on the
side of his head with a fist. Then Hernandez yelled at
Regina, “Where are your keys, bitch?” Hernandez yelled at
Gabriel, “Give me your shit.” Gabriel gave Hernandez his
house keys and said, “I don't have anything else.”

28
9

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

Hernandez left Regina's purse on the bed and ran out of
the room.FN15
FN14. Gabriel's testimony contradicted Benita's
in various regards. He testified that he arrived
after Benita, and found Regina and Benita in the
bedroom talking.
FN15. Gabriel never saw Hernandez's face and he
saw defendant's eyes only. Gabriel could not
identify either of them.
Defendant kicked Regina and asked her, “Where is the
money, bitch?” While he was kicking her, he kept the rifle
pointed at Gabriel, who was sitting on the bed. Gabriel
was afraid and he regretted not being able to protect
Regina. Defendant told Gabriel to lie face-down on the
bed, but Gabriel refused to comply for fear that defendant
would shoot him in the back of his head. Gabriel held his
hands up and said, “I don't have anything to do with this.
I don't know what's going on.” Defendant said, “I heard
she's got a gun, too. Do you know where the gun's at?”
Gabriel said, “I never knew about her having no gun.” When
defendant again asked where the money was, Gabriel offered
to look through Regina's purse for him. Defendant signaled
for him to do it, so Gabriel grabbed the purse and dumped
it on the bed. He found a gold bracelet, but no money.
Defendant said, “I'm going to kill this bitch.” He told
Gabriel he was going to kill him too because he thought
Gabriel was going to try something. Defendant said he was
getting an “itchy trigger finger” and he was “ready to die
by the Fresno PD.” Afraid for his life, Gabriel told
defendant, “My cousin is Donkey,” referring to a cousin
who was well-known in prison. Gabriel hoped defendant
would realize there would be retribution if he hurt him.
Gabriel repeated that he would not do anything and that he
did not know what was going on. Defendant told him to go
sit in the hallway with his legs crossed and his hands on
his head. He said, “I ain't going to kill you[;] it's this
bitch.” Gabriel asked defendant why he was going to kill
Regina, and he answered, “She burned my homeboy. Sold him
50 dollars worth of cut.” This meant the methamphetamine
appeared to be real, but was not.
Gabriel heard defendant shoot the rifle a few more times,
then defendant said, “I'm gone,” and he ran past Gabriel.
10

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

Gabriel thought the rifle sounded like a .22–caliber
rifle. Gabriel waited about 10 seconds, then got up and
went to Regina. He told her, “It's okay. Get up. They're
gone.” He picked her up and sat her on the bed, but she
fell back on her back, unresponsive. He said, “They're
gone. They're gone.” She gasped for air and her eyes
rolled back in her head. When Gabriel saw blood on his
hand, he lifted Regina's shirt and saw a bullet wound near
her pelvis. Only then did he realize she had been shot. He
ran around the apartment looking for a telephone, then ran
outside and told a neighbor to call 911. While Gabriel was
speaking to the 911 operator, he went back into the
apartment to check on Regina, and reported that she was
still not responsive. Gabriel waited outside the apartment
for the police.
Gabriel admitted at trial that he had originally lied
about these events to the police because he was violating
a restraining order by being near Regina. He was afraid he
would get arrested for violating the restraining order,
and he also knew he would be a suspect in the shooting. He
initially said he was walking down the street when he
heard a gunshot from the apartment.
Gabriel also admitted having three prior misdemeanor
convictions: spousal battery in 2005, receiving stolen
property in 2006, and giving false information to a police
officer in 2008. Gabriel testified that these convictions
did not cause him to testify untruthfully. He testified
that he did not bring a gun to Regina's apartment and he
did not kill her. He was currently in compliance with his
probation, although he had violated it, and he was almost
finished with his batterer's treatment program.FN16
FN16. On cross-examination, Gabriel said he
would often go to Regina's to do things for her.
He would help her out around the house and she
would pay him cash. He had been to her apartment
five or six times in the past year. They
maintained a sexual relationship, although she
made it clear to him that they were not
“together” and that he was not “her man.”
Gabriel described her as the love of his life.
He had deep feelings for her, but it did not
upset him that she had a boyfriend. He also had
a girlfriend. He and Regina had an understanding
that their relationship was just sex. The night
11

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

she was killed, Regina wanted Gabriel to come
over, but she told him that he could not come if
her boyfriend was there, and Gabriel agreed.
Gabriel knew Regina was selling methamphetamine.
He was addicted to it at the time.
Gabriel admitted that he had battered and falsely
imprisoned Regina in 2005. He held her down and put his
hands over her face, causing her injuries. She called the
police and Gabriel pled guilty to those charges. Gabriel
admitted that he thereafter continued to violate the
restraining order granted by a court in May 2006. Gabriel
denied that the injury he sustained the night Regina was
killed resulted from a scuffle he had with Regina in which
she lost three fingernails. Gabriel denied shooting and
killing Regina.
Benita testified that she did not see Gabriel with a gun
that night and she did not see Gabriel kill Regina. The
only person she saw with a gun was defendant.
Meanwhile, about five minutes after Benita got in the SUV
in the alley, defendant returned to the SUV carrying his
rifle and Regina's purse. Benita asked him what he was
doing and he told her to shut up. He put the purse in the
back seat and the gun on the floor. Verdugo asked
defendant what the hell he was doing. Defendant told him,
“Don't trip,” and said they were going to leave right
away. Defendant walked away from the car and Benita
assumed he returned to the apartment. Benita heard
Regina's car alarm go off, then saw her garage door open
and Hernandez back Regina's red Geo Prizm out of the
garage. Defendant returned to the SUV and got in the back
seat. Verdugo was mad at defendant and he cussed and
yelled at him until they reached their destination.
Defendant just laughed at Verdugo, which made him even
madder. He angrily shook his head.
Regina's cell phone rang inside her purse. Upset, Benita
told defendant he was “fucked up.” He told her to “stop
tripping.” He put his hand on her shoulder and asked her
if she heard any gunshots. She said she did not. He said,
“All right,” and told her to shut up. He said he was going
to drop her off at home and she could call Regina in the
morning. They drove back to the house where the party was
held. Hernandez met them there in Regina's car.

28
12

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

Chica, a young woman at the party, came out and asked
about Regina. Chica recognized Regina's car and asked
Benita, “Is that Regina's car over there? [¶] ... [¶] Is
Regina in there? Tell her to get down and say hi.”
Hernandez told Benita not to say anything. Defendant told
someone, “Take that bitch inside and tell her to shut up.”
Chica saw defendant come back into the house. Then she saw
some girls looking through a purse. Chica assumed it was
Regina's purse because she knew Regina and recognized the
types of things she carried. Chica knew Regina would not
go anywhere without her purse and Chica started to realize
they had stolen her purse or done something else to her.
Chica asked someone to remove the purse from her sight.
Chica felt Benita was not a good friend to Regina because
Benita was around Regina for the methamphetamine and
because Benita's sister, Heather, had stolen from Regina.
Chica thought Benita and defendant had been together at
the party, perhaps as boyfriend and girlfriend.
Benita stayed in the car, and after a few minutes, she,
defendant, and Verdugo left. When defendant dropped Benita
off at the apartment, she went directly inside and started
to cry. She was mad and afraid. Her boyfriend asked her
what was wrong, but she did not tell him what had
happened. She wanted to call Regina to see if she was
okay, but she did not know her home number. Benita stayed
up all night.FN17
FN17. On cross-examination, Benita testified
that as she walked back to her apartment, she
deleted most of the text messages from defendant
because she did not want her boyfriend to see
them. She denied that she deleted them because
she was afraid the messages would reveal that
she tried to get defendant to come to Regina's
to help clean up the mess Benita created when
she killed Regina. Benita denied killing Regina.
Officers responded to Regina's apartment at 3:42 a.m., two
minutes after being dispatched. Gabriel answered the door
almost instantly. He was on the telephone, apparently
speaking to the police dispatcher.FN18 The officers found
Regina lying on the bed with her legs hanging down. She
was gasping for air and her eyes were open, but her pupils
were totally dilated and she was not blinking. Her eyes
were becoming dry. The officers observed a small bullet
13

1
2
3
4
5
6
7

wound in her right pelvis from a .22–caliber gunshot, and
a small graze wound on her right arm. Regina was taken to
the hospital.
FN18. On cross-examination, an officer testified
that the door to the apartment was closed when
he and another officer arrived. Gabriel answered
and led the officers to the kitchen as he spoke
on the telephone, and the officers were
frustrated by his preoccupation with his
telephone conversation. Eventually, Gabriel told
them Regina was in the bedroom.

8
9
10
11
12
13
14

Four expended .22–caliber cartridges were found in
Regina's living room, hallway, and bedroom. A
criminologist later determined that two of the four
expended .22–caliber cartridges found in Regina's
apartment had been fired by defendant's rifle. Two of the
expended cartridges could not be conclusively identified
as having been fired by the rifle.
At 4:42 a.m., Benita received a text message from
defendant asking her how she was going to act. He said,
“Man my girl. How gonna you act.”

15
16
17

At 7:33 a.m., Benita received another message from him
telling her he was leaving town. He said, “Cute, I'm gone
b. Yo boy wiggin out.” “I'm smashing out of town.” “C U
when I see U.”

18
19
20
21
22
23
24
25
26
27
28

At about 8:00 a.m., Regina died at the hospital.
After learning of Regina's death, the detective assigned
to the case went to the hospital to view her body. He
noticed she had several broken fingernails. When Regina's
entire apartment was searched, no fingernails and no
telephone or cell phone were found.
Also at about 8:00 a.m., defendant gave Chica a ride to
work. Defendant drove with a rifle across his lap.
Hernandez, who was also in the car, had a long, samuraitype sword.
At 8:00 or 9:00 a.m., detectives interviewed Gabriel at
the police station. Gabriel had just learned that Regina
had died, and he was sobbing and crying. He had a red mark
on the side of his head and down his neck. When a
14

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

detective noticed some red marks (but no broken skin) on
Gabriel's arm, Gabriel explained that he had scratched
himself.FN19 Gabriel demonstrated how easily he could
scratch himself. The marks he made faded during the
interview. Soon after the detectives spoke to Gabriel,
their investigation began to focus on Benita and the three
defendants.FN20
FN19. On cross-examination, the detective
testified that he said to Gabriel, “Looks like a
chick scratched you.”
FN20. On cross-examination, the detective
testified that Gabriel first said he went into
Regina's apartment because he thought two men
had left the apartment and he thought it was
unusual or suspicious. The detective told
Gabriel he knew he had been in the apartment.
Gabriel was nervous and said he knew he was a
suspect. Finally, he admitted being inside
Regina's apartment and witnessing her shooting.
The detective requested that Gabriel be tested
for gunshot residue, which was collected but
never tested. Gabriel told the detective that
Benita's sister, Heather, had been living with
Regina, and Regina had accused Heather of
stealing methamphetamine from her about two days
before.
At about 10:00 a.m., defendant and Hernandez came to
Benita's apartment. They came into her bedroom and
defendant told her, in her boyfriend's presence, that they
wanted to take her to the mountains. She refused because
she was mad at defendant and she did not want to go
anywhere with him. She had gone to the mountains with him
once or twice in the past. After her boyfriend left the
room, Benita asked defendant what had happened, but he
shook his head and did not answer. He kept saying, “Get
your stuff[;] we're going to the mountains. We can't be
here.” Then he said, “I think I murked [Regina],” which
meant he thought he had killed her. Benita started crying
and told defendant to get out. He put his head down and
repeated that he was sorry. Hernandez just shook his head.
Benita told them to leave. She went outside with them and
defendant continued to ask her to go with him, but she
refused. Benita's boyfriend told her to come back inside
and she did.FN21
15

1
2
3
4
5
6
7

FN21. On cross-examination, Benita testified
that she went to Easton with defendant and her
boyfriend on March 30. She knew the police were
looking for her. She went with defendant because
her boyfriend was with her.
At 7:31 p.m., Benita received a text message from
defendant. He said, “[M]y dog, answer da phone. Hella
important. Number 007.” He had sent her many other
messages and he kept calling her, but she did not want to
talk to him and she refused to answer.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

At about 11:30 p.m., a woman walking in her neighborhood
saw an SUV parked behind a small red Geo. Defendant and
two other men in dark clothing were standing by the red
Geo. They poured gas over the red Geo, set it on fire, and
drove away. The woman had previously seen defendant and a
neighbor pushing the red Geo into the neighbor's back
yard. A few days after the car fire, the neighbor
threatened the woman, telling her to keep her mouth shut
or what had happened to her friend would happen to her.
In the early morning hours of March 30, after learning
that Regina's car had just been burned, the detective
began actively pursuing defendant. Later in the day, he
also started looking for Hernandez.
On April 1, at about 8:00 p.m., undercover officers
observed defendant walking with a limp and an obvious
bulge in his clothing. They watched him place a .22–
caliber rifle, containing a loaded magazine of nine live
cartridges, behind a gas station and quickly walk into an
adjacent fast food restaurant, where the officers
apprehended him. Hernandez and Verdugo were not with him.
Defendant was carrying keys to the SUV, which was parked
nearby. The SUV's license plates were covered with Auto
Maxx paper plates. Defendant was also carrying a cell
phone, a red bandana, and some papers, one of which was
signed by “Little Demonologist.” When the detective, who
was present at the scene, picked up defendant's cell phone
and looked at it, he immediately saw a “wallpaper”
(background) photograph displayed on the phone's face. It
was a photograph of a male wearing a red hat down to his
eyebrows, a red bandana over his face (revealing only his
eyes), and red clothing.FN22 When the detective examined
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

the contacts in defendant's cell phone, he found someone
referred to as “Mellow Bonded 007,” with a number the
detective knew was Hernandez's number, even though it was
registered to someone else.
FN22. The detective testified the male in the
photograph was wearing red clothing, but it
appears to us he was wearing a shirt that was
predominantly light blue.
The SUV contained five live .22–caliber cartridges and six
expended .22–caliber cartridge casings. The criminologist
later determined that four of the six expended .22–caliber
casings had been fired from defendant's rifle. The others
were inconclusive. The SUV's glove compartment contained
several CD's, four of which had Regina's name written on
them.FN23 Behind the seat was Regina's daughter's toy.
FN23. Regina's sister testified that Regina
always signed her name on her things.
When the police searched Hernandez's bedroom, they found a
samurai-type sword in a case and a CD case between two
mattresses on the floor. They also found CD's and a CD
case, all with Regina's name on them.
On April 5, at about 4:00 p.m., while walking down the
street with a friend, Benita was arrested and taken to the
police department. She was arrested on outstanding
warrants for probation violations, but the police wanted
to question her about the murder.FN24 Benita had been
running from the police, especially since she found out
Regina had been killed. As Benita walked to the interview
room in the police station, she saw Hernandez in a holding
cell, and she became afraid for her safety. She decided to
lie to the officers.
FN24. On cross-examination, Benita testified
that she had failed to drug test since November
2007 and she was trying to avoid contact with
law enforcement.
The detective walking with Benita to the interview room
noticed her startled look when she saw Hernandez. Her eyes
widened and she looked like a deer caught in headlights.
She took a step to the side and the detective told her to
keep walking. During the subsequent interview, Benita was
17

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

soft spoken and not overly emotional. She seemed curious
and inquisitive. At first, Benita's story did not
correspond with what the detective knew about the crime.
When he confronted her with the disparities, she told him
she was afraid to tell the truth. Her demeanor changed and
she started to sob. The detective reassured her. She said
she wanted to “wipe the slate clean.”
The detective testified that, about 30 hours before Regina
was shot (i.e., at about 9:40 p.m. on March 27) defendant
left someone a voicemail message (the parties stipulated
it was not left for either Hernandez or Verdugo). The
detective recognized defendant's voice. In the message,
defendant said, “Aye Bulldog man. [¶] ... [¶] I been cup
caking with some little hoe ass beezee ... nigga ..., you
know what I mean? [¶] ... [¶] Hit me up boy, Little D.” At
this point, a female voice could be heard in the
background. Then defendant said, “Lay down this ... hit me
up boy. [¶] ... [¶] I need the strap at least, man.” The
detective testified that the term “strap” meant a firearm
or gun.
Also on March 27, defendant left a message for “Mellow” on
a cell phone registered to someone named Dominguez Perez.
The cell phone contained seven voicemail messages that
mentioned the name “Mellow.”
The pathologist who conducted the autopsy of Regina's body
found four gunshot wounds: a grazing wound on her upper
right arm, a wound through her right thigh, a wound near
her vagina, and a wound to her right hip. The bullet that
caused the wound to her hip injured her iliac artery and
vein, and caused her to bleed to death. On Regina's hands,
some of her acrylic nails were missing. Regina had no
injuries consistent with choking.
Benita testified that she was afraid of defendant because
he was a murderer and because he had threatened her in
jail. He told her if she went to court and said anything
about what happened that night that “he was going to make
sure he fuck[ed her] too.” To Benita, this meant someone
would kill her. She heard him say this through the sink
pipes in jail, which was called the “jail Internet .” She
recognized his voice, but she asked, “Who is this?” and he
identified himself by his nickname. He told her that she
owed it to him to try to save him because he had saved her
when Hernandez wanted to take her to the mountains and
18

1
2
3
4
5
6
7
8
9
10

kill her. Benita was afraid defendant could get someone to
kill her in jail. She found out he was getting copies of
the police report and was mailing them to someone. At
first, she was afraid to report defendant's threats to the
police. She was afraid of Hernandez because of the way he
had laughed when defendant said he had kicked Regina after
shooting her.FN25 Later, the officers promised Benita that
defendant and Hernandez would not be able to hurt her.
FN25. On cross-examination, Benita admitted
writing one letter to Hernandez and one letter
to Verdugo after the crime, but she denied
writing to defendant. She examined certain
letters and denied writing them. She denied ever
calling herself “Bonita.”

11

On cross-examination, Benita testified that Gabriel and
her sister, Heather, dated after Regina was killed.

12

Defense

13
14
15
16
17

Benita's boyfriend testified that he had received many
letters from Benita while he was in jail for five months.
The boyfriend was familiar with Benita's handwriting and
he identified one of the letters she wrote him. He
testified that Benita's nickname was “Cute,” and she
commonly referred to herself as “Bonita.” In the letter,
she referred to him as “Moko,” which was his nickname. He
testified that he had met defendant only once.

18
19
20
21
22
23
24
25
26
27
28

On cross-examination, the boyfriend testified he had
always known Benita to spell her name “Bonita”; he had
never seen her spell her name “Benita.” The boyfriend had
met defendant, but he did not remember a time when
defendant came to his apartment and met with him and
Benita toward the end of March. Similarly, the boyfriend
did not remember defendant wanting to take Benita to the
mountains. He also did not remember Benita being upset
during that conversation. The boyfriend did not remember
defendant ever coming to his apartment. He did not
remember defendant giving him and Benita a ride to Easton.
He had never been to Easton. The boyfriend did remember
that Benita lived with him in his apartment, but he
explained he was always high on methamphetamine and he did
not keep track of the months. Benita quit living with him
when she got in trouble with the law and could not stay
around.
19

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

The boyfriend did remember that, not long before Benita
got into trouble, defendant had dropped her off at the
apartment and walked her up to the apartment door.
The boyfriend testified that he did not want to testify
because the matter was none of his business and he did not
want anything to do with it. He had no concerns about
testifying; he just did not want to be there.
On recross-examination, the boyfriend did not remember
telling the defense investigator that Benita had come home
scared late one night, and he denied telling him that the
next day defendant came by the apartment to talk to
Benita. The boyfriend did not remember telling the
investigator that defendant wanted to talk to Benita alone
but the boyfriend would not allow it. The boyfriend denied
knowing who “Little Demon” was; he had never heard that
nickname before.
Larry Stewart, a forensic scientist and handwriting
expert, testified that he had reviewed certain handwritten
letters. He opined that they were all written by the same
person.

15
16
17
18
19
20

Rebuttal
The defense investigator testified that the boyfriend did
in fact tell him that Benita came home late one night and
was scared when she got home. The boyfriend also told the
investigator that the next day defendant came by the
apartment and wanted to talk to Benita alone, but the
boyfriend would not allow it.

21 People v. Ortega, 2011 WL 1449538, at *2-*10.
22
23
24
25
26

III.

Admission of Petitioner’s Juvenile Adjudication

Petitioner argues that it rendered his trial unfair and a
violation of his constitutional rights to permit introduction of his
prior juvenile robbery adjudication involving an unrelated theft of

27 a play station without the use of force, as a consequence of
28 questioning Gabriel Alvarado about his past relationship and conduct
20

1 with the victim.

Petitioner also argues it was inadmissible as

2 character evidence under state law
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

(Pet., doc. 1 at 4, 19-21;

trav., doc. 27, 13-14.)
A.

Standard of Decision and Scope of Review

Title 28 U.S.C. § 2254 provides in pertinent part:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
Clearly established federal law refers to the holdings, as

18 opposed to the dicta, of the decisions of the Supreme Court as of
19 the time of the relevant state court decision.

Cullen v.

20 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
21

Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,

22
23
24

412 (2000).
A state court’s decision contravenes clearly established

25 Supreme Court precedent if it reaches a legal conclusion opposite
26 to, or substantially different from, the Supreme Court's or
27 concludes differently on a materially indistinguishable set of
28
facts. Williams v. Taylor, 529 U.S. at 405-06. The state court
21

1 need not have cited Supreme Court precedent or have been aware of
2 it, "so long as neither the reasoning nor the result of the state3
4
5
6

court decision contradicts [it]."
(2002).

Early v. Packer, 537 U.S. 3, 8

A state court unreasonably applies clearly established

federal law if it either 1) correctly identifies the governing rule

7 but applies it to a new set of facts in an objectively unreasonable
8 manner, or 2) extends or fails to extend a clearly established legal
9 principle to a new context in an objectively unreasonable manner.
10
11
12
13

Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see,
Williams, 529 U.S. at 407.

An application of clearly established

federal law is unreasonable only if it is objectively unreasonable;

14 an incorrect or inaccurate application is not necessarily
15 unreasonable.

Williams, 529 U.S. at 410.

A state court’s

16 determination that a claim lacks merit precludes federal habeas
17
relief as long as it is possible that fairminded jurists could
18
disagree on the correctness of the state court’s decision.
19
20 Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even
21 a strong case for relief does not render the state court’s
22 conclusions unreasonable.
23
24
25
26

Id.

state prisoner must show that the state court’s ruling on a claim
was “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility

27 for fairminded disagreement.”
28

To obtain federal habeas relief, a

Id. at 786-87.

The standards set by § 2254(d) are “highly deferential
22

1 standard[s] for evaluating state-court rulings” which require that
2 state court decisions be given the benefit of the doubt, and the
3
4
5
6

Petitioner bear the burden of proof.
S.Ct. at 1398.

Cullen v. Pinholster, 131

Habeas relief is not appropriate unless each ground

supporting the state court decision is examined and found to be

7 unreasonable under the AEDPA.
8 S.Ct. 1195, 1199 (2012).

Wetzel v. Lambert, -–U.S.--, 132

The deferential standard of § 2254(d)

9 applies only to claims the state court resolved on the merits; de
10
11
12
13

novo review applies to claims that have not been adjudicated on the
merits.

Cone v. Bell, 556 U.S. 449, 472 (2009).

In assessing under section 2254(d)(1) whether the state court’s

14 legal conclusion was contrary to or an unreasonable application of
15 federal law, “review... is limited to the record that was before the
16 state court that adjudicated the claim on the merits.” Cullen v.
17
Pinholster, 131 S.Ct. at 1398. Evidence introduced in federal court
18
has no bearing on review pursuant to § 2254(d)(1). Id. at 1400.
19
Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas
20
21 proceeding brought by a person in custody pursuant to a judgment of
22 a state court, a determination of a factual issue made by a state
23
24
25
26

court shall be presumed to be correct; the petitioner has the burden
of producing clear and convincing evidence to rebut the presumption
of correctness.

A state court decision on the merits based on a

27 factual determination will not be overturned on factual grounds
28 unless it was objectively unreasonable in light of the evidence
23

1 presented in the state proceedings.
2 322, 340 (2003).
3
4
5
6

Miller-El v. Cockrell, 537 U.S.

For relief to be granted, a federal habeas court

must find that the trial court’s factual determination was such that
a reasonable fact finder could not have made the finding; that
reasonable minds might disagree with the determination or have a

7 basis to question the finding is not sufficient.

Rice v. Collins,

8 546 U.S. 333, 340-42 (2006).
9
10
11
12
13

To conclude that a state court finding is unsupported by
substantial evidence, a federal habeas court must be convinced that
an appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is supported

14 by the record.
15 2004).

Taylor v. Maddox, 366 F.3d

992, 1000 (9th ir.

To determine that a state court’s fact finding process is

16 defective in some material way or non-existent, a federal habeas
17
court must be satisfied that any appellate court to whom the defect
18
is pointed out would be unreasonable in holding that the state
19
20 court’s fact finding process was adequate. Id.
21

With respect to each claim raised by a petitioner, the last

22 reasoned decision must be identified to analyze the state court
23
24
25
26

decision pursuant to 28 U.S.C. § 2254(d)(1).

Barker v. Fleming, 423

F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107,
1112-13 (9th Cir. 2003).

Here, the last reasoned decision on

27 Petitioner’s claims was the decision of the CCA, which issued after
28 remand from the California Supreme Court (CSC) and was filed on
24

1 April 15, 2011. (LD 9.)
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

B.

The State Court’s Decision

The decision of the CCA on this issue is as follows:
I. Evidence of Defendant's Prior Robbery Adjudication
At trial, the parties stipulated that on April 26, 2002,
defendant and two cohorts drove to the house of a minor.
Defendant and one cohort entered the house. While the
cohort tried to distract the minor, defendant took a video
gaming system. They left the house and drove away in the
waiting car. Defendant was charged as a juvenile, and
admitted to committing a robbery in violation of section
211.
Defendant contends the trial court erred by allowing the
prosecution to introduce evidence of his prior robbery
adjudication after he introduced evidence of Gabriel's
prior misdemeanor convictions for spousal abuse and
receiving stolen property. Defendant argues the court
committed various evidentiary errors surrounding the
admission of the prior robbery adjudication, but we
conclude any error in the admission of the evidence was
harmless.
First, the evidence that defendant robbed and killed
Regina was absolutely overwhelming. Defendant entered
Regina's apartment; defendant told Benita he wanted to rob
Regina; defendant shot Regina, demanded her property, and
looked through her purse; defendant told Gabriel he wanted
to kill Regina because of a bad drug deal; defendant shot
Regina three more times when he was alone with her;
defendant left Regina's apartment with his rifle and
Regina's purse; defendant contacted Benita through the
night, then admitted to her in the morning that he thought
he had killed Regina; defendant and the neighbor pushed
Regina's car into the neighbor's back yard; defendant and
two other men set Regina's car on fire; the neighbor
threatened the woman who witnessed the burning of the car;
defendant disposed of a rifle; both the crime scene and
defendant's SUV contained expended cartridges that had
been fired by the rifle; defendant's SUV contained
Regina's CD's and Regina's daughter's toy; and defendant
threatened Benita when they were both in jail. In light of
this powerful evidence, we are hard-pressed to imagine an
25

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

evidentiary error that could have prejudiced defendant.
Certainly this was not one of them. Accordingly, the
overwhelming evidence of defendant's guilt convinces us
any error in the admission of his prior robbery
adjudication was harmless under any standard. (People v.
Watson (1956) 46 Cal.2d 818, 836; Chapman v. California
(1967) 386 U.S. 18, 24.)
Second, we also note that defendant's own defense
portrayed him as a thief who was not particularly bright.
Defense counsel FN26 relied upon defendant's status as a
thief to explain why, after the murder, he possessed the
murder weapon and Regina's property (and why he regularly
drove a stolen vehicle). Defense counsel told the jurors
in his opening statement that they would hear evidence
suggesting that defendant and his cohorts went to Regina's
apartment after the murder and did what thieves do—they
stole her property and took the murder weapon that someone
(the real murderer) had left behind. Defense counsel
stated:
FN26. Our reference to “defense counsel” is to
defendant's (not Hernandez's or Verdugo's) trial
counsel.

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

“[Defendant] is not a[n] upstanding citizen. I'm
not here to try to suggest to you that
[defendant] is anything more than a petty thief,
but that's what he is. He's a thief. He steals
cars. That's what he does. That's what he was
doing that night when he was called over to that
house many times by [Benita] to help her clean
up her mess. [¶] You're going to hear evidence
to that suggestion that [defendant] and these
gentlemen came over after the murder not aware
of what happened in that house. They saw an
opportunity to do what they do which is to be
thieves, take some of her property, see a gun
that's left there. They take those items and
they leave. [¶] ... [¶] Frankly, it wasn't a
difficult proposition to get these three
gentlemen over to that apartment that evening,
once they saw an opportunity to take property.
[T]hey have property of the victim, not because
they committed murder but because they saw an
opportunity to take property.... If you pulled

28
26

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

the trigger, you would have known. You would
have never taken the property.”
Defense counsel concluded:
“What happened after the crime, it is what it
is. [Defendant] made tremendous mistakes that
assisted [Benita] in her attempts to put the
blame off on somebody else. I did refer to these
guys at some level as sort of the Keystone Cops.
They come bumbling into a scene. They take
property. They're thieves, and they leave, then
they realize the next day what they just got
themselves into.”
In closing argument, defense counsel reiterated:
“I told you in opening statement [defendant],
he's a thief. I'm not going to sit here and tell
you [defendant] is an angel. I'm not going to
tell you [defendant] is the best citizen that's
ever walked our planet. I'm not here to pull the
wool over everybody['s] eyes. He's not a
murderer.”

15
16
17
18
19

As this argument reveals, defendant's defense theory
depended on his history as a thief. In light of the
defense's portrayal of defendant as a thief, admission of
evidence of his prior robbery adjudication for taking a
video gaming system was not prejudicial.

25

Third, the court's evidentiary decisions did not prevent
defendant and Hernandez from presenting a third party
culpability defense. In defense counsel's opening
statement, he set out the theory, suggesting that although
Gabriel and Benita claimed to be innocent bystanders, they
were in fact responsible for the murder. Defense counsel
explained that Gabriel had been convicted of domestic
violence; that he and Regina had a difficult relationship;
and that he and Regina obviously engaged in a struggle
before her death, evidenced by his scratches and her
missing fingernails.

26

Similarly, Hernandez's defense counsel stated:

20
21
22
23
24

27
28

“Now, Gabriel [ ] had had a previous
relationship with the victim, Regina Morales. A
27

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

previous incendiary, violent, contentious,
disputatious, relationship with her. A
relationship that was so violent that three
years before he was charged with a felony
spousal abuse, a felony assault which was
reduced to a misdemeanor. [¶] Now, it may come
out in this trial there is something called
spousal abuse or abuse of a partner, something
like that. It was a violent assault on her three
years before in which he grabbed her and tried
to smother her face, that sort of thing. There
was a restraining order preventing Gabriel [ ],
because of the violence he committed on her
previously.”
Hernandez's counsel noted that Gabriel had a prior
conviction for domestic violence and for receiving stolen
property, then stated:
“Now, there is going to be testimony that will
be elicited through various witnesses that not
only Gabriel [ ] having an opportunity and a
potential motive for killing Regina Morales, but
also Benita [ ], the individual who is given the
ten year deal, not the lifetime sentence, but
the ten year—ten year deal by the prosecution,
that she had a motive herself for retaliating
against the victim, Regina Morales. [¶] ... [¶]
Well, I think the evidence is going to show that
Benita [ ] was using a heavy amount of drugs,
was homeless, wanted someplace to go, had no
money and that Regina Morales wasn't going to
let her come back. [¶] Also, ... Heather [ ] had
been staying with the victim but Benita['s]
younger sister Heather was kicked out of the
victim's house because Heather stole money and
stole drugs from Regina Morales. So, there is a
motive of retaliation against Regina Morales for
not letting Benita [ ] move back in and for
having ejected the younger sister from the
apartment.”
Then, during the presentation of evidence, the defense
introduced evidence of Gabriel's past violence toward
Regina; Benita's dislike for Gabriel because of his
violent treatment of Regina; Gabriel's ongoing sexual
relationship with Regina despite her refusal to resume a
28

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

serious relationship with him; her current relationship
with another man; and Gabriel's past conviction for
violence against her. This evidence supported the theory
that Gabriel was a jealous lover who was dissatisfied with
his relationship with Regina and motivated to harm her.
The evidence also suggested a rift between Benita's
sister, Heather, and Regina that might have created a
motive for retaliation in Benita.
Furthermore, Gabriel's and Regina's credibility was
thoroughly impeached. They were exposed as liars and
unsavory characters. They both had criminal histories and
they both used drugs and associated with drug users and
drug dealers. Benita socialized with criminals who carried
weapons and stole cars. She participated in the crimes
against Regina, a woman she professed to love as a mother.
Benita and Gabriel both initially lied to the police, and
Benita testified against her comrades after making a deal
with the prosecution.
During closing argument, defense counsel argued:
“We were relying upon an admitted perjurer
[Benita] for her version of the facts as to what
happened that night and not to mention the
inconsistencies I think were fairly obvious
between what she claimed happened and what
Gabriel [ ] said happened. [¶] Ladies and
gentlemen, again, we've made suggestions in my
opening statements and perhaps Gabriel [ ] had
motives and opportunities to commit the
homicide. Perhaps it was Benita [ ] had the
opportunity and motive. [¶] Let's not forget
Gabriel had a relationship with Regina and a
restraining order and past incidents of
significant violence....”
Later, defense counsel argued:
“Again, ladies and gentlemen, Benita [ ] took
the opportunity to protect whomever the real
murderers were, whether it was herself or
whether Gabriel [ ] was involved, I don't know
but she's not being honest. [¶] ... [¶] And
getting to Gabriel [ ], I say things are
inconsistent, not words but actions. Why is
Gabriel [ ] alive? That doesn't make any sense,
29

ladies and gentlemen. If people are going to go
in and brutally kill somebody, leave a witness
there alive, then leave Benita [ ] alive? If you
kill one person, why not kill them all? Well,
maybe there are reasons that Gabriel and Benita
were still alive. Perhaps they were in on
whomever was ripping her off.”

1
2
3
4
5
6
7

Defendant's portrayal of himself as a thief and his
ability to present a third party culpability defense
further confirm that he was not prejudiced by admission of
his prior robbery adjudication.

8
9

People v. Ortega, 2011 WL 1449538, at *10-*13.
C.

10
11

State Law Evidentiary Claims

To the extent Petitioner argues that admission of the

12 adjudication was contrary to state evidentiary law, Petitioner’s
13
14

claim is not cognizable in this proceeding.

A federal court

reviewing a habeas petition pursuant to 28 U.S.C. § 2254 has no

15
16

authority to review alleged violations of a state’s evidentiary

17 rules.

Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).

18 Because federal habeas relief is available to state prisoners only
19 to correct violations of the United States Constitution, federal
20

laws, or treaties of the United States, federal habeas relief is not

21
22
23

available to retry a state issue that does not rise to the level of
a federal constitutional violation.

28 U.S.C. § 2254(a); Wilson v.

24 Corcoran, 131 S.Ct. at 16; Estelle v. McGuire, 502 U.S. 62, 67-68
25 (1991).

In a habeas corpus proceeding, this Court is bound by the

26 California Supreme Court’s interpretation and application of
27
California law unless it is determined that the interpretation is
28
30

1 untenable or a veiled attempt to avoid review of federal questions.
2 Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).
3
4
5
6

Here, there is no indication that the state court rulings were
associated with an attempt to avoid federal question review.
Accordingly, this Court is bound by the California courts’

7 application of state evidentiary law.

Any claim of misapplication

8 or misinterpretation of that law is not cognizable in this
9 proceeding and is subject to dismissal.
10
11
12
13

D.

Due Process Violation

The introduction of evidence alleged to be prejudicial violates
the Due Process Clause if the evidence was so arbitrary or

14 prejudicial that its admission rendered the trial fundamentally
15 unfair and violated fundamental conceptions of justice.

Perry v.

16 New Hampshire, 132 S.Ct. 716, 723 (2012); Estelle v. McGuire, 502
17
U.S. at 67-69; Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir.
18
2009).
19
To be entitled to relief in habeas corpus proceedings, a
20
21 petitioner generally must show that a trial error resulted in actual
22 prejudice.
23
24
25
26

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

Constitutional trial errors occurring during the presentation of
evidence to the jury are generally subject to harmless error
analysis, which is tested on habeas corpus review by determining

27 whether any error had a substantial and injurious effect or
28 influence in determining the jury=s verdict.
31

Id. (applying the

1 standard to habeas review of Doyle violations concerning
2 introduction of a defendant=s silence after Miranda warnings).
3
4
5
6

However, a claim that the Due Process Clause was violated by the
admission of evidence alleged to have been prejudicial involves
determining whether the evidence was so arbitrary or prejudicial

7 that its admission rendered the trial fundamentally unfair and
8 violated fundamental conceptions of justice.

Perry v. New

9 Hampshire, 132 S.Ct. at 723; Estelle v. McGuire, 502 U.S. at 67-69;
10
11
12
13

Holley v. Yarborough, 568 F.3d at 1101.
Here, although the state court did not expressly determine
whether the admission of the evidence constituted constitutional

14 error, the state court nevertheless concluded that the prosecution
15 had shown beyond a reasonable doubt that any constitutional error
16 was harmless. The court referred to multiple standards and cited
17
Chapman v. California, which sets forth a standard for evaluating
18
the harmlessness of constitutional errors. See Chapman v.
19
20 California, 386 U.S. 18, 24 (1967.
21

Arguably there is no clearly established federal law requiring

22 the exclusion of the evidence in question.

Under the AEDPA, even

23 the clearly erroneous admission of evidence may not permit the grant
24 of habeas relief unless forbidden by clearly established federal law
25 as established by the Supreme Court.
26 at 1101.

Holley v. Yarborough, 568 F.3d

The Supreme Court has not yet made a clear ruling that

27 admission of irrelevant or overtly prejudicial evidence constitutes
28 a due process violation sufficient to warrant issuance of the writ.
32

1 See, Estelle, 502 U.S. at 75 n.5; Holley, 568 F.3d at 1101.

Absent

2 such clearly established federal law, it cannot be concluded that a
3 state court’s ruling was contrary to or an unreasonable application
4 of Supreme Court precedent under the AEDPA.

Holley, 568 F.3d at

5 1101 (citing Carey v. Musladin, 549 U.S. 70, 77 (2006)); see also
6 Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006) (denying a
7 due process claim concerning the use of propensity evidence for want
8 of a “clearly established” rule from the Supreme Court); Mejia v.
9 Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008).

An unreasonable

10 application of clearly established federal law under § 2254(d)(1)
11 cannot be premised on an unreasonable failure to extend a governing
12 legal principle to a new context where it should control.
13 Woodall, - U.S. -, 134 S.Ct. 1697, 1706 (2014).

White v.

Therefore, “‘if a

14 habeas court must extend a rationale before it can apply to the
15 facts at hand,’ then by definition the rationale was not ‘clearly
16 established at the time of the state-court decision.’”
17 Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

Id. (quoting

Application of a

18 rule is required only if it is so obvious that a clearly established
19 rule applies to a given set of facts that there could be no
20 fairminded disagreement on the question.

White v. Woodall, 134

21 S.Ct. at 1706.
22

Even if this Court considers more generally whether, in light

23 of all the circumstances, admission of the evidence rendered the
24 proceedings fundamentally unfair, there was no prejudicial denial of
25 due process.

Admission of evidence violates due process only if

26 there are no permissible inferences that a jury may draw from it,
27 and the evidence is of such quality as necessarily prevents a fair
28 trial.

Boyde v. Brown, 404 F.3d 1159, 1172-73 (9th Cir. 2005)
33

1 (quoting Jammal v. Van de Kamp, 926 F.2d 918, 920 (1991)).

Here,

2 Petitioner’s prior robbery conviction was actually consistent with
3 Petitioner’s theory of defense, namely, essentially admitting that
4 the evidence tended to show post-homicide commission of theft and
5 destruction of evidence, but nevertheless denying any participation
6 in the murder.

The prior theft offense was much less violent than

7 the charged offense of murder.

Further, in light of Petitioner’s

8 drug use, gang-related conduct, and what in effect amounts to a
9 defense admission that he engaged in theft and destruction of
10 evidence after the murder, admission of a juvenile adjudication of
11 robbery could not be said to have violated fundamental conceptions
12 of justice or to have rendered the proceedings unfair.
In light of the entire record, including multiple sources of

13

14 evidence of Petitioner’s guilt, any error did not have a substantial
15 and injurious effect or influence in determining the jury=s verdict.
16 Accordingly, it will be recommended that Petitioner’s due process
17 claim concerning admission of the juvenile adjudication be denied.
18

IV.

19

Petitioner alleges he suffered violations of his rights to

20
21
22
23

Limitation of Cross-Examination

confront and cross-examine witnesses, a fair trial, and to present a
defense guaranteed by the Sixth and Fourteenth Amendments when the
defense was prohibited from examining prosecution witnesses with

24 respect to several matters.
25 ///
26 ///
27

///

28
34

A.

1
2
3
4
5
6

Legal Standards
1.

Right to Confrontation and Cross-Examination

The Confrontation Clause of the Sixth Amendment, made binding
on the states by the Fourteenth Amendment, provides that in all
criminal cases, the accused shall enjoy the right to be confronted

7 with the witnesses against him.
8 (1965).

Pointer v. Texas, 380 U.S. 400

The main purpose of confrontation as guaranteed by the

9 Sixth Amendment is to secure the opportunity for cross-examination
10
11
12
13

to permit the opponent of the party presenting a witness to test the
believability of the witness and the truth of his or her testimony
by examining the witness=s story, testing the witness=s perceptions

14 and memory, and impeaching the witness.

Delaware v. Van Arsdall,

15 475 U.S. 673, 678 (1986); Davis v. Alaska, 415 U.S. 308, 316 (1974).
16
17

Even if there is a violation of the right to confrontation,
habeas relief will not be granted unless the error had a substantial

18
19

and injurious effect or influence in determining the jury’s verdict.

20 Jackson v. Brown, 513 F.3d 1057, 1084 (9th Cir. 2008) (citing Brecht
21 v. Abrahamson, 507 U.S. 619, 637 (1993)).
22
23
24
25
26

2.

Fundamental Fairness and Right to Present a Defense

Although state and federal authorities have broad latitude to
establish rules excluding evidence from criminal trials, the Due
Process Clause of the Fourteenth Amendment and the Compulsory

27 Process and Confrontation clauses of the Sixth Amendment guarantee a
28 criminal defendant a meaningful opportunity to present a complete
35

1 defense.

Crane v. Kentucky, 476 U.S. 683, 690 (1986).

It is a

2 fundamental element of due process of law that a defendant has a
3
4
5
6

right to present a defense by compelling the attendance and
presenting the testimony of witnesses.
U.S. 14, 18-19, 23 (1967).

Washington v. Texas, 388

However, a defendant does not have an

7 absolute right to present evidence without reference to its
8 significance or source; the right to present a complete defense is
9 implicated when the evidence the defendant seeks to admit is
10
11
12
13

relevant, material, and vital to the defense.

Id. at 16.

Further,

the exclusion of the evidence must be arbitrary or disproportionate
to the purposes the exclusionary rule is designed to serve.

14 v. South Carolina, 547 U.S. 319, 324-25 (2006).

Holmes

If the mechanical

15 application of a rule that is respected, frequently applied, and
16 otherwise constitutional would defeat the ends of justice, the rule
17
must yield to those ends. Chambers v. Mississippi, 410 U.S. 284,
18
302 (1973).
19
However, well established rules of evidence permit trial judges
20
21 to exclude evidence if its probative value is outweighed by other
22 factors such as unfair prejudice, confusion of the issues, or
23
24
25
26

potential to mislead the jury.
at 326.

Holmes v. South Carolina, 547 U.S.

Thus, it is constitutionally permissible to exclude

evidence that is repetitive, only marginally relevant, or poses an

27 undue risk of harassment, prejudice, or confusion of the issues.
28 Holmes v. South Carolina, 547 U.S. at 326-27.
36

1

In summary, fundamental fairness does not require the admission

2 of all evidence tendered by the defense.
3
4
5
6

Arguably there is no

clearly established federal law setting controlling legal standards
for evaluating discretionary decisions to exclude evidence.

Moses

v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009) (upholding the

7 discretionary exclusion of expert testimony offered by the defense
8 to show a likelihood of victim’s suicide and thus the defendant’s
9 innocence of homicide); Brown v. Horell, 644 F.3d 969, 983 (9th Cir.
10
11
12
13

2011), cert. denied Brown v. Horell, 132 S.Ct. 593 (2011) (upholding
exclusion of expert evidence).

The Supreme Court’s cases have

focused only on whether an evidentiary rule, by its own terms, has

14 violated a defendant's right to present evidence; the cases do not
15 1) squarely address whether a court's exercise of discretion to
16 exclude evidence violates a criminal defendant's constitutional
17
right to present relevant evidence, or 2) clearly establish a
18
controlling legal standard for evaluating discretionary decisions to
19
20 exclude evidence. Id. Therefore, a decision of a state appellate
21 court that a trial court's exercise of discretion to exclude expert
22 testimony did not violate constitutional rights cannot be contrary
23
24
25
26

to, or an unreasonable application of, clearly established Supreme
Court precedent.
Where exclusion of evidence violates a petitioner’s right to

27 present a defense, habeas relief is appropriate only if the
28 constitutional violation resulted in error that was not harmless,
37

1 that is, error that resulted in actual prejudice, or had a
2 substantial and injurious effect or influence in determining the
3
4
5
6

jury’s verdict.

Jackson v. Nevada, 688 F.3d 1091, 1104 (9th Cir.

2012) (citing Fry v. Pliler, 551 U.S. 112, 121-22 (2007) and Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993)).

To consider whether the

7 Brecht standard has been met, a court considers various factors,
8 including but not limited to 1) the importance of the witness’s
9 testimony in the prosecution’s case, 2) whether the testimony was
10
11
12
13

cumulative, 3) the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, 4)
the extent of cross-examination otherwise permitted; and 5) the

14 overall strength of the prosecution’s case.

Merolillo v. Yates, 663

15 F.3d 444, 455 (9th Cir. 2011) (citing Delaware v. Van Arsdall, 475
16 U.S. 673, 684 (1986)).
17
B. Impeachment of Gabriel Alvarado regarding His
18
Prior Misconduct with the Victim
19
20

Petitioner contends he suffered violations of his rights when he
was prohibited from impeaching prosecution witness Gabriel Alvarado

21
22
23

with questions about the misconduct underlying prior misdemeanor
convictions of domestic violence, receiving stolen property, and

24 lying to a law enforcement officer.

Petitioner argues that

25 Alvarado’s prior misconduct with the victim was admissible as a
26 crime of moral turpitude; although the misdemeanor conviction of
27
domestic violence might not have been admissible, the underlying
28
38

1 conduct was admissible for impeachment.

Further, because the

2 evidence had the capacity to raise a reasonable doubt as to guilt,
3
4
5
6

it was admissible as evidence of third-party culpability.
Petitioner argues that the errors of the trial court were
prejudicial in light of the record, which reflects that Alvarado was

7 present at the murder, had been convicted of harming the victim in
8 the past, and bore scratches that could have been inflicted by the
9 victim, who was missing several acrylic fingernails.
10

at 4, 15-19; trav., doc. 27, 12.)

11

The undisputed facts show that significant evidence concerning

12
13

(Pet., doc. 1

Gabriel Alvarado’s misconduct with the victim, including the episode

14 precipitating the prior misdemeanor conviction, was before the jury.
15 Alvarado admitted breaking down a door to get to the victim, holding
16 her down, and putting his hands over her face; he conceded that he
17
repeatedly violated a restraining order as well as the terms of his
18
probation. (8 RT 1312-1314, 1349-51.) Although particular
19
20 questions may have been precluded, the jury was given a
21 significantly detailed history of Alvarado’s abuse of the victim and
22 disobedience of court orders.
23
24
25
26

In view of the extent of the

testimony already in the record, and considering the strength of the
prosecution’s case against Petitioner, any limitation of questioning
in a specific respect did not have a substantial and injurious

27 effect or influence in determining the jury’s verdict.
28 ///
39

1
2
3
4
5
6

C.

Question regarding Testimony of Officer McCarty

Petitioner alleges that his right to cross-examine the
witnesses against him was violated when the trial court prohibited
the defense from cross-examining Alvarado about the testimony of
William McCarty, the first law enforcement officer on the scene,

7 that when the officer arrived, he found Alvarado inside the
8 apartment with the door closed.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1)

(Pet., doc. 1, 4.)

The State Court’s Decision

The pertinent part of the decision of the CCA is as follows:
On cross-examination, Gabriel equivocated about whether he
had been inside or outside Regina's apartment when the
police arrived. First, he testified that he waited outside
Regina's apartment for the police to arrive. Then he said
he thought he waited outside, but he could not remember.
He did not think he was inside the apartment when the
police arrived. He was “pretty sure” he was outside. He
eventually agreed with defense counsel that it was his
testimony that he was not inside when the first officer
arrived. Then defense counsel asked, “And so if [the
officer] would have testified that you were inside and
opened the door, he would be mistaken?” At this point, the
court sustained the prosecutor's speculation objection.
Defendant contends the trial court erred by sustaining the
prosecutor's objection because Gabriel was not improperly
asked to speculate about the officer's state of mind, but
was “merely asked to confirm his own testimony in light of
[the officer's] contrary account of events.”
Assuming, without deciding, defense counsel's question was
proper, we conclude any error in sustaining the objection
was harmless. The evidence established that Gabriel was
distracted when the officers arrived at Regina's apartment
and, at trial, he could not clearly remember whether he
had been inside or outside. An officer testified that
Gabriel was in a state of preoccupation and panic when the
officers arrived—despite defense attempts to portray
Gabriel as high on methamphetamine and more worried about
40

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

his own situation than Regina's survival. Defense counsel
asked the officer about Gabriel's behavior when the
officers arrived: “It seems to you that [Gabriel] was more
interested in telling what his involvement was [on the
telephone] than getting you to [Regina], correct?” The
officer answered, “He just seemed preoccupied.”
Similarly, Hernandez's defense counsel asked the officer
on cross-examination, “[D]id that person seem to be
agitated?” The officer answered, “He seemed preoccupied,
kind of panicked sort of.” Counsel then asked, “Did this
person who answered the door—did he exhibit to you any of
the symptoms of somebody who had been high on meth?” The
officer answered, “I couldn't say one way or the other
because what happened, we have to evaluate someone [for]
more than just a split second. I was only in his presence
for maybe five or six seconds total. That was not
sufficient for me to be able to formulate any sort of
opinion whether he was or not.” Counsel persisted: “But
the individual nevertheless seemed to be somewhat jumpy;
is that right?” The officer responded, “He was
preoccupied, ma‘am. I couldn't tell you if he was—“ at
which point counsel changed the subject.
We see no probability whatsoever that defendant was harmed
by defense counsel's inability to ask Gabriel whether the
officer would be lying if he said Gabriel was inside the
apartment when the officers arrived. Considering the
evidence regarding Gabriel's uncertain memory and his
state of mind at the time of the incident, we see little
value to the precluded line of questioning. Moreover, we
again stress that the evidence against defendant was
overwhelming. Any error was harmless under any standard.
(People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v.
California, supra, 386 U.S. at p. 24.)

22 People v. Ortega, 2011 WL 1449538, at *13-*14.
23
24
25
26

2.

Analysis

Review of the trial transcript shows that Gabriel Alvarado was
subject to substantial cross-examination concerning his location

27 when law enforcement arrived.

He admitted he initially lied to

28 police regarding his location, his knowledge of the murder, and his
41

1 relationships with various people involved in the crime because he
2 was frightened of retribution and did not want to precipitate a
3
4
5
6

parole violation.

His failure to recall at trial information that

he had reported to law enforcement at the time of the crime was also
brought out in cross-examination.

7 1303, 1324-28, 1344-50.)

(8 RT 1251, 1268, 1271-85, 1289-

He also admitted that he had been a

8 methamphetamine addict at the time of the crime.

(Id. at 1298-99,

9 1316-17, 1322.)
10
11
12
13

In view of the evidence before the jury and the strength of the
prosecution’s case against Petitioner, any limitation of counsel’s
questioning of Alvarado regarding Officer McCarty’s testimony did

14 not have a substantial or injurious effect or influence in
15 determining the jury’s verdict.

Accordingly, it will be recommended

16 that Petitioner’s claim concerning the limitation on counsel’s
17
question regarding Alvarado’s understanding of McCarty’s testimony
18
be denied.
19
D. Examination of Gabriel Alvarado regarding Heather
20
21

Petitioner contends he suffered a prejudicial violation of his

22 right to confrontation and cross-examination when the trial court
23
24
25
26

sustained objections to defense counsel’s questions to Alvarado
concerning Benita Ochoa’s statement regarding Alvarado’s
relationship with Benita’s sister, Heather.

Petitioner contends

27 that a relationship between Alvarado and Benita’s sister indicated a
28 potential shared interest or bias on the part of Benita and Alvarado
42

1 as well as potential motives for homicide that Alvarado might harbor
2 (revenge for the victim’s having thrown Heather out of her
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

apartment, a desire to end the previous relationship with the
victim, or theft of drugs or money).
1.

(Pet., doc. 1, 26-27.)

The State Court’s Decision

The pertinent part of the CCA’s decision is as follows:
B. Relationship With Heather
Defendant also contends the trial court erred by
sustaining the prosecutor's objection to defendant's
cross-examination of Gabriel regarding whether he dated
Benita's sister, Heather, after Regina's death (as Benita
had testified). Defense counsel asked Gabriel, “Again, you
haven't dated Heather [ ] since?” Gabriel responded,
“Never.” Defense counsel asked, “You don't have any reason
to believe why Benita would say that, do you?” At this
point, the court sustained the prosecutor's objection. The
court itself identified the grounds as improper
impeachment and calling for speculation.
Defendant argues that this sustained objection prevented
him from exploring a motive for Gabriel to kill Regina.
Heather had stolen drugs from Regina, causing Regina to
eject her from the apartment. If Gabriel had been
romantically involved with Heather, he might have shared
her motive for revenge against Regina.
Again, assuming that defendant's counsel should have been
allowed to ask Gabriel why Benita would lie about his
relationship with Heather, we find any error harmless. The
defense successfully generated evidence of motive in both
Gabriel and Benita. As for Gabriel's motive to kill
Regina, most of the evidence revolved around Gabriel's
long-standing love for Regina, now unreturned, and his
currently unfulfilling relationship with her. In our
opinion, evidence of Gabriel's romantic interest in
Heather, although an alternative motive, seemed to operate
in direct contradiction to the strongest and most
plausible defense theory. Thus, we believe that Gabriel's
opinion of why Benita would lie about his relationship
with Heather would have added little to the defense. And,
43

1
2
3
4
5
6

as we have explained, the evidence against defendant was
overwhelming. For these reasons, we conclude that any
error in preventing Gabriel from giving his opinion on why
Benita would lie about his relationship with Heather was
harmless under any standard. (People v. Watson, supra, 46
Cal.2d at p. 836; Chapman v. California, supra, 386 U.S.
at p. 24.)
People v. Ortega, 2011 WL 1449538, at *14-*15.
2.

7
8

Analysis

Although counsel’s question sought to elicit arguably relevant

9 information, the state court reasonably concluded on the basis of
10
11
12
13

record evidence that any erroneous prohibition of this specific
question was harmless in view of the extensive independent evidence
warranting an inference that Alvarado had a motive to kill the

14 victim, including the violent history they shared, Alvarado’s
15 disappointment with the limited nature of his relationship with the
16 victim, and his frustration over the victim’s involvement with
17
another man. The jury was also informed of the history between the
18
victim and Benita and Heather. Under the circumstances, limiting
19
20 the specific probe of Alvarado’s state of mind regarding Benita’s
21 motive to prevaricate did not have a substantial and injurious
22 effect or influence in determining the jury’s verdict.
23
24
25

E.

Cross-Examination regarding Ochoa’s Pending
Criminal Charge

Petitioner argues that he suffered a denial of the right to

26 confront and cross-examine essential prosecution witness Benita
27
Ochoa about a new, pending charge of possession of cannabis while in
28
44

1 the county jail.

Petitioner contends the new charge was essential

2 impeachment material because it showed that Ochoa intended to
3
4
5
6

continue to commit felonies, and it reflected directly on her
trustworthiness and truthfulness.

(Pet., doc. 1 at 5, 28-29.)

Petitioner notes that her credibility was questionable, and he

7 highlights the fact that the jury necessarily rejected Ochoa’s
8 testimony implicating alleged co-participants Hernandez and Verdugo
9 because the jury acquitted them.
10
11
12
13
14

1.

(Trav., doc. 27, 16.)

The State Court’s Decision

The decision of the CCA on this issue is as follows:
Defendant next asserts that the trial court erred when it
sustained the prosecutor's objections to defense counsel's
cross-examination of Benita regarding her pending charge
of possessing marijuana in jail.

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

Assuming it was error to preclude this impeachment of
Benita's credibility, any error was harmless. As we have
explained, Benita's credibility had already been
thoroughly tarnished, and she had already been shown to be
a drug abuser. We are confident that her pending charge
for marijuana possession in jail would have come as no
surprise to anyone in the jury, and we believe it could
not have further damaged her credibility in any meaningful
way. Furthermore, evidence provided by sources other than
Benita supported the conclusion that defendant was guilty.
For example, police discovered that defendant left someone
a message about getting a gun; Gabriel witnessed a man
wearing a red hat and a red bandana over his face shoot
Regina and take her property; police determined that the
expended cartridges at the crime scene had been fired by
defendant's rifle; a witness saw defendant and a neighbor
pushing Regina's red Geo into a back yard; the witness saw
defendant and two other men set Regina's red Geo on fire;
police observed defendant disposing of the murder weapon;
the detective observed that defendant's cell phone
wallpaper was a photograph of a male dressed in a red hat
with a red bandana over his face; and police found more
45

expended cartridges fired by defendant's [rifle] and
Regina's personal property in the SUV. Again, any error
was harmless under any standard. (People v. Watson, supra,
46 Cal.2d at p. 836; Chapman v. California, supra, 386
U.S. at p. 24.)

1
2
3
4
5

People v. Ortega, 2011 WL 1449538, at *15.
2.

6

Analysis

The record contained evidence of Benita Ochoa’s inconsistent

7

8 statements, her plea bargain and cooperation with authorities, her
9 drug use, and her callous and disloyal conduct toward the victim on
10
11
12
13

the night of the murder.

Even assuming the discretionary exclusion

of evidence could violate the Due Process Clause, a fairminded
jurist could agree with the CCA that foreclosure of additional

14 examination regarding Ochoa’s unrelated minor drug charge did not
15 significantly impair the otherwise extensive and potentially
16 effective impeachment of Ochoa, and it could not have prejudiced
17
Petitioner, whose guilt was strongly established by multiple,
18
independent sources of evidence. It could reasonably be concluded
19
20 that the state court acted in the interest of imposing reasonable
21 limits on cross-examination.
22
23
24
25
26

The state court’s decision that Petitioner suffered no
prejudice was not contrary to, or an unreasonable application of
clearly established federal law.

Accordingly, it will be

recommended that Petitioner’s various claims concerning limitations

27 on defense cross-examination be denied.
28 ///
46

1

V.

2

Petitioner alleges he suffered a violation of his right to a

3
4
5
6

Admission of Petitioner’s Parole Status

fair trial and to due process protected by the Sixth and Fourteenth
Amendments when the trial court denied a defense motion for a
mistrial after an officer testified to Petitioner’s parole status in

7 violation of an in limine ruling excluding the evidence.

Petitioner

8 contends that the prejudicial error was not cured by the court’s
9 admonishing the jury to disregard the evidence.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(Pet., doc. 1, at

5, 9, 30-32.)
A.

The State Court’s Decision

The decision of the CCA on this issue is as follows:
Defendant contends that the officer's testimony that
defendant stated he was on parole when he was apprehended—
testimony in violation of a pretrial ruling—was
prejudicial error. He claims the trial court erred in
denying his motion for a mistrial, and the court's
admonition to the jury to ignore the testimony about his
parole status could not undo the damage and simply caused
further prejudice.
We again conclude that any error in the trial court's
denial of the mistrial motion was harmless. Even if the
jurors could not wipe the brief testimony from their
minds, their knowledge of defendant's parole status could
not have prejudiced defendant. His reputation as a lawabiding citizen was nonexistent, and the evidence pointed
overwhelmingly to his guilt. The evidence established him
as a gun-toting car thief who shot a woman in cold blood
as retribution for a bad drug deal, stole her car and her
CD's, then set her car on fire. Even defense counsel
repeatedly portrayed defendant as an unintelligent car
thief. Defendant's prior criminality and parole status
could not have surprised the jurors. We cannot conceive
that this revelation made defendant look any worse than he
did already. Under these circumstances, we have no doubt
that the incidental remark about his parole status was
47

1
2
3
4
5

harmless. (People v. Watson, supra, 46 Cal.2d at p. 836;
Chapman v. California, supra, 386 U.S. at p. 24; see,
e.g., People v. Allen (1978) 77 Cal.App.3d 924, 935
[improper reference to a prior conviction is
nonprejudicial in the light of a record that points
convincingly to guilt]; People v. Harris (1994) 22
Cal.App.4th 1575, 1580–1581 [any error harmless in light
of overwhelming evidence].)

6 People v. Ortega, 2011 WL 1449538, at *16.
7
B. Analysis
8
No Supreme Court precedent has established that the admission
9
10 of evidence can constitute a due process violation sufficient to
11 establish habeas relief.

Holley v. Yarborough, 568 F.3d at 1101.

12 Thus, the state court decision here could not be contrary to, or an
13
14

unreasonable application of, clearly established federal law within
the meaning of § 2254(d)(1).

15
16

Even assuming that pursuant to Supreme Court precedent, the

17 admission of evidence could constitute a violation of the Due
18 Process Clause, the CCA reasonably concluded the evidence was
19 harmless.
20

In light of the overwhelming evidence of Petitioner’s

guilt and the defense’s portrayal of Petitioner as a criminal

21
22
23

offender, testimony that he was on parole at the time of his arrest
could not have had a substantial and injurious effect or influence

24 in determining the jury’s verdict.
25

Petitioner has failed to establish that he is entitled to

26 habeas relief. Accordingly, it will be recommended that
27
Petitioner’s due process claim concerning the admission of his
28
48

1 parole status be denied.
2
3
4
5
6

VI.

Admission of Cell Phone Wallpaper

Petitioner argues that admission of “wallpaper” taken from
Petitioner’s cellular telephone that showed someone wearing a
bandana over the bottom half of his face violated Petitioner’s

7 rights under the Sixth and Fourteenth Amendments because it was not
8 identified as a photograph of him and was prejudicial.

Petitioner

9 argues that the fact that he carried the telephone at the time of
10
11
12
13

his arrest along with the testimony of an officer that the
photograph looked like Petitioner was an insufficient foundation.
Thus, when the prosecutor referred to the image as representing

14 Petitioner in argument, he was in effect vouching or testifying as
15 an unsworn witness.

The prosecutor also argued that the bandana in

16 the wallpaper was the same bandana observed by Alvarado on one of
17
the perpetrators. (Pet., doc. 1 at 6, 33-35; trav., doc. 27, 2918
30.)
19
A. The State Court’s Decision
20
21

The CCA rejected Petitioner’s argument that the evidence lacked

22 a sufficient foundation and was irrelevant.
23
24
25
26

It upheld admission of

the evidence as a proper exercise of discretion.

The state court

reasoned that a photograph may be shown to be a correct reproduction
of what it purports to show through the testimony of anyone who

27 knows the picture correctly depicts what it purports to represent,
28 assisted by other matters, including those which are inherent
49

1 aspects of the picture itself, provided the other matters are
2 reliable and together with the testimony sufficiently disclose the
3
4
5
6

authenticity and genuineness of the photograph.

People v. Ortega,

2011 WL 1449538, at *16-*17.
The issue of the identity of the person depicted in the

7 wallpaper was left to the jury.

The state court reasoned that even

8 if the person depicted was not Petitioner, and even if the time and
9 place and other circumstances of the taking of the photograph were
10
11
12
13

not established, the wallpaper image was nevertheless relevant to
show Petitioner chose to display prominently on the opening screen
of his cell phone an image of a person (possibly himself) dressed in

14 a manner similar to that of the perpetrator of the crimes.

These

15 facts warranted an inference that Petitioner personally related to
16 the image, admired it, and derived satisfaction from both viewing
17
and exhibiting it. This evidence, combined with Petitioner’s having
18
worn a red bandana and having photographed himself at the party, and
19
20 his having carried a red bandana when arrested, supported the
21 inference that he adopted the same style and sometimes wore a red
22 hat and a red bandana over his face, such as during the robbery and
23
24
25
26

killing of the victim.

The state court further concluded, with

citation of both Watson (state court error standard) and Chapman
(standard of harmless error review for a constitutional violation)

27 that “even if the admission of the photograph was error, it was
28 harmless in light of the overwhelming evidence against defendant.”
50

1 People v. Ortega, 2011 WL 1449538, at *17.
2
3
4
5
6

B.

Analysis

To the extent Petitioner complains of the state court’s
application and interpretation of state law, this Court is bound by
the state court’s determinations.

The claim does not warrant relief

7 in this proceeding, and it is subject to dismissal.
8

To the extent no Supreme Court precedent has established that

9 the admission of evidence can constitute a due process violation
10
11
12
13

sufficient to warrant habeas relief, the CCA’s decision could not
have been contrary to, or an unreasonable application of, clearly
established federal law within the meaning of § 2254(d)(1).

See,

14 Holley v. Yarborough, 568 F.3d at 1101.
15

The state court reasonably decided that if there had been any

16 error, it was harmless because of the evidence of Petitioner’s
17
guilt. The admission of the cell phone wallpaper could not have had
18
a substantial and injurious effect or influence in determining the
19
20 jury’s verdict. Accordingly, it will be recommended that
21 Petitioner’s due process claim concerning the admission of the cell
22 phone wallpaper be denied.
23
24
25
26

VII.

Cumulative Error

Petitioner alleges the trial court’s cumulative errors violated
his right to due process of law guaranteed by the Sixth and

27 Fourteenth Amendments.

Petitioner contends the jury was biased

28 against Petitioner because of the unfair limitations on impeachment
51

1 of the critical prosecution witnesses, the improper admission of
2 Petitioner’s prior juvenile adjudication, and the prosecutor’s
3
4
5
6

argument regarding the cell phone wallpaper.

Petitioner argues the

length of jury deliberations (two full days and two partial days),
the jury’s requests for rereading of the testimony of Alvarado and

7 Ochoa, and the partial verdicts (the acquittal of Verdugo and
8 acquittal of Hernandez of the murder charge) demonstrate that it was
9 a close case, and thus the numerous errors of the trial court were
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

prejudicial.
A.

(Pet., doc. 1 at 6, 36-39.)
The State Court’s Decision

The decision of the CCA is as follows:
Next, defendant contends the cumulative impact of these
purported errors denied him a fair trial and due process.
He argues that the case was a close one, evidenced by the
jurors' lengthy deliberations (more than two days),
testimony readbacks, and lighter verdicts against
Hernandez and Verdugo.
As to each contention, however, we have found either no
error or no prejudice. Whether defendant's contentions are
considered individually or cumulatively, he was not
deprived of due process or his right to a fair trial.
Furthermore, this was not a close case against defendant;
the evidence was overwhelming, even if the witnesses were
not ideal. As we have “‘either rejected on the merits
defendant's claims of error or have found any assumed
errors to be nonprejudicial[,]’” we reach the same
conclusion with respect to the cumulative effect of any
purported errors. (People v. Cole (2004) 33 Cal.4th 1158,
1235–1236; People v. Rogers (2009) 46 Cal.4th 1136, 1181.)

26 People v. Ortega, 2011 WL 1449538, at *17.
27
///
28
52

1
2

B.

Analysis

The Supreme Court has clearly established that the combined

3 effect of multiple trial court errors violates due process where it
4 renders the resulting criminal trial fundamentally unfair, even
5 though no single error rises to the level of a constitutional
6 violation or would independently warrant reversal.

Parle v.

7 Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v.
8 Mississippi, 410 U.S. 284, 298, 302-03 (1973)).

Traditional

9 principles of due process provide that cumulative errors warrant
10 habeas relief only where the errors have so infected the trial with
11 unfairness that the resulting conviction denies due process, such as
12 where the combined effect of the errors had a substantial and
13 injurious effect or influence on the jury=s verdict, id. (citing
14 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) and Brecht v.
15 Abrahamson, 507 U.S. 619, 637 (1993)), and where the combined effect
16 of individually harmless errors renders a criminal defense far less
17 persuasive than it might otherwise have been, id. (citing Chambers,
18 410 U.S. at 294, 302-03).
19

In evaluating a due process challenge based on the cumulative

20 effect of multiple trial errors, a reviewing court must determine
21 the relative harm caused by the errors.

If the evidence of guilt is

22 otherwise overwhelming, the errors are considered Aharmless,@ and the
23 conviction will generally be affirmed.
24 at 927-28.

Parle v. Runnels, 505 F.3d

The overall strength of the prosecution=s case must be

25 considered because where the government=s case on a critical element
26 is weak, or where the verdict or conclusion is only weakly supported
27 by the record, it is more likely that trial errors will be
28 prejudicial to the defendant.

Id. at 928.
53

1

Here, in view of the previous analysis of the nature and effect

2 of the errors, and considering them in light of the government’s
3
4
5
6

extremely strong case, a fairminded jurist could agree with the CCA
that Petitioner’s due process rights were not violated because of
the absence of prejudicial unfairness.

Accordingly, it will be

7 recommended that Petitioner’s cumulative error claim be denied.
8

In summary, it will be recommended that the petition for writ

9 of habeas corpus be denied.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

VIII.

Certificate of Appealability

Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the Court of Appeals
from the final order in a habeas proceeding in which the detention
complained of arises out of process issued by a state court.

28

U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003).

A district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.
Habeas Rule 11(a).
A certificate of appealability may issue only if the applicant
makes a substantial showing of the denial of a constitutional right.
' 2253(c)(2).

Under this standard, a petitioner must show that

reasonable jurists could debate whether the petition should have
been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.

Miller-

El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)).

A certificate should issue if the Petitioner

shows that jurists of reason would find it debatable whether: (1)
54

1 the petition states a valid claim of the denial of a constitutional
2 right, and (2) the district court was correct in any procedural
3 ruling.
4

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

5 claims in the habeas petition, generally assesses their merits, and
6 determines whether the resolution was debatable among jurists of
7 reason or wrong.

Id.

An applicant must show more than an absence

8 of frivolity or the existence of mere good faith; however, the
9 applicant need not show that the appeal will succeed.

Miller-El v.

10 Cockrell, 537 U.S. at 338.
11

Here, it does not appear that reasonable jurists could debate

12 whether the petition should have been resolved in a different
13 manner.

Petitioner has not made a substantial showing of the denial

14 of a constitutional right.

Accordingly, it will be recommended that

15 the Court decline to issue a certificate of appealability.
16

IX.

Recommendations

17

In accordance with the foregoing analysis, it is RECOMMENDED

18 that:
19

1)

The petition for writ of habeas corpus be DENIED; and

20

2)

Judgment be ENTERED for Respondent; and

21

3)

The Court DECLINE to issue a certificate of appealability.

22

These findings and recommendations are submitted to the United

23 States District Court Judge assigned to the case, pursuant to the
24 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
25 Rules of Practice for the United States District Court, Eastern
26 District of California.

Within thirty (30) days after being served

27 with a copy, any party may file written objections with the Court
28 and serve a copy on all parties.

Such a document should be
55

1 captioned AObjections to Magistrate Judge=s Findings and
2 Recommendations.@

Replies to the objections shall be served and

3 filed within fourteen (14) days (plus three (3) days if served by
4 mail) after service of the objections.

The Court will then review

5 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
6 The parties are advised that failure to file objections within the
7 specified time may result in the waiver of rights on appeal.
8 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing
9 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
10
11 IT IS SO ORDERED.
12
13

Dated:

March 27, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
56

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
57