Radillo v. Long

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 05/21/15 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

EDGAR ALEJANDRO RADILLO,

12

Petitioner,

13

vs.

14

DAVID B. LONG,

No. 2:13-cv-280-TLN-EFB P

15

FINDINGS AND RECOMMENDATIONS

Respondent.

16
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

17
18

pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction entered against him on

19

June 4, 2008 in the Yolo County Superior Court on charges of two counts of forcible rape, two

20

counts of rape in concert, and one count of assault, false imprisonment, and sexual battery. He

21

seeks federal habeas relief on the following grounds: (1) his constitutional rights were violated

22

by the prosecutor’s improper use of peremptory challenges to exclude five Hispanics from the

23

jury; and (2) the denial of his motion for a separate trial and the admission into evidence at a joint

24

trial of his co-defendants’ statements to police violated his federal constitutional rights. Petitioner

25

also “joins all arguments raised by his codefendants which inure to his benefit.” ECF No. 1 at 5.

26

Upon careful consideration of the record and the applicable law and for the reasons set forth

27

below, it is recommended that petitioner’s application for habeas corpus relief be denied.

28

/////
1

1
2

I. Background
In its unpublished memorandum and opinion affirming petitioner’s judgment of

3

conviction on appeal, the California Court of Appeal for the Third Appellate District provided the

4

following factual summary:

5
6
7
8
9
10
11
12
13
14
15

Defendants, Alberto Sanchez (Alberto), Israel Sanchez (Israel) and
Edgar Radillo (Edgar), picked up a young woman and drove her to
a remote location in Yolo County where they sexually assaulted
her. All three were convicted by a jury of two counts each of
forcible rape (Pen.Code, § 261, subd. (a)(2)) and rape in concert (id.
§ 264.1) and one count each of assault ( id. § 245, subd. (a)(1)),
false imprisonment (id. §§ 236 and 237, subd. (a)) and sexual
battery (id. § 243.4, subd. (a)). (Further undesignated section
references are to the Penal Code.) In addition, Alberto and Israel
were convicted of kidnapping (§ 207, subd. (a)), while Edgar was
found guilty of the lesser included offense of false imprisonment.
Finally, the jury found as to Alberto and Israel that the rape and
rape in concert offenses had been committed under circumstances
involving a kidnapping and movement of the victim which
substantially increased her risk of harm (§ 667.61).
Alberto and Israel were sentenced to an aggregate determinate term
of five years plus a consecutive indeterminate term of 25 years to
life. Edgar received an aggregate determinate term of 23 years, 8
months.
***

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

The People correctly concede Alberto's two rape convictions
(counts 2 and 4) and the false imprisonment convictions (count 7)
of Israel and Alberto must be vacated. We thus accept those
concessions. We also conclude Edgar's conviction for the lesser
included offense of false imprisonment on count 1 must be
dismissed in light of his conviction for the same offense on count 7.
In all other respects, we affirm the judgments.
Facts and Proceedings
On the evening of August 11, 2006, 16–year–old Antonio S. met
Edgar and Alberto at a school in Dixon and the three smoked
marijuana. Later, Israel joined them and the four departed in
Israel's 4–door Acura. They drove around Dixon for a while and
then headed for Davis. Antonio and Edgar continued to smoke
marijuana in the back seat of the car. At some point during their
drive around Davis, they stopped for gas and Antonio purchased a
bag of Doritos. They then continued their cruise past the local bars.
That same evening, 23–year–old S.L. and some friends went out for
a night of dinner and drinking in downtown Davis.
At
approximately 11:00 p.m., S.L. left her friends and went to another
bar to meet someone. She left that bar at around 1:00 or 1:30 a.m.
2

1

She was intoxicated, tired and wanted to go home. However, her
ride for the evening had already gone home.

2
3
4
5
6

S.L. started walking down the street and thinking how she might
get home. Just then, Israel and the others drove by. They stopped
and asked if S.L. was alright and if she needed help. S.L. said she
wanted to go home and they offered to take her there. S.L.
accepted the offer and told them she lived off Covell and Alvarado
in Davis. She got in the back of the car between Antonio and Edgar
and instructed them to take Highway 113 and exit at Covell. She
repeated that she just wanted to go home. They agreed to take her
home.

7
8
9
10
11
12

A couple of minutes after S.L. got into the car, the men began
passing around a marijuana cigar to smoke. They offered it to S.L.
and she took a puff. Israel proceeded onto Highway 113 but did not
take the Covell exit. As they drove, Antonio began touching S.L.'s
leg and she told him to stop and pushed his hand away. She
repeated that she just wanted to go home.
As they drove away from Davis, S.L. asked where they were going,
but nobody responded. They eventually arrived at a remote area
and drove up a dirt driveway. Israel turned off the car and the car
lights.

13
14
15
16
17
18
19
20

What happened thereafter is less certain. Both S.L. and Antonio
testified at trial and described different versions. According to S.L.,
the four men got out of the car and ordered her out. She refused,
and one of them yelled at her to get out. She got out of the car and
began to cry. S.L. pleaded, “Please don't do this. Please don't. I
beg you, please stop. Don't do this to me.” One of the men pushed
S.L. onto the ground near the car and then someone got on top of
her while the others stood around them in a circle. The man on top
of S.L. told her to take off her skirt. She refused, and he took it off
for her, along with her underpants. S.L. then heard cheering and
laughing and “abrela, abrela,” which means open. S.L. began
moving around trying to get the man off of her and he punched her
in the left eye. He then penetrated her vagina with his penis. The
man remained on top of S.L. for five to seven minutes and then told
her not to tell anyone.

21
22
23
24
25
26
27
28

According to S.L., after the first man got off her another took his
place. He too penetrated her vagina with his penis. This man
pulled down her shirt and bra and squeezed her left breast “very
hard.” After this man got off S.L., the men kicked her in the
stomach and neck. She laid there until she heard the car engine
start and heard them drive away.
Antonio testified pursuant to a plea deal whereby he was permitted
to plead guilty to two felonies with no particular promise as to
sentencing. According to Antonio, after they arrived at the remote
location, S.L. said she was going to be sick and she and Edgar got
out of the car. Israel and Alberto also got out, but Antonio
remained in the car. Edgar held S.L. while she vomited. Israel
eventually walked over to them and took over holding S.L.
3

1

Meanwhile, Alberto took S.L.'s purse out of the car and emptied it
on the trunk. He found condoms inside.

2
3
4
5
6

According to Antonio, Alberto and Edgar eventually joined Israel
and together they removed S.L.'s clothes. Israel and Alberto then
walked S.L. over to a grassy area and laid her down. Alberto threw
Israel a condom taken from S.L.'s purse. Israel got on top of S.L.
and had sexual intercourse with her. According to Antonio, S.L.
did not appear to be a willing participant. He heard her moaning
and yelling “no” and “stop.” After Israel finished, he asked, “Who
is next?” Alberto gave Edgar another condom from S.L.'s purse
and Edgar got on top of S.L. and had sexual intercourse with her.

7
8
9
10
11

At some point during the foregoing, Antonio got out of the car and
smoked a cigarette. He also discarded the empty Doritos bag he
had obtained at the gas station. By the time Edgar finished with
S.L., Antonio was back in the car. After Edgar rejoined the others
at the car, they got in and started to drive away. However, at the
end of the driveway, Alberto told Israel to stop the car. Alberto got
out and was gone four to five minutes. When he returned, he told
them he had beaten S.L. up. On the way home, the others
instructed Antonio not to say anything about what happened.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

After the men left, S.L. blacked out for a short period. When she
awoke, her stomach hurt and she was cold. She got up and started
running from the area for fear that the men might return. In the
distance, she saw the lights of a city and moved in that direction.
She was wearing only her top and shoes. S.L. was eventually
discovered by police officers at 4:45 a.m. walking along County
Road 102. She appeared injured, stated that she had been raped and
pointed in the direction of where it had occurred. She informed the
officers that the rest of her clothes and her purse were still at the
scene.
Officers eventually located the crime scene and found S.L.'s clothes
and purse. They also found an empty Doritos bag, a condom
wrapper, two condoms, and a receipt from one of the bars where
S.L. had been that evening. They located an area where the grass
appeared to be pressed down as if someone had been lying on it.
A fingerprint lifted from the Doritos bag was determined to be a
match to one on file for Antonio. On August 25, officers served a
search warrant at Antonio's home. They picked up Antonio and
took him in for questioning. Antonio admitted picking up S.L. that
evening and indicated three others had been involved. He identified
one of the participants as Alberto Sanchez but provided only first
names, Edgar and Israel, for the other two.
Officers later picked up Alberto, Edgar and Israel and brought them
in for questioning. DNA from one of the condoms found at the
scene was later determined to be a match for Edgar, and DNA from
the other condom was found to be a match for Israel.

27
28

Alberto testified at trial. He admitted picking up S.L. in the early
morning hours of August 12, 2006, and taking her to a remote
4

1

location. According to Alberto, after they arrived at the scene, he
walked over to a gate at the entrance to the driveway and remained
there until they departed 15 minutes later. He claimed not to have
heard or seen anything that was done by the others with S.L.

2
3

As noted previously, Antonio was given a plea deal and testified for
the prosecution. The other three were charged with kidnapping
(count 1), two counts of rape (counts 2 and 4), two counts of rape in
concert (counts 3 and 5), assault (count 6), false imprisonment
(count 7), and sexual battery (count 8). They were also charged
with enhancements on the rape and rape in concert charges for
having kidnapped the victim and having moved her so as to
substantially increase her risk of harm.

4
5
6
7
8

Israel and Alberto were convicted as charged. Edgar was found
guilty on all charges except kidnapping, for which he was instead
convicted of the lesser included offense of false imprisonment. The
jury also found not true as to Edgar all of the enhancements on the
rape and rape in concert charges.

9
10
11

Alberto was sentenced on the assault charge (count 6) to the upper
term of four years and on the sexual battery charge (count 8) to a
consecutive one-third the middle term of one year, for an aggregate
determinate sentence of five years. In addition, Alberto received a
consecutive indeterminate term of 25 years to life for one rape in
concert charge (count 3) and an identical term to run concurrently
on the other rape in concert charge (count 5). Sentence on the
remaining counts was stayed pursuant to section 654. Alberto
received credit for time served of 356 days plus 53 days of conduct
credits, for a total of 409 days.

12
13
14
15
16

Israel received the same sentence as Alberto, except instead of
staying sentence on the rape charges (counts 2 and 4), the court
struck those charges. Israel received credit for time served of 346
days plus 51 days conduct credits, for a total of 397 days.

17
18
19
20

People v. Sanchez, No. C059763, 2011 WL 3806264, at **1-4 (Cal.App. 3 Dist. Aug. 30, 2011).
After the California Court of Appeal affirmed petitioner’s judgment of conviction, he filed

21

a petition for review in the California Supreme Court. Resp’t’s Lodg. Doc. 13. Therein,

22

petitioner raised all of the claims that he raises in the petition before this court. Id. The petition

23

for review was summarily denied. Resp’t’s Lodg. Doc. 14.

24

On February 4, 2013, petitioner filed a petition for writ of habeas corpus in this court.

25

ECF No. 1.

26

II. Standards of Review Applicable to Habeas Corpus Claims

27
28

An application for a writ of habeas corpus by a person in custody under a judgment of a
state court can be granted only for violations of the Constitution or laws of the United States. 28
5

1

U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

2

application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010);

3

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.

4

2000).

5
6
7
8
9
10
11
12

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
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

13

(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.

14

For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

15

holdings of the United States Supreme Court at the time of the last reasoned state court decision.

16

Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S.

17

___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.

18

Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining

19

what law is clearly established and whether a state court applied that law unreasonably.” Stanley,

20

633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit

21

precedent may not be “used to refine or sharpen a general principle of Supreme Court

22

jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall

23

v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155

24

(2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so

25

widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,

26

be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of

27

an issue, it cannot be said that there is “clearly established Federal law” governing that issue.

28

Carey v. Musladin, 549 U.S. 70, 77 (2006).
6

1

A state court decision is “contrary to” clearly established federal law if it applies a rule

2

contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

3

precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

4

Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

5

writ if the state court identifies the correct governing legal principle from the Supreme Court’s

6

decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 1 Lockyer v.

7

Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002

8

(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that

9

court concludes in its independent judgment that the relevant state-court decision applied clearly

10

established federal law erroneously or incorrectly. Rather, that application must also be

11

unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473

12

(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent

13

review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).

14

“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as

15

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

16

Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S.

17

652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

18

court, a state prisoner must show that the state court’s ruling on the claim being presented in

19

federal court was so lacking in justification that there was an error well understood and

20

comprehended in existing law beyond any possibility for fairminded disagreement.” Richter,131

21

S. Ct. at 786-87.

22

If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

23

court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

24

527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

25

(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of

26
27
28

1

Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
7

1

§ 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

2

considering de novo the constitutional issues raised.”).

3

The court looks to the last reasoned state court decision as the basis for the state court

4

judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If

5

the last reasoned state court decision adopts or substantially incorporates the reasoning from a

6

previous state court decision, this court may consider both decisions to ascertain the reasoning of

7

the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When

8

a federal claim has been presented to a state court and the state court has denied relief, it may be

9

presumed that the state court adjudicated the claim on the merits in the absence of any indication

10

or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at 784-85. This

11

presumption may be overcome by a showing “there is reason to think some other explanation for

12

the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,

13

803 (1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims

14

but does not expressly address a federal claim, a federal habeas court must presume, subject to

15

rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___,

16

___, 133 S.Ct. 1088, 1091 (2013).

17

Where the state court reaches a decision on the merits but provides no reasoning to

18

support its conclusion, a federal habeas court independently reviews the record to determine

19

whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

20

Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

21

review of the constitutional issue, but rather, the only method by which we can determine whether

22

a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

23

reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

24

reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.

25

A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

26

Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze

27

just what the state court did when it issued a summary denial, the federal court must review the

28

state court record to determine whether there was any “reasonable basis for the state court to deny
8

1

relief.” Richter, 131 S. Ct. at 784. This court “must determine what arguments or theories ...

2

could have supported, the state court's decision; and then it must ask whether it is possible

3

fairminded jurists could disagree that those arguments or theories are inconsistent with the

4

holding in a prior decision of [the Supreme] Court.” Id. at 786. The petitioner bears “the burden

5

to demonstrate that ‘there was no reasonable basis for the state court to deny relief.’” Walker v.

6

Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).

7

When it is clear, however, that a state court has not reached the merits of a petitioner’s

8

claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

9

habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

10

F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

11

III. Petitioner’s Claims

12

A. Improper Use of Peremptory Challenges

13

In petitioner’s first ground for relief, he claims that his constitutional rights were violated

14

by the prosecutor’s improper use of peremptory challenges to exclude five Hispanics from the

15

jury. ECF No. 1 at 4.2 He argues that “the Prosecutor’s expressed reasons for excusing several

16

Minority jurors were sham, as is evident from a [comparative] Jury Analysis.” Id.

17

1. State Court Decision

18

In a lengthy and thorough opinion, the California Court of Appeal described the

19

background to this claim and its ruling thereon. With citation to People v. Wheeler (1978) 22

20

Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson), it accurately recited

21

the governing law. It noted that after the prosecution exercised its first five peremptory

22

challenges on jurors who self-identified as Hispanic, each defendant raised a Wheeler/Batson

23

challenge and that the prosecution responded with various nondiscriminatory reasons for the

24

peremptory challenges, and the trial court rejected the challenge without prejudice to renewal at a

25

later time. The state appellate court observed that “[i]t is well settled that ‘[a] prosecutor’s use of

26

peremptory challenges to strike prospective jurors on the basis of group bias – that is, bias against

27
28

2

Page number citations such as this one are to the page numbers reflected on the court’s
CM/ECF system and not to page numbers assigned by the parties.
9

1

‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’ ...

2

violates the defendant's right to equal protection under the Fourteenth Amendment to the United

3

States Constitution.” Sanchez, 2011 WL 3806264, at *5. In applying Batson to this record, the

4

state appellate court explained its reasoning as follows:

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

A Wheeler/Batson challenge involves a three-step process. “First,
the trial court must determine whether the defendant has made a
prima facie showing that the prosecutor exercised a peremptory
challenge based on race. Second, if the showing is made, the
burden shifts to the prosecutor to demonstrate that the challenges
were exercised for a race-neutral reason. Third, the court
determines whether the defendant has proven purposeful
discrimination. The ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of the
strike. [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 612–
613.)
Where, as here, the trial court makes no specific finding on whether
the defendant made the required prima facie showing and the
prosecutor explains the basis for her challenge, we proceed to the
second and third steps of the process. (People v. Cowan (2010) 50
Cal.4th 401, 448.)
“A prosecutor asked to explain his conduct must provide a ‘“clear
and reasonably specific” explanation of his “legitimate reasons” for
exercising the challenges.’ [Citation.] ‘The justification need not
support a challenge for cause, and even a “trivial” reason, if
genuine and neutral, will suffice.’ [Citation .] A prospective juror
may be excused based upon facial expressions, gestures, hunches,
and even for arbitrary or idiosyncratic reasons. [Citations.]
Nevertheless, although a prosecutor may rely on any number of
bases to select jurors, a legitimate reason is one that does not deny
equal protection. [Citation.] Certainly a challenge based on racial
prejudice would not be supported by a legitimate reason.” (People
v. Lenix, supra, 44 Cal.4th at p. 613.)
On direct review, the Batson/Wheeler issue “turns largely on an
‘evaluation of credibility.’
[Citation.]
The trial court's
determination is entitled to ‘great deference,’ [citation], and ‘must
be sustained unless it is clearly erroneous,’ [citation].” (Felkner v.
Jackson (2011) 562 U.S. –––– .)
“Credibility can be measured by, among other factors, the
prosecutor's demeanor; by how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some
basis in accepted trial strategy.' [Citation.] In assessing credibility,
the court draws upon its contemporaneous observations of the voir
dire. It may also rely on the court's own experiences as a lawyer
and bench officer in the community, and even the common
practices of the advocate and the office that employs him or her.
[Citation.]” (People v. Lenix, supra, 44 Cal.4th at p. 613, fn.
omitted.)
10

1
2
3
4

“The proper focus of a Batson/Wheeler inquiry is on the subjective
genuineness of the race-neutral reasons given for the peremptory
challenge, not on the objective reasonableness of those reasons.
[Citation.] What matters is that the prosecutor's reason for
exercising the peremptory challenge is legitimate. A ‘“legitimate
reason” is not a reason that makes sense, but a reason that does not
deny equal protection. [Citations.]’ [Citation.]” (People v.
Hamilton, supra, 45 Cal.4th at p. 903.)

5
Prospective Juror Danielle A.
6
7
8
9
10
11
12
13
14
15

The prosecutor exercised her first peremptory challenge on Danielle
A. During the Wheeler/Batson hearing, the prosecutor explained
she did not feel comfortable having Danielle on the jury because
“she herself and her husband have been accused and arrested for
drug offenses.” In her questionnaire, Danielle had answered “yes”
to the question: “Have you, a close friend, or relative ever been
ACCUSED or ARRESTED for a crime, even if the case did not
come to court?” Danielle further indicated the individuals involved
had been herself, her husband and her son and that there had been
no trial. Danielle identified the crimes as “drug possession various
traffic ect. [sic].” In response to the question “What happened?”
Danielle indicated: “probation, jail time, fines ect [sic].” Finally, in
response to the question, “How do you feel about what happened?”
Danielle answered: “Things happened the way they should have[.]
[Y]ou do something then you deserve the consequences of your
actions.”
During voir dire, the court questioned Danielle A. about the prior
offenses as follows:

16
17

“Q. Now, you make reference in one of the questions to the
situation involving yourself, your husband and your son. Were any
charges ever filed in that respect?

18
“A. Traffic, a few, but—
19
“Q. No felonies or misdemeanors?
20
“A. Yes, there were.”
21
22

At the Wheeler/Batson hearing, the trial judge acknowledged that
perhaps he should have been more assertive in questioning her
about the prior offenses but he “didn't want to embarrass her.”

23
24
25
26
27
28

Defendants contend the prosecution had insufficient information
about the prior offenses to use them as a basis for excusing the
potential juror. They point out there was no information about the
age of the offenses, where they occurred, whether there was a
conviction, or whether they involved misdemeanors or felonies.
They argue it is uncertain whether Danielle A., her husband or her
son had been the one involved in the drug offense. Defendants
further argue the prosecutor failed to question the juror about the
offenses, thereby demonstrating this was not the motivating factor
for her challenge.
11

1
2
3
4
5
6
7
8
9
10

The People acknowledge that the exact nature of the charges
against Danielle A. and/or her husband and son is not revealed by
the record but argue the prosecutor need not question a potential
juror if the prosecutor already has enough information to make a
decision on whether to allow the person to remain on the jury.
The People have the better argument. “A prospective juror's
negative experience with the criminal justice system, including
arrest, is a legitimate, race-neutral reason for excusing the juror.”
(People v. Cowan, supra, 50 Cal.4th at p. 450.) This is true
whether it is the juror herself or a family member who was
involved. (See ibid.) And while the age of the offense and whether
it was a misdemeanor or a felony may be relevant considerations,
they are not determinative. Hence, while a failure to engage in
meaningful voir dire can in some important circumstances, be
circumstantial evidence suggesting pretext (People v. Lomax (2010)
49 Cal.4th 530, 573), we agree with the People it was not necessary
in this instance for the prosecution to ascertain the details of the
prior offenses of Danielle A. or her family in order to use this as a
legitimate basis for a peremptory challenge.

11
12
13
14
15
16

Defendants argue the pretextual nature of the prosecutor's stated
rationale is revealed in her failure to challenge two similarly
situated non-Hispanic jurors, Jurors No. 1 and 11. “‘If a
prosecutor's proffered reason for striking a [Hispanic] panelist
applies just as well to an otherwise-similar [non-Hispanic] who is
permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered’” in the third step of the
Wheeler/Batson analysis. (People v. Lomax, supra, 49 Cal.4th at
pp. 571–572.) In this instance, Juror No. 1's father had been
accused of sexual misconduct, and Juror No. 11 had received a
speeding ticket “for no reason.”

17
18
19
20
21
22
23
24
25
26

The People counter that Jurors No. 1 and 11 were not similarly
situated to Danielle A., because elsewhere in their questionnaires
they demonstrated a pro-prosecution or pro-victim bias. Juror No.
11 stated the following about the crimes charged in the instant case:
“Rape is a very serious and terrible crime that should be punished
fully.” He also indicated a friend had previously been raped, but no
charges had been filed and expressed a belief that rape is an
underreported crime because of fear. Juror No. 1 disclosed that he
had been a victim of sexual assault throughout his childhood, but no
charges had ever been filed.
Again, we agree with the People. While Juror No. 1's father may
have been accused of sexual misconduct, it also appears Juror No. 1
may have been the victim. Thus, he can hardly be considered one
who believes his family may have been unjustly accused. And
while Juror No. 11 did indicate he had been unjustly accused of
speeding, he also demonstrated affinity to victims of the crimes
charged in this matter. Thus, he too was not necessarily one who
would have a bias against law enforcement.

27
28

The record supports a race-neutral basis for the prosecutor's
challenge of Danielle A.
12

1

Prospective Juror Carlos H.

2

The prosecutor exercised her second peremptory challenge on
potential Juror Carlos H. The prosecutor based this challenge on
the following factors: (1) as a teenager, Carlos had been kicked off
of a ladder by a border patrol officer who was chasing illegal aliens;
(2) Carlos had a bad experience with law enforcement in the
resolution of a case where his grandson was the victim; (3) Carlos's
uncle had been accused of and arrested for drug addiction; (4)
Carlos believes some additional evidence is needed to support the
testimony of a witness; and (5) Carlos's brother was accused of
sexual assault. Each of these factors is supported by Carlos's
questionnaire responses.

3
4
5
6
7
8
9
10
11
12

Defendants argue the incident with the ladder, which occurred 42
years earlier, cannot serve as a valid basis for challenging the
potential juror and the factor involving the grandson as a victim
actually cuts against the defense, not the prosecution. They further
argue the prosecutor's failure to question Carlos H. about any of
these factors reveals their pretextual nature. Finally, defendants
argue the prosecutor failed to challenge similarly situated jurors
who had had negative experiences with law enforcement or
expressed a belief that additional evidence is necessary to
corroborate the testimony of a witness.

13
14
15
16
17
18
19
20

Given the many factors cited by the prosecutor, she cannot be
faulted for failing to question the potential juror. There was
certainly enough from the questionnaire alone to support the
challenge. As for the age of the ladder incident, this merely goes to
the weight of the factor. And while the fact the potential juror's
grandson was the victim of an unsolved robbery may have biased
him against criminal defendants in general, the prosecutor was free
to surmise this would also bias him against law enforcement who
failed to solve the crime. Finally, as to similarly-situated jurors,
defendants point to none who have the same or similar combination
of factors as Carlos H. Thus, there were no similarly-situated
jurors.
The record supports the prosecutor's peremptory challenge of
Carlos H.

21
Prospective Juror Sarah H.
22
23
24

The prosecution's next challenge was to Sarah H. The prosecutor
cited two factors supporting that challenge: (1) Sarah had had a
negative experience with law enforcement; and (2) she had once
been arrested for assault and had been required to convince the
judge of her innocence.

25
26
27
28

In her questionnaire, Sarah H. answered “yes” to the question
whether she ever had a particularly bad experience with law
enforcement officials. She explained: “A police officer, without his
lights on, ran a red light in Davis and almost hit me while I was in
the intersection. He then tried to pull me over and give me a
speeding ticket when I was not speeding. He let me go after seeing
13

1
2
3
4

I was not alone in my vehicle and I demanded his badge number.”
Elsewhere in the questionnaire, Sarah indicated that, in 2004, she
had been accused or arrested for assault by an ex-girlfriend and
“had to prove [her] innocence and try to convince the judge that
[the ex-girlfriend] had fabricated the story.” As to how she felt
about this experience, Sarah explained: “I feel that anyone can be
accused of something they didn't do and are treated like a criminal
even when the police report states otherwise.”

5
6
7
8
9
10
11
12
13

Defendants contend the two grounds mentioned by the prosecutor,
although supported by the questionnaire responses, were not in fact
what motivated the challenge. They point to the fact the prosecutor
failed to ask Sarah H. any questions about these two items and
failed to challenge other jurors who had had negative experiences
with law enforcement. In addition, defendants point out “the
prosecutor completely ignored other significant grounds which
were likely sufficient to support a challenge for cause . . . .” For
example, Sarah indicated in her questionnaire that she “can never
say someone is guilty unless [she has] personally witnessed them
commit the crime.” She expressed a belief “that law enforcement
operates by racial profiling” and indicated she did not believe she
could be “open minded to judging a stranger.” According to
defendants, the prosecutor's failure to mention these other potential
grounds for challenge “is consistent with the conclusion that the
strike was motivated by a discriminatory purpose rather than an
assessment of the relevant characteristics of the prospective juror.”

14
15
16
17
18

As discussed above, the fact the prosecutor did not also challenge
Jurors No. 1 and 11, who had had negative experiences with law
enforcement, does not render the prosecutor's use of this factor in
challenging Sarah H. suspect. Those other jurors had other
questionnaire responses that suggested a pro-prosecution or provictim bias. And as for the prosecutor's failure to question Sarah,
such questioning is unnecessary if the questionnaire response
provides sufficient information. Sarah was fairly clear in her
questionnaire responses regarding the nature of the prior incidents.

19
20
21
22
23
24
25
26

As for the prosecutor's failure to mention other valid grounds for
excusing Sarah H., we note that the hearing on defendants'
Wheeler/Batson motion took place the morning after the prosecutor
made the various peremptory challenges at issue here. When asked
to comment on the basis for the challenges, the prosecutor began:
“It might take me a minute because I took out this morning all of
my Post–It notes in all the areas in justifying these particular areas.”
In other words, the prosecutor no longer had the notes she used the
day before to assist her in deciding who to challenge. Therefore, it
is not surprising that the prosecutor might not recall all of the
grounds she used to warrant each of the challenges, and no
particular inference should be drawn from this circumstance.
We conclude the record supports the prosecutor's peremptory
challenge of Sarah H.

27
28
14

1

Prospective Juror Maria C.

2

The next potential juror to be challenged by the prosecution was
Maria C. The prosecutor explained she was concerned with Maria's
response to a question about aider and abettor liability. That
question asked: “The law says that someone who aids or abets a
crime is equally liable for having committed that offense. Is there
anyone who has a problem with the concept of law that holds
someone who aids, facilitates, promotes, encourages, or instigates a
crime is equally liable for having committed that crime?” Maria
answered “yes” and explained: “[T]hey can be lying and blaming
someone else.”

3
4
5
6
7
8
9
10

During voir dire, the prosecutor questioned Maria C. about this
questionnaire response as follows:
“Ms. [C.], with regard to your questions on aiding and abetting, you
indicated that you do have a problem with the concept that
somebody who aids and abets a crime as being each legally liable
for that crime. Is that a fair reading of your answer?

11
“A. I am not sure. I didn't understand that question really.
12

14

“Q. If the law were to tell you that helping or promoting or
encouraging a crime that is committed, you are responsible for that
crime that was committed, even if you are not the person who
actually committed it. Do you have a problem with that?

15

“A. No.

16

“Q. And is that with regards to any type of crime or would you
compartmentalize?

13

17
18

“In other words, do you know what I mean by that? Would you
follow the law with regards to that?

19

“A. Yes.

20

“Q. And would you follow the law on everything?

21

“A. Yes.”

22

Defendants contend the questionnaire response, when viewed in
light of the voir dire answers, does not reflect confusion over the
concept of aiding and abetting but confusion over the wording of
the question itself and a concern that one defendant may be lying in
order to get someone else in trouble. They further argue Maria C.
provided other questionnaire responses that reflect a proprosecution bias, and the prosecutor failed to excuse another
potential juror, Henry B., who likewise answered “yes” to the
question whether anyone has a problem with aiding and abetting
liability.

23
24
25
26
27
28

We agree the wording of the question could have been clearer.
Read literally, the question asked whether “anyone” had a problem
15

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

with aiding and abetting liability. It may reasonably be assumed
there is someone in the world who has a problem with holding an
aider and abettor equally liable for a crime. But it does not appear
Maria C. read the question literally. She expressed a concern that
one defendant may point the finger at another to get the other in
trouble without any basis in fact. This, of course, could be a
potential concern for the prosecution, which intended to use the
testimony of one of the perpetrators against the others. Thus,
Maria's response raised less of a concern about her willingness to
hold aiders and abettors equally liable than a concern with her
willingness to accept the testimony of a coconspirator.
As for other questionnaire responses that purportedly reveal a proprosecution bias, we do not share defendants' interpretation of those
responses. Maria C. answered “yes” to the question whether a
police officer's testimony will be more truthful than that of a
civilian witness. She explained: “Sometimes the police either have
seen what the civilian done [sic] or has a witness for proof.” Aside
from the incoherence of this explanation, it does not appear to
reveal a pro-police bias so much as a belief that police may be more
truthful simply because they either saw what happened themselves
or have a corroborating witness. In other words, it is not that police
officers are more truthful, it is just that they often have more firsthand knowledge.

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

In response to a question about whether the fact charges have been
filed against the defendants causes her to conclude they are more
likely guilty than not guilty, Maria C. answered “yes,” but
explained, “because depending on what that person has done.” This
explanation makes no sense in the context and, therefore, provides
little or no guidance on the issue.
Maria C. indicated the testimony of one witness would be enough
for a conviction, but then followed up by answering “yes” to the
question whether she would require additional evidence to
corroborate the testimony of a witness. Likewise, Maria expressed
a belief that cases of sexual assault are over-reported but then
explained that such cases are nevertheless important and that the
law regarding sexual assault “could be a little too weak.” In our
view, the foregoing responses do not reveal a pro-prosecution or
anti-prosecution bias.
Finally, as to the prosecutor's failure to excuse Henry B., who also
answered “yes” to the question about anyone having a problem with
aider and abettor liability and explained that “[t]his will very [sic]
from case to case,” we note that defendants themselves excused
Henry B. just before the prosecutor excused Maria C. Hence, we
have no way of knowing if the prosecutor would have challenged
Henry B. as well.
We conclude the record supports the prosecutor's peremptory
challenge to Maria C.

27
28
16

1

Prospective Juror Monica V.

2

The last potential juror to be excused by the prosecution before the
Wheeler/Batson motion was Monica V. The prosecutor identified
the following factors informing her decision: (1) Monica is young;
(2) she has no children; (3) a police officer once battered her father;
and (4) she believes someone who accepts a ride from strangers is
responsible for what happens to them.
According to the
questionnaire, Monica was 26 years old and had no children. She
explained the incident with her father as follows: “A police officer
battered my dad in Los Angeles . . . he sat my dad in hot the curb
[sic] and my dad was wearing shorts my dad slide front [sic] to try
to move from the hot curb and the police hit my dad really bad.”
She answered “yes” to the question whether she believes one who
accepts a ride from a stranger is responsible for whatever happens
to them, and explained: “Because you decided to accept the ride so
you are responsible if anything happens.”

3
4
5
6
7
8
9
10

Defendants contend the factors cited by the prosecutor did not in
fact motivate the peremptory challenge, inasmuch as the prosecutor
failed to challenge non-Hispanic jurors who were young and had no
children, had had negative experiences with law enforcement, or
indicated that a person who accepts a ride from a stranger is
responsible for what happens to them. However, while it may be
true that the prosecutor failed to excuse certain jurors whose
questionnaire responses revealed circumstances similar to Monica
V. as to age, lack of children, prior experiences with law
enforcement, or responsibility of one who accepts a ride from a
stranger, defendants cite no juror who had the same combination of
these factors.

11
12
13
14
15
16

While comparative juror analysis is certainly relevant in assessing
the third step of the Wheeler/Batson analysis, “‘we are mindful that
comparative juror analysis on a cold appellate record has inherent
limitations.’ [Citation.] In addition to the difficulty of assessing
tone, expression and gesture from the written transcript of voir dire,
we attempt to keep in mind the fluid character of the jury selection
process and the complexity of the balance involved. ‘Two panelists
might give a similar answer on a given point. Yet the risk posed by
one panelist might be offset by other answers, behavior, attitudes or
experiences that make one juror, on balance, more or less desirable.
These realities, and the complexity of human nature, make a
formulaic comparison of isolated responses an exceptionally poor

17
18
19
20
21
22
23

medium to overturn a trial court's factual finding.’ [Citation.]”
(People v. Taylor (2009) 47 Cal.4th 850, 887.)

24
We cannot say on the record before us that the trial court erred in
concluding the prosecutor utilized a valid, race-neutral rationale for
excusing Monica V. We therefore conclude the trial court did not
err in denying defendants' Wheeler/Batson motion.

25
26
27

Sanchez, 2011 WL 3806264, at **4-12.

28

/////
17

1
2

2. Legal Standards Regarding Petitioner’s Batson Claim
Purposeful discrimination on the basis of race or gender in the exercise of peremptory

3

challenges violates the Equal Protection Clause of the United States Constitution. See Batson,

4

476 U.S. at 79; Johnson, 545 U.S. at 62. So-called Batson claims are evaluated pursuant to a

5

three-step test:

6
7
8
9
10
11
12
13
14

First, the movant must make a prima facie showing that the
prosecution has engaged in the discriminatory use of a peremptory
challenge by demonstrating that the circumstances raise “an
inference that the prosecutor used [the challenge] to exclude
veniremen from the petit jury on account of their race.” [Citation
omitted.] Second, if the trial court determines a prima facie case
has been established, the burden shifts to the prosecution to
articulate a [gender]-neutral explanation for challenging the juror in
question. [Citation omitted.] Third, if the prosecution provides
such an explanation, the trial court must then rule whether the
movant has carried his or her burden of proving the existence of
purposeful discrimination.
Tolbert v. Page, 182 F.3d 677, 680 (9th Cir. 1999) (en banc).
In order to establish a prima facie case of racial discrimination, petitioner must show that

15

“(1) the prospective juror is a member of a “cognizable racial group,” (2) the prosecutor used a

16

peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference

17

that the strike was motived by race.” Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006)

18

(citing Batson, 476 U.S. at 96 and Cooperwood v. Cambra, 245 F.3d 1042, 1045-46 (9th Cir.

19

2001)). A prima facie case of discrimination “can be made out by offering a wide variety of

20

evidence, so long as the sum of the proffered facts gives ‘rise to an inference of discriminatory

21

purpose.’” Johnson, 545 U.S. at 169 (quoting Batson, 476 U.S. at 94.) Both Hispanics and

22

African-Americans constitute cognizable groups for Batson purposes. Fernandez v. Roe, 286

23

F.3d 1073, 1077 (9th Cir. 2002).

24

At the second step of the Batson analysis, “the issue is the facial validity of the

25

prosecutor’s explanation.” Hernandez v. New York, 500 U.S. 352, 360 (1991). “A neutral

26

explanation in the context of our analysis here means an explanation based on something other

27

than the race of the juror.” Id. at 360. “Unless a discriminatory intent is inherent in the

28

prosecutor’s explanation, the reason offered will be deemed race-neutral.” Stubbs v. Gomez, 189
18

1

F.3d 1099, 1105 (9th Cir. 1999) (quoting Hernandez, 500 U.S. at 360). For purposes of step two,

2

the prosecutor’s explanation need not be “persuasive, or even plausible.” Purkett v. Elem, 514

3

U.S. at 765, 768 (1995). Indeed, “to accept a prosecutor’s stated nonracial reasons, the court need

4

not agree with them.” Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir. 2006).

5

In the third step of a Batson challenge, the trial court has “the duty to determine whether

6

the defendant has established purposeful discrimination,” Batson, 476 U.S. at 98, and, to that end,

7

must evaluate the “persuasiveness” of the prosecutor’s proffered reasons. See Purkett, 514 U.S.

8

at 768. In determining whether petitioner has carried this burden, the Supreme Court has stated

9

that “a court must undertake ‘a sensitive inquiry into such circumstantial and direct evidence of

10

intent as may be available.’” Batson, 476 U.S. at 93 (quoting Arlington Heights v. Metro. Hous.

11

Dev. Corp., 429 U.S. 252, 266 (1977)); see also Hernandez, 500 U.S. at 363. “[A]ll of the

12

circumstances that bear upon the issue of racial animosity must be consulted.” Snyder v.

13

Louisiana, 552 U.S. 472, 478 (2008). See also Cook v. Lemarque, 593 F.3d 810, 814 (9th Cir.

14

2010) (citation and internal quotation marks omitted) (stating the “totality of the relevant facts”

15

should be considered “to decide whether counsel’s race-neutral explanation . . . should be

16

believed.”). In step three, the court “considers all the evidence to determine whether the actual

17

reason for the strike violated the defendant’s equal protection rights.” Yee v. Duncan, 463 F.3d

18

893, 899 (9th Cir. 2006).

19

A prosecutor’s reasons for striking a juror may be “founded on nothing more than a trial

20

lawyer’s instincts about a prospective juror . . . so long as they are the actual reasons for the

21

prosecutor’s actions.” United States v. Power, 881 F.2d 733, 740 (9th Cir. 1989) (quoting United

22

States v. Chinchilla, 874 F.2d 695, 699 (9th Cir. 1989)). “Excluding jurors because of their

23

profession, or because they acquitted in a prior case, or because of a poor attitude in answer to

24

voir dire questions is wholly within the prosecutor’s prerogative.” United States v. Thompson,

25

827 F.2d 1254, 1260 (9th Cir. 1987). It is not improper for a prosecutor to rely on his instincts

26

with respect to the voir dire process. See Power, 881 F.2d at 740 (quoting Chinchilla, 874 F.2d at

27

699). In short, instinct and subjective factors have a legitimate role in the jury selection process.

28

/////
19

1

Miller-El, 545 U.S. at 252; Burks, 27 F.3d at 1429, n.3 (“peremptory strikes are a legitimate

2

means for counsel to act on . . . hunches and suspicions”).

3

The defendant in the criminal prosecution bears the burden of persuasion to prove the

4

existence of unlawful discrimination. Batson, 476 U.S. at 93. “This burden of persuasion ‘rests

5

with, and never shifts from, the opponent of the strike.’” Johnson, 545 U.S. at 2417 (quoting

6

Purkett, 514 U.S. at 768).

7

“Any constitutional error in jury selection is structural and is not subject to harmless error

8

review.” Williams v. Runnels, 640 F.Supp.2d 1203, 1210 (C.D. Cal. 2010) (citing Windham v.

9

Merkle, 163 F.3d 1092, 1096 (9th Cir. 1998) and Turner v. Marshall, 121 F.3d 1248, 1254 n.3

10

(9th Cir. 1997). See also Gray v. Mississippi, 481 U.S. 648, 668 (1987) (stating that among those

11

constitutional rights so basic “that their infraction can never be treated as harmless error” is a

12

defendant's “right to an impartial adjudicator, be it judge or jury”) (citation and internal

13

quotations omitted); Williams v. Woodford, 396 F.3d 1059, 1072 (9th Cir. 2005) (“because a

14

Batson violation is structural error, actual harm is presumed to have resulted from the alleged

15

constitutional violation”).

16
17

3. Analysis
This court need not address the preliminary issue of whether petitioner established a prima

18

facie case of purposeful discrimination because both the state trial and appellate courts ruled on

19

the ultimate question of intentional discrimination under the Batson analysis. Hernandez, 500

20

U.S. at 359; United States v. Gillam, 167 F.3d 1273, 1278 (9th Cir. 1999). The trial judge

21

apparently concluded that petitioner established a prima facie case of racial discrimination

22

because he asked the prosecutor to respond to defendants’ Batson motion. Reporter’s Transcript

23

on Appeal (RT) at 105. The sole issue before this court, therefore, is whether the California

24

courts unreasonably concluded that petitioner failed to meet his ultimate burden of establishing

25

that the prosecutor’s challenges were motivated by racial discrimination under the third step of

26

the Batson analysis.

27
28

In evaluating habeas petitions premised on step three of a Batson violation, the standard of
review is “doubly deferential: unless the state appellate court was objectively unreasonable in
20

1

concluding that a trial court’s credibility determination was supported by substantial evidence, we

2

must uphold it.” Jamerson v. Runnels, 713 F.3d 1218, 1225 (9th Cir. 2013) (citations omitted).

3

This court can only grant petitioner’s Batson claim “if it was unreasonable to credit the

4

prosecutor’s race-neutral explanations for the Batson challenge.” Rice v. Collins, 546 U.S. 333,

5

338 (2006). In this case, when asked, the prosecutor expressed a neutral, reasonable basis for the

6

use of her peremptory challenges of all five of the Hispanic jurors. RT at 105-07. The

7

prosecutor’s reasons were “clear and reasonably specific” and were “related to the particular case

8

to be tried.” Purkett, 514 U.S. at 768-69. They are also supported by the record. The California

9

Court of Appeal analyzed each juror’s answers to the juror questionnaire, the prosecutor’s voir

10

dire of each stricken juror, and the characteristics of other similar jurors who were not stricken.

11

After a thorough comparison, the court concluded that the record supported a race-neutral basis

12

for each strike. This court has also reviewed the record and agrees with the characterization of

13

the Court of Appeal with respect to the characteristics of the other jurors on the panel who were

14

not stricken by the prosecutor.

15

The fact that one or more of the prosecutor’s proffered reasons for striking the Hispanic

16

jurors also applied to other jurors who were not stricken is “evidence tending to prove purposeful

17

discrimination to be considered at Batson’s third step.” Miller-El, 545 U.S. at 241. However, the

18

fact that an excused juror shares one or more characteristics with seated jurors does not end the

19

inquiry into discrimination in jury selection, nor does it establish that the prosecutor was acting

20

with discriminatory intent. Rather, the court must evaluate the “totality of the relevant facts” to

21

decide whether “counsel’s race-neutral explanation for a peremptory challenge should be

22

believed.” Ali v. Hickman, 584 F.3d 1174, 1180 (9th Cir. 2009). For the reasons stated by the

23

California Court of Appeal, the similarities between the stricken jurors and several of the seated

24

jurors do not undermine the prosecutor’s stated reason for excusing the five Hispanic jurors.

25

This court also notes that petitioner’s jury did contain one Hispanic juror. Although not

26

decisive, “[t]he fact that African-American jurors remained on the panel ‘may be considered

27

indicative of a nondiscriminatory motive.’” Gonzalez v. Brown, 585 F.3d 1202, 1210 (9th Cir.

28

2009) (quoting Turner v. Marshall, 121 F.3d 1248, 1254 (9th Cir. 1997)). See also Burks v.
21

1

Borg, 27 F.3d 1424, 1429 (9th Cir. 1994) (fact that jury contained an African-American member

2

is “a valid, though not necessarily dispositive, consideration in determining whether a prosecutor

3

violated Batson”).

4

After reviewing the record, this court finds that the state court’s disposition of petitioner’s

5

Batson claim is not contrary to or an unreasonable application of clearly established federal law

6

nor did it result in a decision that is based on an unreasonable determination of the facts in light of

7

the evidence presented in the state court proceeding. The record reflects that the state trial judge

8

performed an adequate evaluation of the prosecutor’s reasons for challenging the Hispanic jurors

9

and appropriately denied petitioner’s Batson/Wheeler motion. After a review of the entire

10

relevant record, the court agrees with the state court that the prosecutor’s stated reasons for her

11

exclusion of five Hispanic jurors were her genuine reasons for exercising a peremptory strike,

12

rather than a pretext invented to hide purposeful discrimination. Petitioner has failed to carry his

13

burden of proving the existence of unlawful discrimination with respect to the prosecutor’s

14

challenge to these jurors. Accordingly, he is not entitled to relief on this claim.

15

B. Violation of Right to Confrontation/Trial Severance

16

In his next ground for relief, petitioner claims that the denial of his motion for a trial

17

severance and the admission at a joint trial of the redacted police statements of co-defendants

18

Israel Sanchez and Alberto Sanchez violated his right to a fair trial and to confront the witnesses

19

against him. ECF No. 1 at 4. He further argues the trial court’s error in admitting these

20

statements was not cured by a limiting instruction given by the trial court. ECF No. 22 at 10.3

21

/////

22
23
24
25
26
27
28

3

That limiting instruction read as follows: “You have heard evidence that the defendants
made statements out of court and before trial. You may consider that evidence only against the
declarant and not against any other defendant,” Clerk’s Transcript on Appeal (CT) at 978.
However, immediately preceding the introduction into evidence of the audiotapes containing
Israel and petitioner’s police statements, the trial court misread the instruction and informed the
jury that “these statements may be used as evidence only against the defendant and not against
other defendants.” RT at 1301, 1303. Petitioner argues that “the court erroneously instructed the
jury that the pretrial statements of a defendant could only be considered as evidence against a
defendant.” ECF No. 22 at 10. This limiting instruction was correctly conveyed to the jury later
during the giving of jury instructions.
22

1
2

1. State Court Decision
Following the defendants’ arrests, each was interviewed by the police and the interviews

3

were recorded. The prosecution sought to introduce those recording at defendants’ joint trial.

4

The California Court of Appeal observed that under the Sixth and Fourteenth Amendments to the

5

United States Constitution, a criminal defendant has a right “to be confronted with the witnesses

6

against him.” Sanchez, 2011 WL 3806264, at *12 (citing U.S. CONST., amend. VI, and Pointer v.

7

Texas, 380 U.S. 400 (1965)). The court noted that the “central concern” of this right is “to ensure

8

the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in

9

the context of an adversary proceeding before the trier of fact.” Id. (citing Maryland v. Craig,

10

497 U.S. 836, 845 (1990)). It also noted that the confrontation clause applies to hearsay

11

statements that are “‘testimonial’ in nature, including statements made during police

12

interrogation.’” Id. (quoting Crawford v. Washington, 541 U.S. 36 (2004) (Crawford)). It also

13

acknowledged that such hearsay may be admitted at trial only if the declarant is unavailable and

14

the defendant has had a previous opportunity to cross-examine the declarant. Id. The petitioner

15

argued that the trial court should have severed the trials because of the cross-incrimination of the

16

defendants’ out-of-court statements and that the failure to do so violated petitioner’s right of

17

confrontation under the Sixth Amendment. The California Court of Appeal rejected that

18

argument, reasoning as follows:

19
20
21
22
23
24
25
26
27
28

In People v. Aranda (1965) 63 Cal.2d 518 (Aranda), the California
Supreme Court held that when the prosecution seeks to introduce an
extrajudicial statement of one defendant that implicates other
defendants, the trial court has three options: (1) in a joint trial,
delete any direct or indirect identification of codefendants from the
statement; (2) grant a severance; or (3) if severance is denied and
effective deletion is impossible, exclude the statement altogether.
(Id. at pp. 530–531.) In Bruton v. United States (1968) 391 U.S.
123 (Bruton), the United States Supreme Court held that
introduction of an incriminating extrajudicial statement by a
codefendant violates the defendant's confrontation right, even
where the jury is instructed to disregard the statement in
determining the defendant's guilt or innocence.
Edgar moved in limine to exclude the pretrial statements of his
codefendants. He argued any statements by the other defendants
implicating him would have to be redacted in a joint trial and,
therefore, the court had three options: (1) separate trials, (2)
redaction, or (3) separate juries. Edgar further argued “there is no
23

1
2
3
4
5
6

reasonable means by which the People can redact the statements” of
the other defendants. By inference, Edgar argued that if the court
was inclined to admit the pretrial statements, it was required either
to sever or to use separate juries. Israel and Alberto joined in
Edgar's motion.
The trial court refused to sever the defendants' trials and,
apparently, did not consider using separate juries. Thus, the court
relied on redaction to protect defendants' constitutional rights. The
court instructed the jury that the pretrial statements of a given
defendant could only be considered as evidence against that
defendant.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Defendants present a multi-pronged attack on the trial court's
decision to try them jointly and to permit introduction of redacted
versions of their out-of-court statements. They contend the court
had essentially two choices, separate trials or exclusion of the
statements altogether. They argue the redacted versions of the
custodial interviews did not adequately eliminate references to
codefendants, as required by Aranda/Bruton. Israel further argues
the court erred in excluding from his custodial interview various
exculpatory statements, which he was entitled to have admitted in
evidence. As we shall explain, we find no abuse of discretion in
denying defendants' motion to sever or in admitting redacted
versions of defendants' out-of-court statements.
“When two or more defendants are jointly charged with any public
offense, whether felony or misdemeanor, they must be tried jointly,
unless the court order [sic] separate trials.” (§ 1098.) Under this
provision, the Legislature has stated a preference for joint trial of
codefendants charged with the same offense. At the same time, the
trial court retains discretion to grant separate trials. (People v.
Cummings (1993) 4 Cal.4th 1233, 1286.)
“The court should separate the trial of codefendants ‘in the face of
an incriminating confession, prejudicial association with
codefendants, likely confusion resulting from evidence on multiple
counts, conflicting defenses, or the possibility that at a separate trial
a codefendant would give exonerating testimony.’” (People v.
Turner (1984) 37 Cal.3d 302, 312, overruled on other grounds in
People v. Anderson (1987) 43 Cal.3d 1104, 1149–1150.) “Whether
denial of a motion to sever the trial of a defendant from that of a
codefendant constitutes an abuse of discretion must be decided on
the facts as they appear at the time of the hearing on the motion
rather than on what subsequently develops.” (People v. Isenor
(1971) 17 Cal.App.3d 324, 334.)

24
25
26
27
28

Defendants contend the trial court erred in failing to sever their
trials. However, the only ground asserted for separate trials was the
cross-incrimination of defendants' out-of-court statements. This is
also the basis for defendants' separate contention that the trial court
erred in admitting redacted versions of those statements. Thus, the
resolution of both issues turns on whether the redacted versions of
defendants' out-of-court statements eliminated any crossincrimination.
24

1
2
3
4

In Bruton, two defendants – Evans and Bruton – were tried jointly
for robbery. Evans did not testify, but the prosecution introduced
into evidence Evans's confession in which he stated he and Bruton
committed the robbery. (Bruton, 391 U.S. at p. 124.) The trial
judge instructed the jury it could consider the confession only as
evidence against Evans. (Id. at p. 125.) The United States Supreme
Court held that, despite the limiting instruction, the introduction of
Evans's out-of-

5
6
7
8
9
10
11
12

court confession violated Bruton's Sixth Amendment right to crossexamine witnesses. (Id. at p. 137.)
In Richardson v. Marsh (1987) 481 U.S. 200 (Richardson), Marsh
and Williams were jointly tried for murder and the prosecution
introduced a redacted confession by Williams that omitted all
references to Marsh and all indications that anyone other than
Williams and a third person named Martin participated in the crime.
(Id. at p. 202–203.) The trial court instructed the jury not to
consider the confession against Marsh. (Id. at p. 205.) As redacted,
the confession indicated Williams and Martin had discussed the
murder in the front seat of a car while they traveled to the victim's
home. (Id. at pp. 203–204.) However, later in the trial, Marsh
testified that she was in the back seat of the car at the time. (Id. at
p. 204.)

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

The Supreme Court held the redacted confession of Williams fell
outside the scope of Bruton and was admissible (with an
appropriate limiting instruction). The court distinguished the
confession in Bruton as one that was “incriminating on its face,”
and had “expressly implicat[ed]” Bruton. (Richardson, 481 U.S. at
p. 208.) By contrast, Williams's confession in Richardson
amounted to “evidence requiring linkage” in that it “became”
incriminating in respect to Marsh “only when linked with evidence
introduced later at trial.” (Ibid.) According to the court: “[T]he
Confrontation Clause is not violated by the admission of a
nontestifying codefendant's confession with a proper limiting
instruction when . . . the confession is redacted to eliminate not only
the defendant's name, but any reference to his or her existence.”
(Id. at p. 211].)
In Gray v. Maryland (1998) 523 U.S. 185 (Gray), Gray and Bell
were tried jointly for the murder of Stacey Williams. Bell did not
testify at trial. However, the trial court permitted the prosecution to
introduce a redacted version of Bell's confession. In the original,
Bell indicated he, Gray and a third person, Vanlandingham,
participated in the beating that led to Williams's death. The police
detective who read the confession into evidence substituted the
word “deleted” or “deletion” wherever the names of Gray and
Vanlandingham appeared.
Immediately after the redacted
confession was read to the jury, the prosecutor asked, “after he gave
you that information, you subsequently were able to arrest Mr.
Kevin Gray; is that correct?” The officer responded, “That's
correct.” (Id. at pp. 188–189.) The prosecution produced other
witnesses who said that six persons, including Bell, Gray, and
Vanlandingham, participated in the beating. The trial judge
25

1

instructed the jury that the confession was evidence against Bell
alone. (Id. at p. 189.)

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

The Supreme Court concluded the redaction was inadequate under
the circumstances because, although the names of the other
participants were eliminated, the redacted version continued to refer
directly to the existence of the nonconfessing defendant. (Gray,
supra, 523 U.S. at p. 192.) The court explained: “Redactions that
simply replace a name with an obvious blank space or a word such
as ‘deleted’ or a symbol or other similarly obvious indications of
alteration . . . leave statements that, considered as a class, so
closely resemble Bruton's unredacted statements that, in our view,
the law must require the same result.” (Id. at p. 192.) According to
the court: “Bruton's protected statements and statements redacted to
leave a blank or some other similarly obvious alteration, function
the same way grammatically. They are directly accusatory. Evans'
statement in Bruton used a proper name to point explicitly to an
accused defendant . . . . The blank space in an obviously redacted
confession also points directly to the defendant, and it accuses the
defendant in a manner similar to Evans' use of Bruton's name or to
a testifying codefendant's accusatory finger. By way of contrast,
the factual statement at issue in Richardson – a statement about
what others said in the front seat of a car – differs from directly
accusatory evidence in this respect, for it does not point directly to a
defendant at all.” (Id. at p. 194.)
In Gray, the Supreme Court noted that Richardson placed outside
the scope of Bruton those statements that incriminate inferentially.
(Gray, supra, 523 U.S. at p. 195.) However, the court cautioned
that not all such statements fall outside Bruton. According to the
court: “[I]nference pure and simple cannot make the critical
difference, for if it did, then Richardson would also place outside
Bruton's scope confessions that use shortened first names,
nicknames, descriptions as unique as the ‘red-haired, bearded, oneeyed man-with-a-limp,’ [citation], and perhaps even full names of
defendants who are always known by a nickname. This Court has
assumed, however, that nicknames and specific descriptions fall
inside, not outside, Bruton's protection. [Citation.] . . . [¶] That
being so, Richardson must depend in significant part upon the kind
of, not the simple fact of, inference. Richardson's inferences
involved statements that did not refer directly to the defendant
himself and which became incriminating ‘only when linked with
evidence introduced later at trial.’ [Citation.] The inferences at
issue here involve statements that, despite redaction, obviously
refer directly to someone, often obviously the defendant, and which
involve inferences that a jury ordinarily could make immediately,
even were the confession the very first item introduced at trial.”
(Id. at pp. 195–196.)

25
26
27

Defendants point to a number of statements in the redacted versions
of their interview statements that, they argue, continue to implicate
the others in the crimes. Thus, they contend, introduction of the
redacted versions violated Aranda/Bruton. We shall consider the
interview statements of each defendant in turn.

28
26

1

Israel Sanchez

2

In his interview with police, Israel initially denied ever being in
Davis, but then acknowledged that he was in Davis around 11:00
p.m. in his car and saw a “drunk ass girl” come out of one of the
bars. Israel told the officers the woman got in his car, asked for
“weed” and then they went cruising. He initially denied having sex
with her, claiming instead that he had masturbated while standing
behind her. He initially denied using a condom but then said that
he had. Later, Israel admitted lying on top of the girl and
attempting to have sexual intercourse with her. However, he
claimed not to have been able to penetrate her. Later, Israel
admitted that he was able to penetrate her “a little bit.” He denied
striking the woman. Finally, Israel acknowledged that Antonio was
in the car when this was occurring.

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

After explaining that the woman got in the car, asked for “weed,”
wanted to go home, but then wanted to cruise, Israel said: “So we
cruised around in the fuckin cutties [FN1] and stuff. After that we
post because I guess she wanted to throw up and stuff, she wasn't
feeling well so we got out of the car and then she was about to
throw up but she didn't. And she was just saying ‘I don't feel
well.’” (Italics added.)
FN1. The term “cutties” in this context “Refers to an area far away
in distance or in the middle of nowhere.” (Urban Dict. (1999–
2011) <http:// www.urbandictionary.com/define.php?term=Cutties>
[as of Aug. 30, 2011].)

15
16
17

Defendants argue the foregoing statement implicated them because,
by the time the jury heard it, evidence had already been presented
that both Edgar and Alberto were also in the car with Israel,
Antonio and S.L. and, therefore, they fell within the reference to
“we.”

18
19
20
21
22

It is readily clear Israel's statement that “we” cruised around and
“we” got out of the car did not implicate Edgar or Alberto on its
face, especially when Israel had previously indicated that both
Antonio and the victim were with him in the car and he did not
mention anyone else. The fact that the statement may implicate the
others, when considered in conjunction with other evidence placing
Edgar and Alberto in the car, does not bring the statement within
the scope of Aranda/Bruton. (Richardson, supra, 481 U.S. at p.
208.)

23
24
25
26

Defendants contend the foregoing evidence is “remarkably similar”
to that in People v. Song (2004) 124 Cal.App.4th 973, where this
court found a violation of Aranda/Bruton. Defendants are
mistaken. In Song, a detective testified that one defendant told him
he saw a codefendant force the victim into the car. (Song, at p.
979.) The People conceded error but argued it was not prejudicial.
(Id. at p. 981.)

27
28

Song is clearly distinguishable from the present matter. In Song,
the codefendant's statement implicated the defendant directly by
27

1

name, whereas in the present matter Israel's statement did not
mention the codefendants by name or suggest the presence of any
unidentified perpetrators at the time of the offenses. Only by
reference to other evidence could the “we” mentioned by Israel be
considered to include Edgar and Alberto.

2
3
4

Defendants also take issue with a statement made by Israel about
smoking marijuana. When asked how much marijuana he smoked
that evening, Israel answered: “Um I think we had like two blunts
yeah we only had like two blunts rolled up.” (Italics added.) He
was then asked if he handed a blunt to S.L., and Israel answered:
“No we were just rotating.” (Italics added.)

5
6
7

Again, there is no direct reference to either Edgar or Alberto or any
unidentified persons being present, and the “we” can easily be
interpreted as referring to Israel, Antonio and S.L. Edgar and
Alberto are implicated only by virtue of other evidence placing
them in the car at the time. Under Richardson, this falls outside of
Aranda/Bruton.

8
9
10
11

Finally, defendants take issue with a number of statements made by
Israel that amounted to admissions by him that he committed the
various charged crimes. For example, defendants cite Israel's
admission that, while lying on top of S.L., he attempted to penetrate
her for six to seven minutes. They further cite Israel's statement
that S.L. told him to stop and she was too drunk to fight back.
Defendants argue that, by implicating himself in a forcible rape, as
alleged in count 2, Israel also implicated them as aiders and abettors
in that crime as well as rape in concert, as alleged in count 3.
Defendants further argue these statements negated their own
assertions at trial that S.L. had gone with them voluntarily and had
engaged in consensual sex.

12
13
14
15
16
17

25

Defendants seek to stretch Aranda/Bruton far beyond its legal
bounds. The evil those cases seek to avoid is the admission of
statements by one defendant that identify another defendant, either
directly or indirectly, as having been involved in the crime without
that other defendant having an opportunity to test those statements
through cross-examination. Aranda/Bruton does not seek to keep
out all statements by one defendant that might somehow prove to be
harmful to another defendant once that other defendant's
participation in the crimes is established through other evidence. In
this instance, Israel's statements implicating himself alone would
have an adverse impact on the other defendants as aiders and
abettors only if Israel also identified those others as having
participated. However, such participation was established through
other evidence.
Under Richardson, introduction of Israel's
statements did not violate the confrontation rights of these other
defendants.

26

***

18
19
20
21
22
23
24

27

/////

28

/////
28

1

Edgar Radillo

2

Edgar first denied having been in Davis at any time during the past
year, but then admitted recently picking up a girl in Davis.
According to Edgar, when they arrived at the crime scene, “She
gets out of the car screaming” and “started tripping out saying she
was going to call the cops.” Edgar claimed that, after they arrived
at the scene, he stayed in the car with Antonio and denied touching
S.L. However, Edgar later admitted putting a condom on and
intending to have sexual intercourse with her. But, according to
Edgar, he changed his mind and took the condom off. He denied
ever getting on top of S.L. but then admitted doing so and rubbing
his penis on her. He at first denied penetrating S.L. but then
acknowledged having done so once. Edgar denied getting into
S.L.'s purse but then admitted taking the condom from the purse.
He identified Antonio as being present and asserted that Antonio
remained in the car the whole time.

3
4
5
6
7
8
9
10
11
12

After acknowledging that he picked a girl up off the street in Davis,
Edgar indicated he talked to her and she said “she was going to the
university or something.” The following colloquy ensued:
“DETECTIVE HERNAN OVIEDO: Okay. What else did you guys
talk about in the car?

13
14
15
16

“EDGAR RADILLO: Nothing she just talked about uh well what
we were going to do with our life that she had something but I don't
know stuff. She was telling me about her life. That she don't like
white guys and I don't know she was telling me.
“DETECTIVE HERNAN OVIEDO: Were you guys drinking in the
car?

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

“EDGAR RADILLO: No she was already drunk. We didn't drink at
all.”
Defendants contend that, by the time Edgar's interview tape was
played, the jury was already aware Alberto and Israel were in the
car with Edgar, Antonio and S.L. Thus, the foregoing implicated
them in the offenses despite the use of the neutral pronoun “we.”
However, as explained earlier, the fact that evidence outside of an
out-of-court statement can be used to link unnamed defendants to
the statement does not implicate Aranda/Bruton. In the context
where Edgar had just explained that he and S.L. were talking to
each other in the car, the officer's questions about “you guys” and
Edgar's statement that “we” didn't drink could reasonably be
viewed as referring to Edgar and S.L. alone. Only when coupled
with other evidence outside the interview, are Israel and Alberto
arguably implicated.
The same goes for Edgar's statement shortly thereafter about how
S.L. jumped out of the car and was “tripping out: “We were
already out in the cuts [[[FN2] we didn't know where we going. I
don't even know the cuts. I was lost. And then we just ended up
somewhere. And then she started tripping out saying she was going
29

1
2

to call the cops and I don't know.” The “we” there could easily
have referred to Edgar, Antonio, and S.L., whom Edgar
acknowledged were present. Only by reference to evidence outside
Edgar's interview are Israel and Alberto implicated.

3
4
5
6
7

FN2. In this context “cuts” means, “A term to describe a remote
area that is either hidden, distant, or both.” (Urban Dict. (1999–
2011) <http:// www.urbandictionary.com/define.php?term=cuts &
page=2> [as of Aug. 30, 2011].
Likewise, Edgar's statement that “[n]obody” helped S.L. out of the
car and over to where she was sexually assaulted did not refer to
either Israel or Alberto and did not suggest anyone else was present
besides Edgar and Antonio.

8
9
10
11
12

The remaining statements defendants cite as violating
Aranda/Bruton all implicated Edgar alone in the crimes. As with
Israel's statements of a similar nature, defendants argue that by
implicating himself in a rape, Edgar likewise adversely impacted
their consent defenses. However, as with Israel's statements,
Edgar's self-implication is only adverse to Israel and Alberto if
other evidence outside Edgar's interview placed them at the scene.
Under these circumstances, there is no Aranda/Bruton error.
(Richardson, supra, 481 U.S. at p. 208.)

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

Apparently, the prosecution concluded it could not redact Alberto's
pretrial interview sufficiently to present it at trial. Instead, Alberto's
pretrial statements were presented through the testimony of the
questioning officer. Alberto admitted picking up S .L. but denied
touching her. Then he admitted shaking hands with her and
touching her clothing. Alberto claimed S.L. got into the car
willingly and asked for marijuana. He also admitted touching a
condom and a pair of panties.
Defendants contend two of Alberto's statements came in that
referred to “they” as having done something, as in “they” went to
the “cutties” and, as Alberto was holding S.L. up while she threw
up, “they” came over. The remaining statements to which
defendants object all implicated Alberto alone in the offenses, and
the others by implication as aiders and abettors. However, as
discussed above, none of these statements violated Aranda/Bruton.
The use of “they” implicates the others only when coupled with
evidence outside of Alberto's statements, and the self-incriminating
statements do not fall within Aranda/Bruton even if they might
ultimately harm the others.
Furthermore, Alberto eventually testified at trial and was therefore
available for cross-examination by the other defendants.
Defendants contend this does not matter, because at the time the
officer testified about what Alberto said, Alberto had not yet
testified and therefore was unavailable as a witness and could not
be cross-examined on his out-of-court statements. But we fail to
see what the timing of defendants' opportunity to cross-examination
30

1
2

Alberto about his out-of-court statements has to do with it. The
ability to cross-examination is the ability to cross-examine,
whenever it occurs. Aranda/Bruton is not implicated if the
declarant is available at trial.

3
4
5
6
7
8
9

Defendants claim introduction of the pretrial interview statements
of each of them violated Crawford, even if those statements did not
implicate them directly. In Crawford, the United States Supreme
Court “repudiated [its] prior ruling in Ohio v. Roberts (1980) 448
U.S. 56, under which an unavailable witness's statements were
admissible against a criminal defendant if the statement bore
‘adequate “indicia of reliability.”’ [Citation.] . . . Crawford held that
out-of-court statements by a witness that are testimonial are barred
under the Sixth Amendment's confrontation clause unless the
witness is shown to be unavailable and the defendant has had a
prior opportunity to cross-examine the witness, regardless of
whether such statements are deemed reliable by the trial court.”
(People v. Monterroso (2004) 34 Cal.4th 743, 763.)

10
11
12
13
14
15

There is no question the interview statements of defendants were
testimonial within the meaning of Crawford and, at least as to
Edgar and Israel, the declarants were unavailable as witnesses.
However, “Crawford addressed the introduction of testimonial
hearsay statements against a defendant.” (People v. Stevens (2007)
41 Cal.4th 182, 199, italics added.) As explained above, none of
defendants' interview statements admitted at trial contained
evidence against any of the others. Thus, they did not implicate the
confrontation clause. (Ibid.) “The same redaction that ‘prevents
Bruton error also serves to prevent Crawford error.’” (Ibid.;
accord, People v. Song, supra, 124 Cal.App.4th at p. 984.)

16
17
18
19
20

Sanchez, 2011 WL 3806264, at **12-19.
2. Applicable Legal Standards
a. Severance
A court may grant habeas relief based on a state court’s decision to deny a motion for

21

severance only if the joint trial was so prejudicial that it denied a petitioner his right to a fair trial.

22

Zafiro v. United States, 506 U.S. 534, 538-39 (1993) (court must decide if “there is a serious risk

23

that a joint trial would compromise a specific trial right of one of the defendants, or prevent the

24

jury from making a reliable judgment about guilt or innocence”); United States v. Lane, 474 U.S.

25

438, 446 n.8 (1986) (“misjoinder would rise to the level of a constitutional violation only if it

26

results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial”);

27

Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991) (same); see also Comer v. Schiro,

28

480 F.3d 960, 985 (9th Cir. 2007) (in the context of the joinder of counts at trial, habeas relief
31

1

will not be granted unless the joinder actually rendered petitioner’s state trial fundamentally

2

unfair and therefore violative of due process). Petitioner bears the burden of proving that the

3

denial of severance rendered his trial fundamentally unfair, Grisby v. Blodgett, 130 F.3d 365, 370

4

(9th Cir. 1997), and must establish that prejudice arising from the failure to grant a severance was

5

so “clear, manifest, and undue” that he was denied a fair trial. Lambright v. Stewart, 191 F.3d

6

1181, 1185 (9th Cir. 1999) (quoting United States v. Throckmorton, 87 F.3d 1069, 1071-72 (9th

7

Cir. 1996)). On habeas review, federal courts neither depend on the state law governing

8

severance, Grisby, 130 F.3d at 370 (citing Hollins v. Dep't of Corrections, State of Iowa, 969 F.2d

9

606, 608 (8th Cir. 1992)), nor consider procedural rights to a severance afforded to criminal

10

defendants in the federal criminal justice system. Id. Rather, the relevant question is whether the

11

state proceedings satisfied due process. Id.; see also Cooper v. McGrath, 314 F. Supp. 2d 967,

12

983 (N.D. Cal. 2004).

13

b. Right to Confrontation

14

The Sixth Amendment to the United States Constitution grants a criminal defendant the

15

right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. “The ‘main and

16

essential purpose of confrontation is to secure for the opponent the opportunity of cross-

17

examination.’” Fenenbock v. Director of Corrections for California, 692 F.3d 910, 919 (9th Cir.

18

2012) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)). The Confrontation Clause

19

applies to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406

20

(1965).

21

In 2004, the United States Supreme Court held that the Confrontation Clause bars the state

22

from introducing into evidence out-of-court statements which are “testimonial” in nature unless

23

the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness,

24

regardless of whether such statements are deemed reliable. Crawford v. Washington, 541 U.S. 36

25

(2004). The Crawford rule applies only to hearsay statements that are “testimonial” and does not

26

bar the admission of non-testimonial hearsay statements. Id. at 42, 51, 68. See also Whorton v.

27

Bockting, 549 U.S. 406, 420 (2007) (“the Confrontation Clause has no application to” an “out-of-

28

court nontestimonial statement.”) Although the Crawford court declined to provide a
32

1

comprehensive definition of the term “testimonial,” it stated that “[s]tatements taken by police

2

officers in the course of interrogations are . . . testimonial under even a narrow standard.”

3

Crawford, 541 U.S. at 52.

4

In Bruton v. United States, 391 U.S. 123 (1968), the United States Supreme Court held

5

that a defendant is deprived of his Sixth Amendment right of confrontation when a facially

6

incriminating confession of a non-testifying co-defendant is introduced at their joint trial, even if

7

the jury is instructed to consider the confession only against the co-defendant. 391 U.S. at 135.

8

“Under Bruton and its progeny ‘the admission of a statement made by a non-testifying

9

codefendant violates the Confrontation Clause when that statement facially, expressly, or

10

powerfully implicates the defendant.’” United States v. Hernandez-Orellana, 539 F.3d 994, 1001

11

(9th Cir. 2008) (quoting United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007)). Bruton

12

presented a “context[ ] in which the risk that the jury will not, or cannot, follow instructions is so

13

great, and the consequences of failure so vital to the defendant, that the practical and human

14

limitations of the jury system cannot be ignored.” Id. at 135.

15

Gray v. Maryland, 523 U.S. 185 (1998) extended Bruton to a codefendant’s confession,

16

under similar joint-trial circumstances, that was “redacted . . . by substituting for the defendant’s

17

name in the confession a blank space or the word ‘deleted.’” Gray, 523 U.S. at 188. The Court

18

held that these redactions made no constitutional difference. Id. However, in Richardson v.

19

Marsh, 481 U.S. 200 (1987), the Supreme Court held that the admission of a nontestifying

20

codefendant's confession did not violate the defendant’s rights under the Confrontation Clause

21

where the trial court instructed the jury not to use the confession in any way against the

22

defendant, and the confession was redacted to eliminate not only the defendant’s name, but any

23

reference to her existence. In People v. Aranda, 63 Cal. 2d 518 (1965), the California Supreme

24

Court held that at a joint trial, a co-defendant’s extrajudicial statements inculpating another

25

defendant must be excluded, even if the co-defendant testified at trial. Aranda was abrogated in

26

part in 1982 by an amendment to the California Constitution. See People v. Boyd, 222 Cal. App.

27

3d 541, 562 (1990) (“Thus, to the extent Aranda required exclusion of inculpatory extrajudicial

28

statements of co-defendants, even when the co-defendant testified and was available for cross33

1

examination at trial, Aranda was abrogated by Proposition 8.”). The Crawford decision “did not

2

overrule Bruton and its progeny.” United States v. Williams, 429 F.3d 767, 773 (8th Cir. 2005).

3

See also Crawford, 541 U.S. at 57-58.

4

Confrontation Clause violations are subject to harmless error analysis. Whelchel v.

5

Washington, 232 F.3d 1197, 1205-06 (9th Cir. 2000). “In the context of habeas petitions, the

6

standard of review is whether a given error ‘had substantial and injurious effect or influence in

7

determining the jury's verdict.’” Christian v. Rhode, 41 F.3d 461, 468 (9th Cir. 1994) (quoting

8

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Factors to be considered when assessing the

9

harmlessness of a Confrontation Clause violation include the importance of the testimony,

10

whether the testimony was cumulative, the presence or absence of evidence corroborating or

11

contradicting the testimony, the extent of cross-examination permitted, and the overall strength of

12

the prosecution's case. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).4

13

3. Analysis

14

Petitioner claims that the trial court violated his rights under the Confrontation Clause by

15

admitting into evidence the police statements of Israel and Alberto Sanchez, wherein they

16

referred to the people in the car as “we” and made other statements that provided crucial evidence

17

to support the kidnapping, rape and sexual battery charges. As set forth above, the California

18

Court of Appeal, in a thorough analysis, concluded that the admission of Israel and Alberto’s

19

statements did not violate the Confrontation Clause because they implicated petitioner only when

20

coupled with other evidence outside of those statements. The state court concluded that the word

21

“we” could have been interpreted by the jury to refer to petitioner, S.L., and Antonio, who the

22

jurors were already aware were in the car, and that the other incriminating statements only

23

implicated petitioner in the crimes because his participation had been established by other

24

evidence. These conclusions by the Court of Appeal are based a reasonable interpretation of the

25

/////

26
27
28

4

Although Van Arsdall involved a direct appeal and not a habeas action, “there is nothing
in the opinion or logic of Van Arsdall that limits the use of these factors to direct review.”
Whelchel, 232 F.3d at 1206.
34

1

facts of this case and are not contrary to or an unreasonable application of the holdings in Bruton,

2

Richardson, and Gray.

3

Further, unlike the situation in Gray, the statements of Edgar Radillo and Israel Sanchez

4

were not altered by the trial court to insert a pronoun for petitioner’s name. Rather, their

5

statements were introduced as they spoke them, with any reference to petitioner being supplied by

6

other evidence outside of those statements. In addition, petitioner’s jury received a limiting

7

instruction that informed the jurors the admitted statements could only be considered against the

8

declarant and not against any other defendant. Although the trial judge originally misspoke when

9

delivering this instruction, substituting the word “defendant” for the word “declarant,” the error

10
11

was corrected during the formal recitation of jury instructions.
Further, as noted by the California Court of Appeal, Alberto Sanchez testified at trial and

12

was subject to cross-examination. Because petitioner was given the opportunity to cross-examine

13

Alberto about his statements to police, the admission of those statements did not violate

14

petitioner’s rights under the Confrontation Clause. Crawford, 541 U.S. at 59 n.9 (2004) (“when

15

the declarant appears for cross-examination at trial, the Confrontation Clause places no

16

constraints at all on the use of his prior testimonial statements”); California v. Green, 399 U.S.

17

149, 162 (1970) (“where the declarant is not absent, but is present to testify and to submit to

18

cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-

19

court statements does not create a confrontation problem”); Delaware v. Fensterer, 474 U.S. 15,

20

21-22 (1985) (“the Confrontation Clause is generally satisfied when the defense is given a full

21

and fair opportunity to probe and expose . . . infirmities through cross-examination, thereby

22

calling to the attention of the factfinder the reasons for giving scant weight to the witness'

23

testimony”); United States v. Valdez-Soto, 31 F.3d 1467, 1470 (9th Cir. 1994) (“We are aware of

24

no Supreme Court case, or any other case, which holds that introduction of hearsay evidence can

25

violate the Confrontation Clause where the putative declarant is in court, and the defendants are

26

able to cross-examine him”). Because there is no violation of the right to confrontation when the

27

declarant is available for cross-examination, petitioner is not entitled to relief on his claims

28

directed to Alberto Sanchez’s police statements.
35

1

The decision of the California Court of Appeal that the admission of Alberto and Israel

2

Sanchez’s statements did not violate petitioner’s rights under the Confrontation Clause is not

3

contrary to or based on an unreasonable determination of clearly established federal law.

4

Accordingly, petitioner is not entitled to habeas relief on this claim.5

5

Because there was no Confrontation Clause error at petitioner’s trial, the trial court did not

6

violate petitioner’s federal constitutional rights in denying petitioner’s motion to sever his trial

7

from that of his co-defendants. The joint trial was not “so prejudicial that it denied a petitioner

8

his right to a fair trial.” Zafiro, 506 U.S. at 538-39. Accordingly, petitioner is not entitled to

9

federal habeas relief on his severance claim.

10

C. Joinder in Claims of Co-Defendants

11

In his last ground for relief, petitioner states that he “joins all arguments raised by his

12

codefendants which inure to his benefit.” ECF No. 1 at 5.

13

Petitioner’s co-defendants Israel Sanchez and Alberto Sanchez also filed habeas petitions

14

challenging their state court convictions in this court. See Sanchez v. Paramo, Case No. 2:13-cv-

15

0491-TLN-EFB P, and Sanchez v. Spearman, Case No. 2:12-cv-2869-TLN-EFB P. Petitioner’s

16

case and that of Israel Sanchez and Alberto Sanchez are related under Local Rule 123(a).

17

However, compliance with Local Rule 123(a) merely results in assignment of all three cases to

18

the same judge. There has been no consolidation of these three actions.

19

/////

20
5

21
22
23
24
25
26
27
28

Because the trial court did not commit error under Bruton in admitting the statements of
Edgar Radillo, there is no Crawford error. See, e.g., United States v. Rakow, 286 F. App’x 452,
454 (9th Cir. 2008) (court denies Crawford violation where prior testimony of co-defendant was
admitted against co-defendant, because “. . . absent Bruton error, Crawford has no work to do in
this context . . . .”) (citing United States v. Johnson, 297 F.3d 854, 856 n. 4 (9th Cir. 2002);
United States v. Chen, 393 F.3d 139, 150 (2d Cir. 2004) (the same factual circumstances
surrounding admission of co-defendant's statement “that prevent Bruton error also serves to
prevent Crawford error.”); United States v. Gould, No. CR 03–2274 JB, 2007 WL 1302593, at *3
(D.N.M. Mar. 23, 2007) (“If a limiting instruction is given to the jury, a properly redacted
statement of a co-defendant, one that satisfies Bruton . . . , does not raise a Confrontation Clause
issue pursuant to Crawford ..., because such a statement is not offered against the defendant.”);
Bolus v. Portuondo, No. 9:01–CV–1189, 2007 WL 2846912, at *21 (N.D.N.Y. Sept. 26, 2007)
(“Since this court finds no Bruton error, there would be no Crawford error, even if Crawford
were applicable.”).
36

1

Petitioner may not incorporate by reference any claims raised by his co-defendants. The

2

Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254

3

(“Habeas Rules”), require that each habeas petition specify all the grounds for relief, state the

4

facts supporting each ground, and state the relief requested. See Habeas Rule 2(c). Further, the

5

form for filing a petition for writ of habeas corpus in this court advises that all claims raised

6

therein must allege facts in support of each claim. Petitioner’s vague and unsupported statements

7

fail to demonstrate entitlement to federal habeas relief. See Jones v. Gomez, 66 F.3d 199, 204

8

(9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“It is well-settled that

9

‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant

10

habeas relief’”)). The court notes that petitioner’s attempt to join in the federal habeas claims

11

raised by Israel and Alberto Sanchez is based on California Rules of Court, rule 8.200(a) (5),

12

which allows a co-appellant to “join in or adopt by reference all or part of a brief in the same or a

13

related appeal.” The California Rules of Court are inapplicable to federal habeas petitions.

14

In any event, in connection with their respective federal habeas actions, this court has

15

concluded that none of the claims raised by Israel and Alberto Sanchez have merit. Accordingly,

16

petitioner has failed to demonstrate entitlement to federal habeas relief based on the claims of his

17

co-defendants.

18

IV. Conclusion

19
20

Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED that
petitioner’s application for a writ of habeas corpus be denied.

21

These findings and recommendations are submitted to the United States District Judge

22

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

23

after being served with these findings and recommendations, any party may file written

24

objections with the court and serve a copy on all parties. Such a document should be captioned

25

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

26

shall be served and filed within fourteen days after service of the objections. Failure to file

27

objections within the specified time may waive the right to appeal the District Court’s order.

28

Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
37

1

1991). In his objections petitioner may address whether a certificate of appealability should issue

2

in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section

3

2254 Cases (the district court must issue or deny a certificate of appealability when it enters a

4

final order adverse to the applicant).

5

DATED: May 21, 2015.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
38