Benitez v. Frauenheim
Filing
16
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 1/17/2017 recommending that 1 Petition for Writ of Habeas Corpus be denied with prejudice. Referred to Judge Dale A. Drozd; Objections to F&R due by 2/21/2017. (Lundstrom, T)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10
11
12
Case No. 1:15-cv-00091 DAD MJS (HC)
CESARIO G. BENITEZ,
13
FINDINGS AND RECOMMENDATION
Petitioner, REGARDING PETITION FOR WRIT OF
HABEAS CORPUS
v.
14
15
16
SCOTT FRAUENHEIM, Warden,
Respondent.
17
18
19
20
21
22
23
24
25
26
27
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Jeffrey White of the
office of the California Attorney General. Respondent declined magistrate judge
jurisdiction. (ECF No. 8.)
I.
Procedural Background
Petitioner is currently in the custody of the California Department of Corrections
pursuant to a judgment of the Superior Court of California, County of Fresno, following
his conviction by jury trial on February 3, 2012, for murder with enhancements for use of
a firearm in commission of the offense. (Clerk's Tr. at 306-07.) On March 6, 2012,
28
1
1
Petitioner was sentenced to an indeterminate prison term of fifty (50) years to life. (Id.)
2
Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate
3
District on November 20, 2012. (Lodged Doc. 1.) On March 4, 2014, the appellate court
4
affirmed the conviction. (Lodged Doc. 4.) Petitioner sought review by the California
5
Supreme Court on April 15, 2014. (Lodged Doc. 5.) The petition for review was denied
6
on June 12, 2014. (Lodged Doc. 6.)
7
Petitioner filed his federal habeas petition on January 20, 2015. (Pet., ECF No. 1.)
8
Petitioner raised the following four claims for relief: (1) that the trial court erred in
9
allowing evidence of his immigration status; (2) that the court erred in allowing propensity
10
evidence relating to Petitioner’s dispute with a man named Richard; (3) that the trial
11
court erred in failing to instruct the jury on the defense of another; and (4) that
12
Petitioner’s trial counsel was ineffective for failing to move to exclude certain statements
13
made by Petitioner and by failing to request limiting instructions as to other offenses
14
committed by Petitioner.
15
Respondent filed an answer to the petition on November 12, 2015. (Answer, ECF
16
No. 12.) Petitioner filed a traverse to the answer on May 8, 2015. (Traverse, ECF No.
17
14.)
18
II.
Statement of Facts1
19
TRIAL EVIDENCE
20
On March 7, 2011, multiple people were present at the home of
Israel Lopez's brother-in-law, located on K Street in Parlier.[fn2] Among
those present were Geralee Rojas, Israel Lopez, Guadalupe Hernandez,
defendant and several others. Defendant and Hernandez had their own
beds at the K Street residence, whereas Rojas and Lopez did not live
there at the time of the shooting.
21
22
23
FN2: We will refer to this location as the "K Street residence."
24
Testimony of Geralee Rojas
25
Sometime after Rojas arrived, she went to sit on a bed. Lopez
26
27
The Fifth District Court of Appeal’s summary of the facts in its March 4, 2014 opinion is presumed correct.
28 U.S.C. § 2254(e)(1).
1
28
2
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
came into the room, grabbed Rojas's purse and tried to toss it onto the
ground. Rojas grabbed her purse from Lopez's hands, and several items
fell to the floor. Rojas asked what Lopez was doing and told him not to
touch her things. Lopez told Rojas that she was not supposed to be there.
A man nicknamed "Chelis" came into the room and asked Rojas if she
was alright. Chelis told Lopez to go outside. Lopez left, but returned "a
couple minutes" later.
When Lopez returned, he began to tell Rojas she was "pretty," and
that she would never know "what a good woman" she "could be." Rojas
told Lopez to leave her alone. Lopez grabbed some nearby shells from
seeds Rojas had been eating and threw them at her. Again Rojas told
Lopez to leave her alone. Lopez laughed and told her she was beautiful
when she was mad.
Several people walked in, having heard the argument. Lopez and
two others left the room and went into the kitchen. Rojas began chatting
with defendant. Lopez then returned and "started up again" with Rojas.
Defendant smirked at Rojas and shook his head, suggesting Rojas should
not pay attention to Lopez.
Eventually, "somebody" came in and told Lopez "something" about
his wife that made Lopez angry. Then, Lopez told Rojas that she was
"probably going to die an old, lonely woman ...."[fn3] Defendant told Lopez
to leave Rojas alone, and Lopez told defendant to mind his own
business.[fn4]
FN3: Rojas initially testified that she did not recall what Lopez had said to
her. On cross-examination by defense counsel, Rojas testified to the
substance of what Lopez had said.
FN4: Sheriff's Deputy Hector Palma testified that he interviewed a
houseguest nicknamed Chaka. According to Chaka, Lopez also said, " 'So
then do you want something with me or what?' " to defendant. Defendant
then said, " 'It is better if you left,' " to which Lopez replied, " 'Well, no one
is going to tell me when to leave. Even if I don't live here, you can't tell me
to go.' " Defendant said that they would tell the owner of the home to have
Lopez leave.
At this point, Rojas saw that Lopez was unsteady on his feet and
perceived him to be "very intoxicated." Rojas did not recall whether Lopez
then left for the kitchen or remained in the vicinity.
Defendant told Rojas not to pay any attention to Lopez. Defendant
then stood up and told Rojas he was going to go to bed. Lopez came back
into the room, and defendant sat back down. Lopez told Rojas that "his
best friend is with his wife now." Lopez said he "has been high for a
couple days" and "doesn't know why ... he is still standing here breathing."
Defendant eventually repeated that he was going to bed. Lopez
approached defendant and leaned forward. Lopez then stepped back, said
he was leaving and that everyone could "go to hell," and walked out of the
room. Defendant looked at Rojas and smiled. Rojas shook her head and
rolled her eyes. Rojas asked whether defendant had to go to work the next
day. Rojas did not recall what defendant's response was. Defendant then
said, "'I'm going to go lay down already,'" and walked to his bed. Rojas
3
1
closed a curtain nearby, turned up the radio and began to pick up her
things.
2
Testimony of Guadalupe Hernandez
3
Guadalupe Hernandez testified that defendant retrieved a gun near
the time he got into the argument with Lopez. Defendant wrapped the gun
into a black handkerchief and placed it in his pocket.[fn5] Defendant then
went outside.
4
5
6
7
8
9
FN5: Hernandez testified that he "think[s]" it was a handkerchief "or
something like that."
In an interview with law enforcement after the shooting, Hernandez
said he heard a gunshot "right after" defendant, Lopez and Gustavo left
the house.[fn6] At trial, however, Hernandez testified that he did not hear a
gunshot because the television was loud.
10
FN6: One of defendant's roommates, Jose Perez, testified that he heard a
gunshot "just as soon as" defendant "went outside."
11
Post Shooting
12
That evening, Police Officer Omar Khan was dispatched to the K
Street residence on a report that a person was "injured." Officer Khan was
the first officer on scene. He found Lopez lying on his back in the front
yard, unconscious and bleeding. According to the coroner, Lopez had
sustained a gunshot wound to the left side of his head "essentially in the
temple area." Rojas testified that defendant was no longer at the K Street
residence when police arrived.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
At the hospital, Lopez was "technically brain dead" and placed on
life support so his organs could be recovered for transplantation.
A pathologist observed no powder grains deposited around Lopez's
bullet wound. The absence of these deposits — known as stippling —
indicated Lopez was shot from a distance equal to or greater than 18
inches. The pathologist testified that Lopez's wound appeared to be a
"distant" gunshot wound, inconsistent with the close proximity inherent in a
physical struggle.[fn7]
FN7: This would tend to contradict defendant's claim that he shot Lopez
during a physical struggle. Defendant's version of events, as reflected in
his interview with police, is set forth later in this opinion.
Defendant was taken into custody in the driveway of a residence in
New London, California. Law enforcement searched defendant's room. A
.22-caliber revolver wrapped in a black handkerchief, along with
ammunition, was found there.
Defendant's Interview with Law Enforcement
27
Law enforcement conducted a recorded interview of defendant,
which was played for the jury.
28
Defendant said he smoked marijuana and methamphetamine the
4
1
2
3
4
5
6
7
8
9
day of the shooting, and that Lopez had smoked marijuana. Defendant
said that Lopez twice touched Rojas's breasts. Defendant told him to stop,
and Lopez challenged him to a fight. But defendant said his fight with
Lopez was not about Rojas. Rather, the fight was about the fact that
Lopez did not like defendant very much.
Lopez told defendant he wanted to fight him because he was " 'the
toughest one around here.' " Lopez told defendant he would " 'f**k' " him "
'up' " and " 'beat the shit' " out of him. Defendant was "fed up" with Lopez
because he had humiliated him "so many times." The two went outside to
fight. Lopez's friend, Ramirez, accompanied them outside, and defendant
thought they were going to attack him. Defendant came out of the house
with a gun because he thought Lopez might kill him.
Defendant said Lopez attacked him first. Defendant felt enraged
and lost control as they struggled. He pulled out his gun and shot Lopez.
Defendant said it was "[a]nger just at that moment and nothing was
planned ...."
10
Defendant's Confrontation with "Richard" Before the Shooting
11
A man named Jose Perez testified that on the morning of the
shooting, defendant got into an argument with an individual named
"Richard." Defendant "complained" to Richard because "he had called him
out on his mother...." When asked if defendant was upset about Richard
being at the residence, Perez testified: "Uh, maybe, maybe, because he
was just there eating and because he didn't live there." It appeared as if
Richard and defendant were going to fight.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Another man named Jose Padilla also testified regarding
defendant's interaction with Richard. Padilla testified that an incident
involving "Richard" occurred the day before the shooting.[fn8] Richard was
outside the house, "visiting." Padilla was cooking and asked Richard if he
wanted to have something to eat. Richard came inside to eat, and
defendant began questioning him about "something that had occurred
almost 20 years ago." The "owner"[fn9] told Richard to leave. Afterwards,
defendant had his gun in his pocket, looked through the window, and said
he was going to kill Richard and his friend.
FN8: Padilla and Perez appear to have been referencing the same
incident. However, Perez said the incident occurred the morning of the
shooting, and Padilla said it occurred the day before.
FN9: Presumably, the owner of the residence where the shooting
occurred.
Padilla testified that, at some point, defendant showed him a gun
that looked like the same gun used to shoot Lopez. Padilla said, "'Put that
away. Don't be so hotheaded. Put it away.' "Defendant placed the gun on
Padilla's bed, looked out the window and said, "'Tell Richard to come over.
Tell Richard to come over.'" When defendant left the gun on his bed,
Padilla threw it over to defendant's bed and said, " 'Why are you leaving
this here, you crazy asshole?' "
During an interview with police, defendant was asked about
Richard. Defendant said, " 'Oh, I wanted to get him too ....' " He said that
5
Richard did not like him, and that they had longstanding "problems," and
that they had fought once years before. Defendant denied displaying his
gun to Richard or anyone else.
1
2
People v. Benitez, 2014 Cal. App. Unpub. LEXIS 1573, 1-9 (Mar. 4, 2014).
3
II.
Discussion
4
A.
Jurisdiction
5
Relief by way of a petition for writ of habeas corpus extends to a person in
6
custody pursuant to the judgment of a state court if the custody is in violation of the
7
Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §
8
2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he
9
suffered violations of his rights as guaranteed by the U.S. Constitution. In addition, the
10
conviction challenged arises out of the Fresno County Superior Court, which is located
11
within the jurisdiction of this court. 28 U.S.C. § 2241(d); 2254(a). Accordingly, the Court
12
has jurisdiction over the action.
13
B.
Legal Standard of Review
14
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death
15
Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus
16
filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,
17
114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of
18
the AEDPA; thus, it is governed by its provisions.
19
Under AEDPA, an application for a writ of habeas corpus by a person in custody
20
under a judgment of a state court may be granted only for violations of the Constitution
21
or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n.
22
7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in
23
state court proceedings if the state court's adjudication of the claim:
24
25
26
27
28
(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.
6
1
2
28 U.S.C. § 2254(d).
1.
Contrary to or an Unreasonable Application of Federal Law
3
A state court decision is "contrary to" federal law if it "applies a rule that
4
contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts
5
that are materially indistinguishable from" a Supreme Court case, yet reaches a different
6
result." Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06.
7
"AEDPA does not require state and federal courts to wait for some nearly identical
8
factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that
9
even a general standard may be applied in an unreasonable manner" Panetti v.
10
Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The
11
"clearly established Federal law" requirement "does not demand more than a ‘principle'
12
or ‘general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state
13
decision to be an unreasonable application of clearly established federal law under §
14
2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle
15
(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-
16
71 (2003). A state court decision will involve an "unreasonable application of" federal
17
law only if it is "objectively unreasonable." Id. at 75-76, quoting Williams, 529 U.S. at
18
409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the
19
Court further stresses that "an unreasonable application of federal law is different from
20
an incorrect application of federal law." 131 S. Ct. 770, 785 (2011), (citing Williams, 529
21
U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks
22
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the
23
correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541
24
U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts
25
have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.
26
Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established
27
Federal law for a state court to decline to apply a specific legal rule that has not been
28
squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419
7
1
2
(2009), quoted by Richter, 131 S. Ct. at 786.
2.
Review of State Decisions
3
"Where there has been one reasoned state judgment rejecting a federal claim,
4
later unexplained orders upholding that judgment or rejecting the claim rest on the same
5
grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the
6
"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198
7
(9th Cir. 2006). Determining whether a state court's decision resulted from an
8
unreasonable legal or factual conclusion, "does not require that there be an opinion from
9
the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.
10
"Where a state court's decision is unaccompanied by an explanation, the habeas
11
petitioner's burden still must be met by showing there was no reasonable basis for the
12
state court to deny relief." Id. ("This Court now holds and reconfirms that § 2254(d) does
13
not require a state court to give reasons before its decision can be deemed to have been
14
‘adjudicated on the merits.'").
15
Richter instructs that whether the state court decision is reasoned and explained,
16
or merely a summary denial, the approach to evaluating unreasonableness under §
17
2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments
18
or theories supported or, as here, could have supported, the state court's decision; then
19
it must ask whether it is possible fairminded jurists could disagree that those arguments
20
or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.
21
Thus, "even a strong case for relief does not mean the state court's contrary conclusion
22
was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves
23
authority to issue the writ in cases where there is no possibility fairminded jurists could
24
disagree that the state court's decision conflicts with this Court's precedents." Id. To put
25
it yet another way:
26
27
28
As a condition for obtaining habeas corpus relief from a federal
court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.
8
1
Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts
2
are the principal forum for asserting constitutional challenges to state convictions." Id. at
3
787. It follows from this consideration that § 2254(d) "complements the exhaustion
4
requirement and the doctrine of procedural bar to ensure that state proceedings are the
5
central process, not just a preliminary step for later federal habeas proceedings." Id.
6
(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977).
7
3.
Prejudicial Impact of Constitutional Error
8
The prejudicial impact of any constitutional error is assessed by asking whether
9
the error had "a substantial and injurious effect or influence in determining the jury's
10
verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551
11
U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the
12
state court recognized the error and reviewed it for harmlessness). Some constitutional
13
errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.
14
Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659
15
(1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective
16
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the
17
Strickland prejudice standard is applied and courts do not engage in a separate analysis
18
applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n. 7 (2002). Musalin
19
v. Lamarque, 555 F.3d at 834.
20
III.
Review of Petition
21
A.
22
Petitioner claims that the trial court erred in allowing the prosecution to admit
23
24
Claim One: Admission of Evidence of Immigration Status
prejudicial evidence relating to his immigration status.
1.
State Court Decision
25
Petitioner presented this claim by way of direct appeal to the California Court of
26
Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the
27
appellate court and summarily denied in a subsequent petition for review by the
28
California Supreme Court. Because the California Supreme Court’s opinion is summary
9
1
in nature, this Court “looks through” that decision and presumes it adopted the reasoning
2
of the California Court of Appeal, the last state court to have issued a reasoned opinion.
3
See Ylst v. Nunnemaker, 501 U.S. 797, 804-05 & n.3 (1991) (establishing, on habeas
4
review, “look through” presumption that higher court agrees with lower court’s reasoning
5
where former affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d
6
663, 669 n.7 (9th Cir. 2000) (holding federal courts look to last reasoned state court
7
opinion in determining whether state court’s rejection of petitioner’s claims was contrary
8
to or an unreasonable application of federal law under 28 U.S.C. § 2254(d)(1)).
9
10
11
In denying Petitioner’s claim, the California Court of Appeal explained:
I. EVIDENCE OF DEFENDANT'S "PROBLEMS" IN "WASHINGTON" AND
RETURN TO MEXICO
13
On appeal, defendant claims that the court erred in admitting
impeachment evidence that defendant had, prior to the shooting,
experienced "problems" involving a gun and was "returned" to Mexico. We
disagree.
14
A. ADDITIONAL FACTS
15
In his interview with police, defendant said he was a policeman in
Mexico prior to coming to the United States at age 23. He said, "I've been
over here all my life, since I was 23 years old. I left all that since I was 23
years old ... and I came over here and I haven't gone back. I haven't been
back there." The interview, including this portion about leaving Mexico and
never returning, was offered into evidence by the prosecution.
12
16
17
18
19
20
The prosecution also introduced evidence contradicting defendant's
out-of-court claim that he never returned to Mexico. A portion of the
prosecutor's examination of Guadalupe Hernandez is set forth below:
22
"[PROSECUTOR]: And you told the detectives that
[defendant] told you that he had problems in a casino in
Washington [s]tate for having a gun and he was returned to
Mexico, correct?
23
"[HERNANDEZ]: Uh, he had told me that.
24
25
"[PROSECUTOR]: And he told you that he didn't know that
there were sensors in the casino that alert to the fact that
there's a gun, correct?
26
"[HERNANDEZ]: Yes."[fn10]
21
27
28
FN10: The prosecutor also elicited testimony from Detective Palma
confirming Hernandez's testimony.
10
1
B. ANALYSIS
3
Defendant argues that because he did not testify, it was improper to
admit hearsay evidence of a prior offense to attack his credibility. The
Attorney General contends the evidence was admissible under Evidence
Code section 1202. We agree with the Attorney General.
4
1. The Evidence is Admissible Under Evidence Code Section 1202
2
5
Evidence Code Section 1202 provides, in part:
6
"Evidence of a statement or other conduct by a declarant
that is inconsistent with a statement by such declarant
received in evidence as hearsay evidence is not
inadmissible for the purpose of attacking the credibility of the
declarant though he is not given and has not had an
opportunity to explain or deny such inconsistent statement or
other conduct...."[fn11]
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
FN11: This statute applies when the defendant is the nontestifying
hearsay declarant. (See People v. Jacobs (2000) 78 Cal.App.4th 1444,
1449-1453.)
By its plain language, Evidence Code section 1202 contradicts
defendant's claim on appeal that the prosecution improperly used hearsay
evidence to attack his credibility.
Defendant disputes this conclusion, noting that the prosecution was
the proponent of both pieces of evidence (i.e., defendant's statement and
the evidence impeaching it). Defendant argues this fact is relevant under
People v. Fritz (2007) 153 Cal.App.4th 949, 956 (Fritz). In Fritz, the Court
of Appeal held that when the prosecution offers the defendant's hearsay
statement into evidence, it has "no right to impeach it." (Ibid.)
Another appellate case contradicts that portion of Fritz. In People v.
Osorio (2008) 165 Cal.App.4th 603, 617 (Osorio), the Court of Appeal held
that Evidence Code sections 785 and 1202 "allow a prosecutor to use a
prior inconsistent statement to partially impeach a hearsay statement the
prosecutor had previously introduced." (Osorio, supra, at p. 617.) On this
issue, Osorio and Fritz seem to conflict.
We conclude Osorio is controlling on this point. The Supreme Court
has quoted the relevant Osorio language favorably, and has noted that
Osorio's "result was ... correct." (People v. Blacksher (2011) 52 Cal.4th
769, 808.) Therefore, we too hold that a prosecutor may "use a prior
inconsistent statement to partially impeach a hearsay statement the
prosecutor had previously introduced." (Osorio, supra, 165 Cal.App.4th at
p. 617; Blacksher, supra, 52 Cal.4th at p. 808.)
Moreover, we note that cases like People v. Mayfield (1997) 14
Cal.4th 668 prohibit eliciting irrelevant testimony on cross-examination
merely for the purpose of contradicting it. (Id. at p. 748.) But here, the
evidence being impeached was defendant's statement to law
enforcement. The prosecution did not offer defendant's statement to law
enforcement "merely" to contradict it. The statement contained highly
relevant evidence including defendant's admission that he shot Lopez.
11
1
2
3
4
5
6
7
8
9
As a result, the plain language of Evidence Code section 1202
provides a clear answer to the question we face. The evidence of
defendant's prior inconsistent hearsay statement "is not inadmissible for
the purpose of attacking [his] credibility" (Evid. Code, § 1202) even though
his choice not to testify left him without an opportunity to explain or deny
the inconsistent statement. (Ibid.) We therefore reject defendant's
contention that the evidence was inadmissible because he "was not a
witness and did not testify."
2. The Probative Value of the Evidence was not Substantially Outweighed
by its Prejudicial Effect
Defendant argues the evidence was inadmissible for another
reason: its probative value was substantially outweighed by its prejudicial
effect. (See Evid. Code, § 352.) Specifically, defendant contends that the
evidence of his "problems" in Washington was not relevant and was highly
prejudicial.
10
a. The Law
11
"[C]ollateral matters are admissible for impeachment purposes ...."
(People v. Lavergne (1971) 4 Cal.3d 735, 742.) However, the collateral
character of the evidence reduces its probative value. (Ibid.) Therefore,
trial courts must determine whether the probative value of the evidence is
substantially outweighed by the probability its admission will necessitate
undue consumption of time or create substantial danger of undue
prejudice, of confusing the issue, or of misleading the jury. (Evid. Code, §
352.) This determination is left to the discretion of the trial court. (People v.
Mayfield, supra, 14 Cal.4th at p. 748 ["the trial court has discretion to
admit or exclude evidence offered for impeachment on a collateral
matter"].)
12
13
14
15
16
17
18
19
20
21
22
23
"As with all relevant evidence ... the trial court retains discretion to
admit or exclude evidence offered for impeachment. [Citations.] A trial
court's exercise of discretion in admitting or excluding evidence is
reviewable for abuse [citation] and will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest miscarriage of
justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) " '[T]he
discretion to be exercised is that of the trial court, not that of the reviewing
court. Thus, even if the reviewing court might have ruled otherwise in the
first instance, the trial court's order will yet not be reversed unless, as a
matter of law, it is not supported by the record.' [Citation.]" (People v.
Tuggles (2009) 179 Cal.App.4th 339, 361.)
25
Under this deferential standard of review, appellate courts have
upheld admission of evidence regarding "collateral fact[s]" that "had no
bearing on any issue in the trial ...." (E.g., People v. Morrison (2011) 199
Cal.App.4th 158, 165.)
26
b. Discussion
27
Here, defendant argues his "residency status was not relevant to
any issue in the case[]" including his credibility, citing Hernandez v.
Paicius (2003) 109 Cal.App.4th 452[fn12] (Hernandez). We disagree.
24
28
12
1
2
3
4
5
6
7
FN12: Disapproved on another point by People v. Freeman (2010) 47
Cal.4th 993, 1006, fn. 4.
The evidence in question was relevant to defendant's credibility.
For this reason, Hernandez is inapposite. In Hernandez, the Court of
Appeal held that evidence of a civil plaintiff's residency status should have
been excluded because it was not relevant to the issues at trial.
(Hernandez, supra, 109 Cal.App.4th at p. 460.) Conversely, the evidence
here that defendant "was returned to Mexico" was relevant to his
credibility because it contradicted his claim that he had not "been back" to
Mexico since he was 23. (Evid. Code, § 780, subd. (e).)
12
Defendant contends that even if the evidence is relevant, it was too
prejudicial. Defendant largely ignores the court's efforts to minimize any
prejudice. The court proposed to the parties the possibility of permitting
testimony that defendant had been "returned to Mexico" without reference
to defendant's "immigration status" or "deportation." The testimony
ultimately conformed to these guidelines. In sum, the court took the proper
approach in admitting this relevant evidence while taking steps to mitigate
any prejudicial effect. We cannot say the court's decisions were "arbitrary,
capricious, or patently absurd," (see People v. Rodriguez, supra, 20
Cal.4th at pp. 9-10) and therefore find no prejudicial error.
13
3. Any Error Was Harmless
14
Moreover, we conclude the admission of the impeachment
evidence, even if it had been error, was harmless under People v. Watson
(1956) 46 Cal.2d 818.
8
9
10
11
15
16
17
18
19
20
21
22
23
24
25
26
27
28
At trial, it was undisputed that defendant had shot Lopez.
Defendant's credibility was therefore only relevant as to the facts
surrounding a potential self-defense theory. On this point, the
prosecution's evidence contradicting defendant's version of events was
overwhelming.
Defendant claimed he and Lopez "struggled and that's when [he]
pulled out the ... gun ...." Defendant said he and Lopez were stuck
together when he fired. But the pathologist testified that the physical
evidence (i.e., lack of stippling) showed Lopez had been shot from a
distance inconsistent with the close proximity inherent in a physical
struggle.
Moreover, much of defendant's own description of his state of mind
comports with killing out of anger rather than self-defense. In the transcript
of defendant's statement given to the jury,[fn13] the following exchange
occurred:
"[DETECTIVE:] But look you already have a gun, you stay in
the house and if he doesn't do anything to you inside the
house, you would still be cool and calm.
"[DEFENDANT:] Yeah, I know officer, I know. But when
you're enraged ... hey.
13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
"[DETECTIVE:] You lost control.
"[DEFENDANT:] Yes, I lost control."
FN13: The parties stipulated that the court reporter need not report the
audio as played for the jury because "the jurors ha[d] each been provided
with a copy of the transcript and the transcript [was] made a part of the
record in this case[.]"
Elsewhere, defendant described the shooting as an "outburst" and
"[a]nger just at that moment ... nothing was planned ...." Defendant said
Lopez had it coming because defendant was "fed up with him," and Lopez
had humiliated defendant so many times. Defendant admitted what he had
done "wasn't right," but that he "couldn't take it anymore ...."
We conclude any error in admitting the impeachment evidence was
harmless.[fn14]
FN14: Defendant also contends the evidence that his prior arrest involved
possession of a gun was unduly prejudicial because it painted him as a
"gun-tot[er]." We conclude that any error in this regard was not prejudicial.
The vague evidence of defendant's prior "problem" involving a gun was
not the only evidence that defendant was a "gun-toter." Indeed, far more
direct evidence was offered on the issue. Hernandez testified that
defendant "always carried his gun." No objection was made to this
testimony. Thus, even if the court had excluded evidence that defendant's
prior arrest involved possession [*19] of a gun, the jury would still have
been exposed to evidence that defendant routinely carried a gun. We
therefore find no prejudice resulting from the admission of evidence that
defendant's prior arrest involved gun possession.
People v. Benitez, 2014 Cal. App. Unpub. LEXIS 1573 at 9-19.
2.
Analysis
18
To the extent that Petitioner contends that prejudicial evidence of his immigration
19
status was permitted under California state evidentiary law, his claim fails because
20
habeas corpus will not lie to correct errors in the interpretation or application of state law.
21
Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991).
22
With respect to Petitioner's due process claim, the United States Supreme Court
23
has held that habeas corpus relief should be granted where constitutional errors have
24
rendered a trial fundamentally unfair. Williams v. Taylor, 529 U.S. 362, 375, 120 S. Ct.
25
1495, 146 L. Ed. 2d 389 (2000). No Supreme Court precedent has made clear, however,
26
that admission of irrelevant or overly prejudicial evidence can constitute a due process
27
violation warranting habeas corpus relief. See Holley v. Yarborough, 568 F.3d 1091,
28
1101 (9th Cir. 2009) ("The Supreme Court has made very few rulings regarding the
14
1
admission of evidence as a violation of due process. Although the Court has been clear
2
that a writ should be issued when constitutional errors have rendered the trial
3
fundamentally unfair, it has not yet made a clear ruling that admission of irrelevant or
4
overtly prejudicial evidence constitutes a due process violation sufficient to warrant
5
issuance of the writ." (citation omitted)).
6
Even assuming that improper admission of evidence under some circumstances
7
rises to the level of a due process violation warranting habeas corpus relief under
8
AEDPA, this is not such a case. Petitioner's claim would fail even under Ninth Circuit
9
precedent, pursuant to which an evidentiary ruling renders a trial so fundamentally unfair
10
as to violate due process only if "there are no permissible inferences the jury may draw
11
from the evidence." Windham v. Merkle, 163 F.3d 1092, 1102 (9th Cir 1998) (emphasis
12
in original) (quoting Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991)). See
13
also Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005) ("A habeas petitioner bears a
14
heavy burden in showing a due process violation based on an evidentiary decision.").
15
Here, as noted by both Respondent and the state court, the evidence was relevant to
16
Petitioner’s credibility as it contradicted Petitioner’s statements that he had never
17
returned to Mexico. Petitioner’s credibility was at issue in light of his claim that the
18
shooting was result of self-defense, and that he was engaged in a physical struggle with
19
the victim. Accordingly, the evidence was relevant to attack Petitioner’s credibility in an
20
attempt by the prosecution to undermine Petitioner’s claim that the killing was justified.
21
In any event, the admission of the challenged evidence did not deny Petitioner a
22
fair trial. After a review of the record, this Court finds that the trial court's admission of
23
the testimony would not have had a "substantial and injurious effect" on the verdict.
24
Brecht, 507 U.S. at 623. See also Penry v. Johnson, 532 U.S. 782, 793-96, 121 S. Ct.
25
1910, 150 L. Ed. 2d 9 (2001). First, the while the statements were made, there was no
26
evidence presented regarding Petitioner’s immigration status.
27
Furthermore, strong evidence supported a finding of Petitioner’s guilt. Several
28
witnesses observed the interaction between the victim and Petitioner. Guadalupe
15
1
Hernandez testified that just prior to the shooting she observed Petitioner retrieve his
2
gun and wrap it in a black handkerchief. Petitioner, in his interview with law enforcement
3
admitted that he went outside of the house and fought with victim, and ultimately shot
4
him, although he claimed the shooting was in self defense. After the shooting, law
5
enforcement found a gun wrapped in a handkerchief in Petitioner’s room. Also, a
6
pathologist determined that there was no stippling around the gunshot wound, providing
7
evidence that the gunshot was made from a distance, undermining Petitioner’s
8
statements that the shooting occurred during a physical altercation.
9
Based on the totality of the evidence including the nature of the prejudicial
10
statements at issue, and strong evidence presented at trial regarding the murder, there
11
is no reasonable probability the verdict would have been different if the subject testimony
12
had not been presented. The California court's rejection of the admission of prejudicial
13
evidence claim was not contrary to nor an unreasonable application of federal law. 28
14
U.S.C. § 2254(d)(1). It is recommended that Petitioner's first claim for relief be denied.
Claim Two – Admission of Evidence of Dispute with “Richard”
15
B.
16
Petitioner next contends the trial court erred in allowing evidence of Petitioner’s
17
18
recent dispute with a man named Richard.
1.
State Court Decision
19
Petitioner presented this claim by way of direct appeal to the California Court of
20
Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the
21
appellate court and summarily denied in subsequent petition for review by the California
22
Supreme Court. (See Lodged Docs. 1-6.) Because the California Supreme Court's
23
opinion is summary in nature, this Court "looks through" that decision and presumes it
24
adopted the reasoning of the California Court of Appeal, the last state court to have
25
issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.
26
In denying Petitioner's claim, the Fifth District Court of Appeal explained:
27
II. EVIDENCE OF DEFENDANT'S DISPUTE WITH RICHARD
28
Defendant claims the court erred in admitting evidence of his
16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
interactions with "Richard" that occurred before the shooting. The Attorney
General counters that the evidence was properly admitted as evidence of
intent and the absence of self-defense.
"Evidence of other crimes is admissible only if relevant to prove a
material fact at issue, separate from criminal propensity. [Citation.]"
(People v. Demetrulias (2006) 39 Cal.4th 1, 14.) Intent and lack of
justification (e.g., absence of self-defense) are two examples of "ultimate
facts" separate from criminal propensity. (See ibid.)
Here, the evidence of defendant's conduct concerning Richard was
probative of intent and lack of justification in the shooting of Lopez. At trial,
defendant did not dispute that he had shot Lopez. Rather defendant's
theory at trial was self-defense. Defendant's statement to police supported
this theory. In the statement, defendant admitted to routinely carrying his
gun, but claimed he did so for protection. The evidence regarding the
dispute with Richard undermined defendant's claim. The testimony
indicated that defendant, with his gun in his pocket, said he was going to
kill Richard and his friend. There was also testimony that defendant placed
the gun on Padilla's bed and asked him to tell Richard to come over. If
believed, the evidence suggests that defendant did not carry a gun solely
for his "protection." Thus, the evidence of defendant's dispute with Richard
was relevant to a material issue apart from criminal propensity. The court
did not abuse its discretion in admitting the evidence.
Defendant also claims the court had a sua sponte duty to instruct
on the limited admissibility of this evidence. However, courts generally do
not have a sua sponte duty to issue such an instruction. (See People v.
Collie (1981) 30 Cal.3d 43, 63-64.) The Collie court acknowledged there
"may" be an "occasional extraordinary case" in which a sua sponte duty
would arise, such as when the evidence of the prior offense is "dominant
... highly prejudicial and minimally relevant to any legitimate purpose...."
(Id. at p. 64.) This is not such a case. The evidence of defendant's
interaction with Richard was not the "dominant" piece of evidence, nor
was it "minimally relevant." Therefore, the court had no sua sponte duty to
give the instruction.
People v. Benitez, 2014 Cal. App. Unpub. LEXIS 1573 at 19-21.
2.
Analysis
21
The Court has set forth the relevant law regarding application of federal law to
22
claims that prejudicial evidence was admitted causing a due process violation warranting
23
habeas corpus relief with regard to claim one The same law is here incorporated and
24
applied to the present claim. See Holley v. Yarborough, 568 F.3d at 1101.
25
Here, even assuming the admission of evidence was improper, Petitioner has not
26
shown that the evidentiary ruling renders the trial fundamentally unfair. It cannot be said
27
there are no permissible inferences the jury could draw from the evidence. Here, the
28
evidence was relevant to show Petitioner’s intent and to create an inference that the
17
1
shooting was not made in self-defense. The evidence was presented to the jury to show
2
that Petitioner recently had made statements that he routinely carries his gun and that
3
he had recently threatened to kill Richard and his friend. Petitioner’s credibility was at
4
issue in light of his claim that the shooting was result of self-defense, and that he was
5
engaged in a physical struggle with the victim. Accordingly, as permissible inferences
6
could be made, Petitioner’s due process claim fails under federal law. Windham v.
7
Merkle, 163 F.3d 1092, 1102.
8
Also, as set forth above, this Court finds that the trial court's admission of the
9
testimony would not have had a "substantial and injurious effect" on the verdict. Brecht,
10
507 U.S. at 623. Strong evidence supported a finding of Petitioner’s guilt. While the
11
evidence of Petitioner’s prior encounter with Richard was beneficial to the prosecution to
12
show that Petitioner did not act in self-defense, evidence of Petitioner’s conduct on the
13
night of the shooting supported such a finding. Petitioner admitted to shooting Lopez,
14
Guadalupe Hernandez testified that she witnessed Petitioner retrieve his gun before
15
exiting the house and confronting the victim; and expert testimony provided evidence
16
that the victim was shot from a distance. The facts provided of the event that occurred on
17
the night of the killing provide strong evidence that Petitioner did not act in self-defense.
18
Further, to the extent that Petitioner claims that the court erred in not sua sponte
19
instructing the jury on the limited admissibility of the evidence, the claim fails. The
20
Supreme Court has held that a challenge to a jury instruction solely as an error under
21
state law does not state a claim cognizable in federal habeas corpus proceedings.
22
Estelle v. McGuire, 502 U.S. at 71-72. A claim that an instruction was deficient in
23
comparison to a state model or that a trial judge incorrectly interpreted or applied state
24
law governing jury instructions does not entitle one to relief under § 2254, which requires
25
violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a),
26
2241(c)(3). Accordingly, to the extent that Petitioner raises state law claims, his claims
27
should be dismissed.
28
The only basis for federal collateral relief for instructional error is that an infirm
18
1
instruction or the lack of instruction by itself so infected the entire trial that the resulting
2
conviction violates due process. Estelle v. McGuire, 502 U.S. at 71-72; Cupp v.
3
Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973); see Donnelly v.
4
DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974) (it must be
5
established not merely that the instruction is undesirable, erroneous or even "universally
6
condemned," but that it violated some right guaranteed to the defendant by the
7
Fourteenth Amendment). The Court in Estelle emphasized that the Court had very
8
narrowly defined the category of infractions that violate fundamental fairness, and that
9
beyond the specific guarantees enumerated in the Bill of Rights, the Due Process
10
Clause has limited operation. 502 U.S. at 72-73.
11
However, when habeas is sought under 28 U.S.C. § 2254, a failure to instruct on
12
the defense theory of the case constitutes error if the theory is legally sound and
13
evidence in the case makes it applicable. Clark v. Brown, 450 F.3d 898, 904 (9th Cir.
14
2006); see Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 99 L. Ed. 2d 54
15
(1988) (reversing a conviction and holding that even if a defendant denies one or more
16
elements of the crime, he is entitled to an entrapment instruction whenever there is
17
sufficient evidence from which a reasonable jury could find entrapment, and the
18
defendant requests such an instruction). In this case, Petitioner does not contend that
19
the Court failed to instruct on an element of the crime, or on a specific defense, just
20
whether there should have been an instruction regarding how the impeachment
21
evidence should be admissible only for a limited purpose. Although the instruction was
22
likely appropriate, the Court finds that the failure of the court to provide the instruction
23
would not have had a "substantial and injurious effect" on the verdict. Brecht, 507 U.S. at
24
623. The evidence did not directly relate to the fact of the incident that occurred on the
25
night of the shooting. The only obvious use of the evidence was for impeachment of
26
Petitioner’s credibility as to whether he shot the victim in self defense.
27
Based on the totality of the evidence including the nature of the prejudicial
28
statements at issue, and strong evidence presented at trial regarding the murder, there
19
1
is no reasonable probability the verdict would have been different if testimony was not
2
presented or if the trial court provided the requested jury instruction. The California
3
court's rejection of the admission of prejudicial evidence claim was not contrary to nor an
4
unreasonable application of federal law. 28 U.S.C. § 2254(d)(1). It is recommended that
5
Petitioner's second claim for relief be denied.
Claim Three – Failure to Instruct on Defense of Another
6
C.
7
Petitioner next contends the trial court erred in failing to instruct the jury on
8
9
defense of another or defense of habitation.
1.
State Court Decision
10
Petitioner presented this claim by way of direct appeal to the California Court of
11
Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the
12
appellate court and summarily denied in subsequent petition for review by the California
13
Supreme Court. (See Lodged Docs. 1-6.) Because the California Supreme Court's
14
opinion is summary in nature, this Court "looks through" that decision and presumes it
15
adopted the reasoning of the California Court of Appeal, the last state court to have
16
issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.
17
In denying Petitioner's claim, the Fifth District Court of Appeal explained:
18
III. LACK OF INSTRUCTION ON DEFENSE OF ANOTHER/HABITATION
19
A. THE PARTIES' CONTENTIONS
20
Defendant next claims the court erred in failing to instruct on
defense of another and defense of habitation. We conclude that neither
instruction would have been supported by substantial evidence.[fn15]
Therefore, the court did not err in failing to give the instruction sua sponte.
21
22
23
24
25
26
27
28
FN15: Defendant claims the court erred in failing to instruct on a lesser
included offense ("defense of another as a form of imperfect self defense")
and defenses to the crime ("defense of another ... as an alternate form of
exculpatory self defense" and defense of habitation). We acknowledge
that there are differences between a court's sua sponte duty to instruct on
lesser included offenses versus defenses. (People v. Barton (1995) 12
Cal.4th 186, 195.) "[A] trial court's duty to instruct, sua sponte, or on its
own initiative, on particular defenses is more limited" than its duty to
instruct on lesser included offenses. (Ibid.) But there is one commonality
that spans both contexts: there is no sua sponte duty to give an instruction
that is not supported by substantial evidence. (See People v. Prince
(2007) 40 Cal.4th 1179, 1265 [lesser included offense]; People v. Quintero
20
2
(2006) 135 Cal.App.4th 1152, 1165 [defense].) Because we conclude that
neither instruction would have been supported by substantial evidence,
the distinctions between sua sponte instructional duties in the context of
defenses and lesser included offenses are irrelevant to our holding.
3
B. ANALYSIS
4
There is no sua sponte duty to instruct on lesser included offenses
unless there is substantial evidence defendant is guilty only of the lesser
offense. (See People v. Prince, supra, 40 Cal.4th at p. 1265.) Similarly, a
court need not instruct on a defense that is not supported by substantial
evidence. (See People v. Quintero, supra, 135 Cal.App.4th at p. 1165.)
1
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. The Court had No Sua Sponte Duty to Instruct on Defense of Others
Because There was No Substantial Evidence Defendant "Actually" Feared
Imminent Harm Would Befall Rojas
Imperfect defense of others applies where the defendant kills "in
the actual but unreasonable belief he must defend another from imminent
danger of death or great bodily injury ...." (People v. Randle (2005) 35
Cal.4th 987, 997, overruled on another ground by People v. Chun (2009)
45 Cal.4th 1172.) Perfect defense of others applies whether the defendant
kills in the actual, reasonable belief he must defend another from imminent
danger of death of great bodily injury. The difference between the two
defenses is the reasonableness of defendant's actual belief in the need to
defend another. But both defenses require defendant possess an "actual"
fear of imminent harm. (People v. Butler (2009) 46 Cal.4th 847, 868.)
Here, the court was not required to instruct on defense of another (perfect
or imperfect) because there was no evidence defendant actually believed
he needed to defend Rojas from imminent danger or death.
The last time Lopez was near Rojas, he told everyone to "go to
hell," and that he was leaving. Defendant looked at Rojas and smiled.
Rojas shook her head and rolled her eyes. Defendant and Rojas then had
a brief, casual conversation about whether defendant was going to work.
Defendant then said he was going to sleep. Thus the evidence of
defendant's conduct during and immediately after the confrontation with
Lopez does not show an actual fear of Lopez imminently harming Rojas.
And, in his interview with law enforcement, defendant specifically said his
fight with Lopez was not about Rojas. There was no substantial evidence
to support instruction on defense of others.
2. The Court Did not Prejudicially Err in Failing to Instruct on Defense of
Habitation
Defendant's claim the court was required to instruct on defense of
habitation also fails. Defendant claims "had the jury been instructed that a
person is privileged to use reasonable force to defend his home and
persons therein, it is reasonably probable that the jury would have
acquitted" him. But deadly force is never reasonable to protect property
alone. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1360.) "The
defendant must also show either self-defense or defense of others ...."
(Ibid.) And, as we explained above, there was no evidence to support
defense of others. Thus, a defense of others theory could not support an
instruction on defense of habitation.
21
1
2
3
4
5
6
7
8
There was some evidence defendant acted in self-defense, such as
his statement to police.[fn16] But, the jury was instructed on the theory of
self-defense and rejected it. Thus, the failure to instruct on defense of
habitation based a self-defense theory, even if erroneous, was not
prejudicial because the jury necessarily rejected one of its factual
predicates.
FN16: We disagree with the Attorney General's assertion that "there was
no evidence that indicated ... that appellant acted in the belief there was
imminent danger to himself ...." (Italics added.) In his interview with law
enforcement, defendant claimed Lopez attacked him first by lunging at him
and hitting him. While the jury may not have accepted defendant's
testimony, it was evidence nonetheless.
People v. Benitez, 2014 Cal. App. Unpub. LEXIS 1573 at 21-25.
2.
Analysis
9
Again, the only basis for federal collateral relief for instructional error is that an
10
infirm instruction or the lack of instruction by itself so infected the entire trial that the
11
resulting conviction violates due process. Estelle v. McGuire, 502 U.S. at 71-72. The
12
evidence in this case did not support defense of habitation or defense of another. The
13
victim was possibly intoxicated and harassing Petitioner’s co-habitant, Rojas, there was
14
no evidence of physical threats or violent behavior on the part of the victim. The
15
testimony was consistent that the victim proceeded to leave the house, at which time
16
Petitioner followed him. The victim was no longer near Rojas when the shooting
17
occurred, and while Petitioner made statements that the victim chose to fight Petitioner
18
outside the house, there was no evidence to support a defense of habitation, as no
19
evidence was presented that the victim was attempting to enter the home or take any
20
actions against property or people present in the house. The court did instruct the jury on
21
self defense, based on Petitioner’s statements that the victim stated that he wanted to
22
fight Petitioner and that the victim attacked him first. Despite the court providing the self
23
defense instruction, the jury found the killing unprovoked and convicted Petitioner of
24
murder.
25
Petitioner has not shown that he suffered any fundamental unfairness or that the
26
omission had any substantial or injurious effect or influence in determining the jury's
27
verdict. Accordingly, it will be recommended that the Court deny Petitioner's claim
28
22
1
concerning the failure to provide the jury with instructions as to defense of another or
2
defense of habitation. Accordingly, Petitioner is not entitled to federal habeas relief on
3
this claim.
Claim Four – Ineffective Assistance of Counsel
4
D.
5
Petitioner next contends the trial court was ineffective for failing to exclude a
6
statement that suggested that Petitioner killed someone in Mexico, that counsel had
7
failed to request complete instructions, and that counsel failed to request a limiting
8
instruction as to the evidence regarding Petitioner’s interaction with Richard.
9
1.
State Court Decision
10
Petitioner presented this claim by way of direct appeal to the California Court of
11
Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the
12
appellate court and summarily denied in subsequent petition for review by the California
13
Supreme Court. (See Lodged Docs. 1-6.) Because the California Supreme Court's
14
opinion is summary in nature, this Court "looks through" that decision and presumes it
15
adopted the reasoning of the California Court of Appeal, the last state court to have
16
issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.
17
In denying Petitioner's claim, the Fifth District Court of Appeal explained:
18
IV. DEFENDANT HAS NOT CARRIED HIS BURDEN IN SHOWING
INEFFECTIVE ASSISTANCE OF COUNSEL
19
20
A. DEFENDANT'S CLAIM
22
Finally, defendant claims trial counsel was ineffective for (1) failing
to exclude his statement "suggesting he had killed someone in Mexico";
(2) failing to request "complete" defense instructions; and (3) failing to
request limiting instructions as to "other acts and offenses."
23
B. ANALYSIS
24
"On direct appeal, a conviction will be reversed only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed
to provide one, or (3) there simply could be no satisfactory explanation."
(People v. Mai (2013) 57 Cal.4th 986, 1009, italics added.) None of
defendant's ineffective assistance claims clear this high hurdle.
21
25
26
27
28
Defendant claims counsel should have moved to exclude a portion
of his interview with law enforcement. In the interview, defendant said he
23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
had been a police officer in Mexico for three years before coming to the
United States at age 23. Later in the interview, defendant was asked if he
was ever involved in combat involving weapons and he replied, not in the
United States, but he had been in Mexico. Defendant was asked whether
he killed anyone in Mexico and he twice replied, "[N]o." Defendant said he
wanted to "move on" from the subject and told the interviewer that he was
"not going to tell" him about "that."
Thus, defendant expressly denied killing anyone in Mexico.
Defendant may have created some ambiguity when he said he was "not
going to tell" the interviewer about "that." But, trial counsel could have
concluded that this weak, ambiguous evidence of a prior violent incident
provided a more favorable explanation for why defendant always carried a
gun (i.e., he had been involved in violent incidents in the past and now
carried a gun for defensive, not offensive, purposes). Or, trial counsel
could have believed that the jury might conclude any prior incident
occurred while defendant was in the line of duty as a law enforcement
officer. In sum, defendant has failed to show that "there simply could be no
satisfactory explanation" for counsel to choose not to move to exclude the
evidence. (People v. Mai, supra, 57 Cal.4th at p 1009.)
Defendant also claims trial counsel was ineffective for failing to
request instructions on defense of habitation and defense of others. But,
as we concluded there, the instruction on defense of others would not
have been supported by substantial evidence. Because defendant was not
entitled to those instructions, defense counsel may have reasonably
chosen not to request them. (Cf. People v. Slaughter (2002) 27 Cal.4th
1187, 1222.) And, any error in failing to instruct on defense of habitation
was not prejudicial. (See Discussion § III.B.2., ante.)
Finally, defendant claims trial counsel should have requested a
limiting instruction regarding the evidence of defendant's altercation with
Richard. Defense counsel may have reasonably concluded the risk of a
limiting instruction outweighed its benefit. (See People v. Hawkins (1995)
10 Cal.4th 920, 942, abrogated on other grounds by People v. Lasko
(2000) 23 Cal.4th 101.) Specifically, counsel may have wished to draw as
little attention to the evidence as possible. We cannot say "there simply
could be no satisfactory explanation" for defense counsel's conduct.
(People v. Mai, supra, 57 Cal.4th at p. 1009.)
We therefore reject defendant's claims of ineffective assistance of
counsel.
People v. Benitez, 2014 Cal. App. Unpub. LEXIS 1573 at 25-28.
2.
Legal Standard
24
The law governing ineffective assistance of counsel claims is clearly established
25
for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d).
26
Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998). In a petition for writ of habeas
27
corpus alleging ineffective assistance of counsel, the Court must consider two factors.
28
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lowry
24
1
v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's
2
performance was deficient, requiring a showing that counsel made errors so serious that
3
he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment.
4
Strickland, 466 U.S. at 687. The petitioner must show that counsel's representation fell
5
below an objective standard of reasonableness, and must identify counsel's alleged acts
6
or omissions that were not the result of reasonable professional judgment considering
7
the circumstances. Id. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348
8
(9th Cir. 1995). Judicial scrutiny of counsel's performance is highly deferential. A court
9
indulges a strong presumption that counsel's conduct falls within the wide range of
10
reasonable professional assistance. Strickland, 466 U.S. at 687; see also, Harrington v.
11
Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).
12
Second, the petitioner must demonstrate that "there is a reasonable probability
13
that, but for counsel's unprofessional errors, the result ... would have been different."
14
Strickland, 466 U.S. at 694. Petitioner must show that counsel's errors were "so serious
15
as to deprive defendant of a fair trial, a trial whose result is reliable." Id. at 687. The
16
Court must evaluate whether the entire trial was fundamentally unfair or unreliable
17
because of counsel's ineffectiveness. Id.; Quintero-Barraza, 78 F.3d at 1348; United
18
States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994).
19
A court need not determine whether counsel's performance was deficient before
20
examining the prejudice suffered by the petitioner as a result of the alleged deficiencies.
21
Strickland, 466 U.S. at 697. Since the defendant must affirmatively prove prejudice, any
22
deficiency that does not result in prejudice must necessarily fail. However, there are
23
certain instances which are legally presumed to result in prejudice, e.g., where there has
24
been an actual or constructive denial of the assistance of counsel or where the State has
25
interfered with counsel's assistance. Id. at 692; United States v. Cronic, 466 U.S., at 659,
26
and n. 25 (1984).
27
28
As the Supreme Court reaffirmed in Harrington v. Richter, meeting the standard
for ineffective assistance of counsel in federal habeas is extremely difficult:
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
The pivotal question is whether the state court's application of the
Strickland standard was unreasonable. This is different from asking
whether defense counsel's performance fell below Strickland's standard.
Were that the inquiry, the analysis would be no different than if, for
example, this Court were adjudicating a Strickland claim on direct review
of a criminal conviction in a United States district court. Under AEDPA,
though, it is a necessary premise that the two questions are different. For
purposes of § 2254(d)(1), "an unreasonable application of federal law is
different from an incorrect application of federal law." Williams, supra, at
410, 120 S. Ct. 1495, 146 L. Ed. 2d 389. A state court must be granted a
deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.
A state court's determination that a claim lacks merit precludes
federal habeas relief so long as "fairminded jurists could disagree" on the
correctness of the state court's decision. Yarborough v. Alvarado, 541
U.S. 652, 664, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). And as this
Court has explained, "[E]valuating whether a rule application was
unreasonable requires considering the rule's specificity. The more general
the rule, the more leeway courts have in reaching outcomes in case-bycase determinations." Ibid. "[I]t is not an unreasonable application of
clearly established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by this Court."
Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419, 173 L. Ed.
2d 251, 261 (2009) (internal quotation marks omitted).
Harrington v. Richter, 131 S. Ct. at 785-86.
15
"It bears repeating that even a strong case for relief does not mean the state
16
court's contrary conclusion was unreasonable." Id. at 786. "As amended by AEDPA, §
17
2254(d) stops short of imposing a complete bar on federal court relitigation of claims
18
already rejected in state proceedings." Id. "As a condition for obtaining habeas corpus
19
from a federal court, a state prisoner must show that the state court's ruling on the claim
20
being presented in federal court was so lacking in justification that there was an error
21
well understood and comprehended in existing law beyond any possibility for fairminded
22
disagreement." Id. at 786-87.
23
Accordingly, even if Petitioner presents a strong case of ineffective assistance of
24
counsel, this Court may only grant relief if no fairminded jurist could agree on the
25
correctness of the state court decision.
26
3.
Analysis
27
Petitioner contends that counsel was ineffective by failing (1) to exclude
28
Petitioner’s statement suggesting he had killed someone in Mexico, (2) failing to request
26
1
defense instructions, and (3) for failing to request limiting instructions as to Petitioner’s
2
altercation with Richard. The Court will address each in turn.
3
a.
Killing in Mexico
4
Petitioner made comments during his interview that he wanted to move on from
5
questioning whether had killed anyone after admitting he had been in combat as a police
6
officer in Mexico. Petitioner never admitted to killing anyone, and moreover expressly
7
denied killing anyone, prior to attempting to change the topic of the conversation. As the
8
state court found, the testimony might have raised some ambiguity as to Petitioner’s
9
conduct, but it also could have been considered as favorable evidence by defense
10
counsel. It is possible the testimony indicated that Petitioner had killed someone in the
11
line of duty as a police officer, or, alternatively, it could have provided an explanation
12
why Petitioner would carry a gun on his person for protection.
13
The state court was not unreasonable in denying the claim. The evidence was not
14
necessarily harmful, and as explained, could have even been beneficial to Petitioner’s
15
case to show that Petitioner had previous law enforcement experience and had a
16
rational reason to carry a firearm after being involved in combat situation. The state
17
court's decision was reasonable. Petitioner's arguments that the evidence was
18
prejudicial are relatively weak, and Petitioner provides no argument to undermine the
19
potential benefit provided by the testimony.
20
Petitioner has not shown that counsel's conduct fell below an objective standard
21
of reasonableness, or that he was prejudiced by counsel's conduct. The evidence, if
22
harmful to Petitioner, was marginally so, and as explained could have actually bee
23
beneficial to Petitioner. Counsel was not ineffective for attempting to exclude it, and
24
regardless, Petitioner has not shown that he was prejudiced by its admission.
25
The arguments or theories that could have supported the state court's decision
26
rejecting Petitioner's claim of ineffective assistance of counsel are not "so lacking in
27
justification that there was an error well understood and comprehended in existing law
28
beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87.
27
1
2
Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
b.
Failure to Request Instructions
3
Petitioner next asserts that counsel was ineffective for failing to request instruction
4
on defense of others and defense of habitation. As previously described with regard to
5
the instructional error claim, there was not substantial evidence, if any evidence at all, to
6
support those defenses. At trial Petitioner presented evidence of self-defense and the
7
jury was instructed on that defense, but still found him guilty. Counsel was not ineffective
8
for failing to request instruction for which there was no factual support. Moreover,
9
Petitioner has not shown prejudice, as if a jury did not find that he acted in self-defense
10
there was even less of a possibility that a jury would find that he acted in the defense of
11
others or in the defense of habitation.
12
Petitioner has not shown that counsel was ineffective, or that he was prejudiced
13
by the failure to request the defense instructions. The state court's decision rejecting
14
Petitioner's claim of ineffective assistance of counsel was not "lacking in justification that
15
there was an error well understood and comprehended in existing law beyond any
16
possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87. Petitioner is not
17
entitled to federal habeas relief.
18
c.
Limiting Instruction as to Dispute with Richard
19
Petitioner, in his final claim for ineffective assistance of counsel, claims that
20
counsel was ineffective in requesting a limiting instruction with regard to his dispute and
21
threats made to Richard. The state court, in reviewing the claim, found that counsel was
22
not ineffective and may have decided not pursue the instruction as to not draw further
23
attention to the testimony. Even assuming that Petitioner’s counsel was ineffective for
24
failing to request the instruction, Petitioner has not shown that he was prejudiced by the
25
action. There was significant evidence presented of Petitioner’s guilt in the case, and
26
even if the instruction was given, the jury would have still been presented the evidence,
27
but instructed only to consider it for its impeachment purposes.
28
The state court correctly found that Petitioner has not shown that counsel's
28
1
conduct fell below an objective standard of reasonableness, or that he was prejudiced by
2
counsel's conduct. The state court's decision rejecting Petitioner's claim was reasonable.
3
Richter, 131 S. Ct. at 786-87. Accordingly, Petitioner is not entitled to federal habeas
4
relief with regard to his ineffective assistance of counsel claims. The Court recommends
5
that the claims be denied.
6
IV.
7
8
Recommendation
Accordingly, it is hereby recommended that the petition for a writ of habeas
corpus be DENIED with prejudice.
9
This Findings and Recommendation is submitted to the assigned District Judge,
10
pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after
11
being served with the Findings and Recommendation, any party may file written
12
objections with the Court and serve a copy on all parties. Such a document should be
13
captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply
14
to the objections shall be served and filed within fourteen (14) days after service of the
15
objections. The parties are advised that failure to file objections within the specified time
16
may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d
17
834, 839 (9th Cir. 2014).
18
19
20
21
IT IS SO ORDERED.
Dated:
January 17, 2017
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
22
23
24
25
26
27
28
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?