Sanchez v. Paramo

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/21/15 RECOMMENDING that petitioners application for a writ of habeas corpus be denied. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALBERTO SANCHEZ,

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No. 2:13-cv-0491-TLN-EFB P

Petitioner,
vs.

FINDINGS AND RECOMMENDATIONS

DANIEL PARAMO,
Respondent.

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Petitioner Alberto Sanchez is a state prisoner proceeding through counsel with a petition

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a judgment of conviction

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entered against him on June 4, 2008 in the Yolo County Superior Court on charges of two counts

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of forcible rape, two counts of rape in concert, and one count each of kidnapping, assault, false

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imprisonment, and sexual battery, with a finding that the rape and rape in concert offenses were

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committed under circumstances involving a kidnapping and movement of the victim which

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substantially increased her risk of harm. Petitioner seeks federal habeas relief on the following

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alleged grounds: (1) his constitutional rights were violated by the prosecutor’s improper use of

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peremptory challenges to exclude five Hispanics from the jury; (2) the evidence introduced at his

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trial is insufficient to support his conviction on the kidnapping charge; (3) jury instruction error

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violated his right to due process; and (4) the denial of his motion for a separate trial and the

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admission into evidence at a joint trial of his co-defendants’ statements to police violated his
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federal constitutional rights. Upon careful consideration of the record and the applicable law and

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for the reasons stated below, it is recommended that petitioner’s application for habeas corpus

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relief be denied.

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I. Background

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

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

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following factual summary:

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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.
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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.
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That same evening, 23–year–old S.L. and some friends went out for
a night of dinner and drinking in downtown Davis.
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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.
She was intoxicated, tired and wanted to go home. However, her
ride for the evening had already gone home.

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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.

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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.

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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.

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

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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.

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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.

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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

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scene was later determined to be a match for Edgar, and DNA from
the other condom was found to be a match for Israel.

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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
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.

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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.

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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.

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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.

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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.

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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

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a petition for review in the California Supreme Court. Resp’t’s Lodg. Doc. 12. Therein,

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

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for review was summarily denied. Resp’t’s Lodg. Doc. 14.
On March 11, 2013, petitioner filed a petition for writ of habeas corpus in this court.

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II. Standards of Review Applicable to Habeas Corpus Claims

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An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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

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

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

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2000).

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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

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(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.

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

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

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

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

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

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

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

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

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

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

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

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widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,
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be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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S. Ct. at 786-87.

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

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

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

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

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

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de novo the constitutional issues raised.”).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.
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A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

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

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

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

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

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

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

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

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

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Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).
When it is clear, however, that a state court has not reached the merits of a petitioner’s

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

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

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

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III. Petitioner’s Claims

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A. Improper Use of Peremptory Challenges

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Petitioner claims in his first ground for relief that his constitutional rights were violated by

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

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ECF No. 1-1 at 42-87. 2

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1. State Court Decision

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

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

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

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

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

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

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

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

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

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

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

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

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state appellate court explained its reasoning as follows:

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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,
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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.)

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“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.)

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Prospective Juror Danielle A.

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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.”

18
19
20

During voir dire, the court questioned Danielle A. about the prior
offenses as follows:

21

“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?

22

“A. Traffic, a few, but—

23

“Q. No felonies or misdemeanors?

24

“A. Yes, there were.”

25

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.”

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
11

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5
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7
8
9
10
11
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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.
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.

15
16
17
18
19
20

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.”

21
22
23
24
25
26
27
28

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
12

1
2
3
4

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

5
Prospective Juror Carlos H.
6
7
8
9
10
11

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.

12
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14
15
16
17
18
19
20
21
22
23

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.
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.

24
25

The record supports the prosecutor's peremptory challenge of
Carlos H.

26

Prospective Juror Sarah H.

27

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

28

13

1

been arrested for assault and had been required to convince the
judge of her innocence.

2
3
4
5
6
7
8
9
10
11
12
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14
15
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21
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25
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27
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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
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.”
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.”
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.
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
14

1
2
3

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.

4
Prospective Juror Maria C.
5
6
7
8
9
10
11

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.”
During voir dire, the prosecutor questioned Maria C. about this
questionnaire response as follows:

12

14

“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?

15

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

16

“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?

13

17
18

“A. No.
19
20
21

“Q. And is that with regards to any type of crime or would you
compartmentalize?
“In other words, do you know what I mean by that? Would you
follow the law with regards to that?

22
“A. Yes.
23
“Q. And would you follow the law on everything?
24
“A. Yes.”
25
26
27
28

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 pro15

1
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prosecution 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.

3
4
5
6
7
8
9

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

10
11
12
13
14
15
16
17
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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.
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.

20
21
22
23
24

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.

25
26
27

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

28
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1
2
3

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.

4
Prospective Juror Monica V.
5
6
7
8
9
10
11
12

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.”

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14
15
16
17
18
19
20
21
22
23
24
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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.
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

26
27

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

28
17

1

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.

2
3
4

Sanchez, 2011 WL 3806264, at **4-12.
2. Legal Standards Regarding Petitioner’s Batson Claim

5

Purposeful discrimination on the basis of race or gender in the exercise of peremptory

6
7

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

8

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

9

three-step test:

10

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.

11
12
13
14
15
16
17

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

18
19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

/////
18

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

893, 899 (9th Cir. 2006).

24

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

25

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

26

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

27

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

28

profession, or because they acquitted in a prior case, or because of a poor attitude in answer to
19

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10
11

Purkett, 514 U.S. at 768).
“Any constitutional error in jury selection is structural and is not subject to harmless error

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

constitutional violation”).

20
21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

courts unreasonably concluded that petitioner failed to meet his ultimate burden of establishing
20

1

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

2

the Batson analysis.

3

In evaluating habeas petitions premised on step three of Batson, the standard of review is

4

“doubly deferential: unless the state appellate court was objectively unreasonable in concluding

5

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

6

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

7

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

8

race-neutral explanations for the Batson challenge.” Rice v. Collins, 546 U.S. 333, 338 (2006).

9

In this case, when asked, the prosecutor expressed a neutral, reasonable basis for the use of her

10

peremptory challenges of all five of the Hispanic jurors. RT at 105-07. The prosecutor’s reasons

11

were “clear and reasonably specific” and were “related to the particular case to be tried.” Purkett,

12

514 U.S. at 768-69. They are also supported by the record. The California Court of Appeal

13

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

14

stricken juror, and the characteristics of other similar jurors who were not stricken. After a

15

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

16

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

17

of Appeal with respect to the characteristics of the other jurors on the panel who were not stricken

18

by the prosecutor.

19

It is true that the fact one or more of the prosecutor’s proffered reasons for striking the

20

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

21

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

22

However, the fact that an excused juror shares one or more characteristics with seated jurors does

23

not end the inquiry nor establish that the prosecutor was acting with discriminatory intent.

24

Rather, the court must evaluate the “totality of the relevant facts” to decide whether “counsel’s

25

race-neutral explanation for a peremptory challenge should be believed.” Ali v. Hickman, 584

26

F.3d 1174, 1180 (9th Cir. 2009). For the reasons stated by the California Court of Appeal, the

27

similarities between the stricken jurors and several of the seated jurors do not undermine the

28

prosecutor’s stated reason for excusing the five Hispanic jurors.
21

1

This court also notes that petitioner’s jury did contain one Hispanic juror, a fact relevant

2

although not decisive. “The fact that African-American jurors remained on the panel ‘may be

3

considered indicative of a nondiscriminatory motive.’” Gonzalez v. Brown, 585 F.3d 1202, 1210

4

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

5

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

6

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

7

prosecutor violated Batson”).

8
9

After reviewing the record, this court finds that the state court’s disposition of petitioner’s
Batson claim is not contrary to or an unreasonable application of clearly established federal law

10

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

11

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

12

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

13

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

14

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

15

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

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

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

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

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B. Insufficient Evidence

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Petitioner’s second claim for relief is that the evidence introduced at his trial is

21

insufficient to support his conviction for kidnapping. ECF No. 1-1 at 87-101. The prosecutor

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argued to the jurors that they could find the defendants guilty of kidnapping on either a

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conspiracy theory or a theory of aiding and abetting. The trial court instructed the jury on both of

24

these theories. Clerk’s Transcript on Appeal (CT) at 992-94, 998-99; RT at 1731. Petitioner

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argues there is no substantial evidence he participated in the kidnapping, either as an aider and

26

abettor or as a co-conspirator. Specifically, he argues there is insufficient evidence he had the

27

specific intent to kidnap S.L. or to bring about her kidnapping. ECF No. 1-1 at 91. He also

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argues that his actions were identical to those of Edgar Radillo, who was acquitted of the

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kidnapping charge. Id. at 89.

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1. State Court Decision
The California Court of Appeal denied petitioner’s claim of insufficient evidence to
support the kidnapping charge, reasoning as follows:
In argument to the jury, the prosecutor mentioned there were
potentially three kidnappings: (1) “when they passed Covell,” (2)
“when they went to County Road 26A,” and (3) “when Israel
carried her to that bush.” The prosecutor further argued the jurors
need not agree on which leg of the overall movement constituted
the kidnapping. However, the prosecutor also emphasized that the
movement of the victim was a continuous course of conduct and
amounted to but one offense.
Alberto contends there is insufficient evidence to support his
conviction for kidnapping under any theory. He points to the fact
that Edgar was not convicted of kidnapping and argues his conduct
in this affair was identical to that of Edgar. According to Alberto,
he, like Edgar, remained silent while Israel transported S.L. to the
crime scene and he did not assist Israel in moving S.L. to the grassy
area.
****
In order to prove simple kidnapping under section 207, subdivision
(a), the prosecution must establish that “‘(1) a person was
unlawfully moved by the use of physical force or fear; (2) the
movement was without the person's consent; and (3) the movement
of the person was for a substantial distance.’” (People v. Bell
(2009) 179 Cal.App.4th 428, 435.)
Alberto does not dispute that a kidnapping occurred in this instance.
Instead, he argues there is no substantial evidence he participated in
it, either as an aider and abettor or as a coconspirator. In particular,
Alberto argues there is no evidence he had the specific intent to
kidnap the victim. He asserts his mere presence in the car, like that
of Edgar, is insufficient to establish his participation in the crime.
Alberto is wrong on the evidence. According to Antonio, in
addition to being the one who initially spoke to S.L. and offered her
a ride, Alberto was later seen whispering to Israel in the front seat.
After S.L. got into the car, nobody even asked her how to get to her
home. Alberto was also the one who said he knew a place out in
the country where they used to go party. Finally, as Israel drove out
of Davis, S.L. asked where they were going and nobody, including
Alberto, responded.
Alberto argues his statement about knowing a place where they
used to go party was made before they left Davis and, hence, before
the kidnapping commenced. However, the timing of Alberto's
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statement does not render it irrelevant on the issue of intent.
Alberto's statement about knowing a party place demonstrates his
intent not to take S.L. home as she requested. If the statement was
made before they left Davis, as Alberto claims, it simply infers
Alberto formed an intent to kidnap the victim at least by that time,
as further supported by his whispering something to Israel. And
Alberto's silence after the victim asked why she was not being
taken home infers he maintained that intent after they left Davis.

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As for the additional movement of S.L. at the crime scene, Antonio
testified that after they arrived, Israel and Alberto got out of the car
and walked over to where Edgar was holding S.L. He further
testified he saw Israel and Alberto say something to each other and
then saw Alberto assist in taking off S.L.'s clothes. Finally, and
most importantly, Antonio testified that both Israel and Alberto
walked S.L. over to the grassy area where she was raped. Thus, the
evidence amply supports Alberto's intent and participation in the
kidnapping.

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Israel contends the record does not support the prosecution's
argument to the jury that a separate kidnapping occurred when the
victim was moved from the car to the grassy area. He argues there
is insufficient evidence this movement was for a substantial
distance, as required for simple kidnapping. Israel points out that
S.L. testified the rapes occurred “fairly close” to the car. He further
asserts Antonio's testimony about how far S.L. was moved was all
over the place. Although Antonio indicated S.L. was moved as
much as 20 feet, he also testified S.L. was moved only a couple of
feet, and ultimately said he did not know how far she was moved.
Israel further contends it cannot be determined from the record
which portion of the overall movement the jury used to convict him
of kidnapping. Therefore, because there is insufficient evidence
that the final movement at the crime scene amounted to a
kidnapping, the conviction must be reversed.
Where a case is presented “to the jury on alternate theories, some of
which are legally correct and others legally incorrect, and the
reviewing court cannot determine from the record on which theory
the ensuing general verdict of guilt rested, the conviction cannot
stand.” (People v. Guiton (1993) 4 Cal.4th 1116, 1122.) In People
v. Green (1980) 27 Cal.3d 1 (Green), overruled by People v.
Martinez (1999) 20 Cal.4th 225 (Martinez), the defendant was
convicted of murder, robbery and kidnapping. The latter could
have been based on any of three distinct segments of asportation.
(Id. at pp. 62–63.) The trial court misinstructed the jury on the law
as to the first segment and the high court concluded movement of
the victim 90 feet in the third segment was insufficient as a matter
of law for kidnapping. Only the second movement supported the
conviction. (Id. at pp. 63–65, 67.) Because it could not be
determined from the record which movement the jury relied on to
convict the defendant, the kidnapping conviction could not stand.
(Id. at pp. 71, 74.)

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The present matter does not involve multiple discrete acts of
kidnapping but one continuous course of conduct that began when
defendants drove the victim past her exit and ended when
defendants left her behind at the crime scene. It is unfortunate that
the prosecutor chose to break down the asportation into segments
for purposes of jury argument. Apparently the prosecutor was
concerned that the jury might conclude S.L. had accompanied
defendants to the crime scene voluntarily. However, whether S.L.'s
consent was rescinded when they drove past her exit or when she
was carried from the car to the grassy area after pleading to be left
alone does not matter. What matters is that at some point during
this continuum of movement, S.L. no longer went along
voluntarily. At that point, the kidnapping commenced.
At any rate, Israel's sufficiency of the evidence argument is
premised on an assertion that movement of S.L. at the crime scene,
the purported third segment of the movement, was insufficient as a
matter of law to satisfy the asportation requirement of simple
kidnapping. As we shall explain, we disagree.
In Martinez, the California Supreme Court changed the standard
previously established in People v. Caudillo (1978) 21 Cal.3d 562
and People v. Stanworth (1974) 11 Cal.3d 588 for assessing the
asportation requirement for simple kidnapping. Under prior law,
the only relevant factor was the actual distance moved. (Caudillo,
at p. 574; Stanworth, at p. 603.) “Martinez overruled Caudillo to
the extent it ‘prohibited consideration of factors other than actual
distance’ (Martinez, supra, 20 Cal.4th at p. 237, fn. 6) because
‘limiting a trier of fact's consideration to a particular distance is
rigid and arbitrary, and ultimately unworkable’ (id. at p. 236).
Martinez established a new asportation standard for simple
kidnapping – one that took into account ‘the “scope and nature” of
the movement . . ., and any increased risk of harm’ – thereby
bringing the standard closer to the one for aggravated kidnapping.
(Ibid.) Martinez required a jury to ‘consider the totality of the
circumstances' in deciding whether a victim's movement is
substantial. (Id. at p. 237.) ‘Thus, in a case where the evidence
permitted, the jury might properly consider not only the actual
distance the victim moved, but also such factors as whether that
movement increased the risk of harm above that which existed prior
to the asportation, decreased the likelihood of detection, and
increased both the danger inherent in a victim's foreseeable
attempts to escape and the attacker's enhanced opportunity to
commit additional crimes.’ (Ibid. . . . )” (People v. Bell, supra, 179
Cal.App.4th at p. 436, italics omitted.)
Martinez made clear that for simple kidnapping the asportation
must be “‘substantial in character,’” which may include
consideration of more than just the distance moved. (Martinez,
supra, 20 Cal.4th at p. 235.)

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The jury here was instructed in accordance with the revised
standard of Martinez. The prosecutor further argued the jury may
consider such factors as whether the movement increased the risk of

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harm or decreased the likelihood of detection in deciding whether
movement of the victim was substantial.

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The victim was moved at the crime scene no more than 20 feet.
However, it is the character of that movement that satisfies the
requirements for simple kidnapping. During the testimony of
Antonio S., the prosecution played a DVD depicting the approach
to the crime scene on a county road and entry up the gravel
driveway where the sexual assault occurred. That DVD shows
clearly that any car parked along the driveway would have been
visible from the county road. However, because of trees, bushes
and underbrush in the area, movement of the victim from the
vicinity of the car to a grassy area 20 feet away would have made it
impossible for anyone passing by on the road to see the assault
taking place. In other words, the movement decreased the
likelihood of detection.

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In People v. Dominguez (2006) 39 Cal.4th 1141 (Dominguez), the
defendant moved the victim from the side of a road down an
embankment to a spot 25 feet away and 10 to 12 feet below the
road surface. This was a location “where it was unlikely any
passing driver would see her” and where trees would have tended to
obscure the crime scene. (Id. at p. 1153.) According to the court:
“The movement thus changed the victim's environment from a
relatively open area alongside the road to a place significantly more
secluded, substantially decreasing the possibility of detection,
escape or rescue.” (Ibid.) The high court concluded this movement
was sufficient to support the defendant's kidnapping conviction.
(Id. at p. 1155.)
Although Dominguez involved a prosecution for aggravated
kidnapping, which requires a finding that the movement increased
the risk of harm to the victim (Dominguez, supra, 39 Cal.4th at p.
1150), Martinez brought the standard for simple kidnapping closer
to that of aggravated kidnapping (People v. Bell, supra, 179
Cal.App.4th at p. 436). Essentially, both types of kidnapping are
assessed in terms of whether the movement increased the risk of
harm to the victim, but only aggravated kidnapping requires such a
finding.
In the present matter, we conclude movement of the victim from the
car to the secluded area 20 feet away, thereby making it less likely
the sexual assault would be detected and more likely further crimes
could be committed on the victim, was sufficient to support the
kidnapping convictions of Israel and Alberto.
Sanchez, 2011 WL 3806264, at ** 20-23.
Petitioner argues that, under California law, the mere fact that he was silent after S.L.

26

stated she wanted to go home was insufficient to establish he harbored the specific intent to

27

kidnap S.L. ECF No. 1-1 at 91-92. He contends that the acquittal of Edgar Radillo on the

28

kidnapping charges demonstrates that the jury did not view his actions as evidence of specific
26

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intent. Id. at 92. He states that he, “like Edgar, did or said nothing after S.L. withdrew consent –

2

i.e., at the time she was being kidnapped.” Id. at 99.

3

Petitioner also disagrees that his statements about “knowing a party place” constitute valid

4

evidence of an intent to rape S.L. He notes that these comments were made while they were

5

driving around Davis, which was before S.L. withdrew her consent to being in the car. Id. at 93,

6

96. Petitioner also argues that the trial testimony reflected he did not give Israel Sanchez

7

directions to the “party place,” but rather was trying to give Israel directions to S.L.’s residence.

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Id. at 94, 95-96. He argues that there is no evidence he gave Israel Sanchez directions on how to

9

get to the location of the rape. Id. at 97-98. Petitioner disagrees with the California Court of

10

Appeal that the evidence demonstrates he had the specific intent to take S.L. out to the country

11

and rape her, either prior to or after S.L. withdrew her consent. Id. at 99-100.

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Petitioner also argues the evidence does not support the assertion by the California Court

13

of Appeal that he assisted Israel in moving S.L. away from the car to the grassy area where she

14

was raped. Id. at 100. He notes, in this regard, that the prosecutor argued to the jury that Israel

15

“alone” moved S.L. from the car to the bushes. Id. He argues that the jury must have accepted

16

this argument. Id. Petitioner further argues that the distance the victim was moved was not far

17

enough, under California law, to support the asportation requirement of the kidnapping statute.

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Id. at 101. Petitioner summarizes his argument as follows:

19

Hence, the evidence produced at trial was insufficient to support the
jury’s verdict finding petitioner guilty of kidnapping and its true
findings on the special allegations with respect to kidnapping, in
violation of federal due process. The court of appeal’s reasoning
that petitioner’s mere mention of a party place when S.L. was
consensually in the vehicle, partying and apparently enjoying
herself and whispering unknown statements to Israel implied an
intent to kidnap is unreasonable. No rational trier of fact would
conclude that such evidence supported a finding that petitioner
intended to take S.L. to a location against her will beyond a
reasonable doubt.

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Id.
2. Applicable Legal Standards
The Due Process Clause “protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
27

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charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a

2

conviction if, “after viewing the evidence in the light most favorable to the prosecution, any

3

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

4

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he dispositive question under

5

Jackson is ‘whether the record evidence could reasonably support a finding of guilt beyond a

6

reasonable doubt.’” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443

7

U.S. at 318). Put another way, “a reviewing court may set aside the jury’s verdict on the ground

8

of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos

9

v. Smith, ___ U.S. ___, 132 S.Ct. 2, *4 (2011). Sufficiency of the evidence claims in federal

10

habeas proceedings must be measured with reference to substantive elements of the criminal

11

offense as defined by state law. Jackson, 443 U.S. at 324 n.16.

12

In conducting federal habeas review of a claim of insufficient evidence, “all evidence

13

must be considered in the light most favorable to the prosecution.” Ngo v. Giurbino, 651 F.3d

14

1112, 1115 (9th Cir. 2011). “Jackson leaves juries broad discretion in deciding what inferences

15

to draw from the evidence presented at trial,” and it requires only that they draw “‘reasonable

16

inferences from basic facts to ultimate facts.’” Coleman v. Johnson,___ U.S. ___, 132 S.Ct.

17

2060, 2064 (2012) ( per curiam ) (citation omitted). “‘Circumstantial evidence and inferences

18

drawn from it may be sufficient to sustain a conviction.’” Walters v. Maass, 45 F.3d 1355, 1358

19

(9th Cir. 1995) (citation omitted).

20

“A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging

21

the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.”

22

Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Because this case is governed by the

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AEDPA, this court owes a “double dose of deference” to the decision of the state court. Long v.

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Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (quoting Boyer v. Belleque, 659 F.3d 957, 960 (9th

25

Cir. 2011), cert. denied ___ U.S. ___, 132 S.Ct. 2723 (2012)).

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3. Analysis
The decision of the California Court of Appeal rejecting petitioner’s arguments that the
evidence was insufficient to support his conviction for kidnapping is not contrary to or an
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unreasonable application of federal law and should not be set aside. The Court of Appeal

2

determined that there was sufficient evidence of petitioner’s intent to kidnap S.L. based on a

3

number of factors, when considered together. Specifically, the court cited evidence in the record

4

that: (1) petitioner was the first person to speak to S.L. when he offered her a ride; (2) petitioner

5

was whispering to Israel in the front seat of the car while they were driving around Davis; (3)

6

although defendants asked S.L. where she lived, “nobody . . . asked her how to get to her home;”

7

(4) petitioner mentioned he knew a “party place” out in the country; and (5) petitioner did not

8

respond when S.L. asked where they were going as they left Davis. A rational trier of fact could

9

have agreed with the jury that these facts supported a finding that petitioner intended to take S.L.

10

out of Davis without her consent. Thus, the state appellate court’s conclusion that these

11

circumstances, when considered together, supported the jury finding that petitioner intended to

12

take S.L. out to the country without her consent is not objectively unreasonable.

13

With respect to whether petitioner and his co-defendants asked S.L. for directions to her

14

house after she told them her street address, Antonio testified that they did not. Specifically, the

15

prosecutor asked Antonio, “After the young lady had given the name of the street she lived on,

16

did anybody ever ask her how to get there?” RT at 282. Antonio responded, “no.” Id. Antonio

17

also testified that petitioner did not have “a continuing conversation with [S.L.] about how to get

18

to her house” after she told them her address; that once S.L. “said what street she lived on, the

19

only conversation was between [petitioner] and Israel;” and that after she stated the name of the

20

street she lived on, nobody said anything. Id. at 279, 281. It is true that Antonio also testified

21

petitioner asked S.L. where she lived; that Israel tried to look for her house but couldn’t find it;

22

and that petitioner “was the one giving the directions where to turn.” See id. at 278-79.

23

However, when viewed in its entirety, Antonio’s testimony does not conclusively establish that

24

petitioner was giving Israel directions to S.L.’s house. In fact, his testimony was more

25

susceptible to the interpretation that petitioner and Israel agreed in a whispered conversation to

26

take S.L. out of Davis and into the country, and that petitioner gave Israel directions how to get

27

there.

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Antonio testified that while they were driving around Davis, petitioner and Israel, who

2

was driving the car, were whispering to each other. Id. 280-81. He stated that as they were

3

driving out to the country, S.L. asked where they were going, but nobody responded. Id. at 285.

4

Antonio also testified that as they were driving around Davis, petitioner mentioned that he “knew

5

of a place that he used to go out to back in the day.” Id. at 362. Antonio understood this to mean

6

a place where petitioner “used to go back and party.” Id. After petitioner said this, they drove

7

out of Davis to the location where the rape occurred. Id. at 447.

8

All of this evidence could fairly be interpreted to support the state court’s conclusion that,

9

during the time they were driving around Davis, petitioner and Israel formed the intent to drive

10

out to the country without S.L.’s consent. With regard to petitioner’s participation, Antonio’s

11

testimony that petitioner was giving Israel directions and whispering to him in the car supports a

12

jury finding that petitioner told Israel how to get to the area where the rapes occurred and, in that

13

manner, had some control over the movement of the car. The fact that there is another way to

14

interpret this evidence is not dispositive of petitioner’s claim. As explained above, a reviewing

15

court must view the evidence in the light most favorable to the prosecution. Jackson, 443 U.S. at

16

319.

17

The California Court of Appeal also reasonably concluded, after a careful analysis of state

18

law and the facts of this case, that petitioner and Israel Sanchez moved the victim for a substantial

19

distance against her will after her participation was no longer voluntary. This conclusion is

20

supported by the testimony of Antonio Sanchez, who testified on direct examination that

21

petitioner and Alberto walked the victim a “couple of feet” away from the car to a grassy area

22

near a tree, where they laid her down on the ground. RT at 303, 307, 308, 392. On cross-

23

examination, Antonio testified that the distance was “about 15 feet.” Id. at 456. When asked

24

whether he remembered how many feet it was, he responded, “no.” Id. However, Antonio never

25

wavered in his testimony that the victim was moved some feet away from the car to a grassy area.

26

A rational jury could have concluded from his statements that the victim was moved away from

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the car to a location that “decreased the likelihood of detection.” Sanchez, 2011 WL 3806264, at

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*22. As stated by the California Court of Appeal, under California law this is sufficient to satisfy

3

the asportation requirement of the kidnapping statute.

4

The California Court of Appeal’s rejection of petitioner’s claim of insufficient evidence is

5

not clearly erroneous and does not constitute an unreasonable application of Winship to the facts

6

of this case. Certainly, the Court of Appeal’s decision is not “so lacking in justification that there

7

was an error well understood and comprehended in existing law beyond any possibility for

8

fairminded disagreement.” Richter,131 S. Ct. at 786-87. Accordingly, petitioner is not entitled to

9

federal habeas relief on this claim.

10

C. Jury Instruction Claims

11

Petitioner raises several claims of jury instruction error. After setting forth the applicable

12
13

legal principles, the court will address these claims below.
1. Applicable Legal Principles

14

In general, a challenge to jury instructions does not state a federal constitutional claim.

15

McGuire, 502 U.S. at 72; Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695

16

F.2d 1195, 1197 (9th Cir. 1983). “Failure to give [a jury] instruction which might be proper as a

17

matter of state law,” by itself, does not merit federal habeas relief.” Menendez v. Terhune, 422

18

F.3d 1012, 1029 (9th Cir. 2005) (quoting Miller v. Stagner, 757 F.2d 988, 993 (9th Cir. 1985)).

19

In order to warrant federal habeas relief, a challenged jury instruction “cannot be merely

20

‘undesirable, erroneous, or even “universally condemned,”’ but must violate some due process

21

right guaranteed by the fourteenth amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973).

22

To prevail on such a claim petitioner must demonstrate “that an erroneous instruction ‘so infected

23

the entire trial that the resulting conviction violates due process.’” Prantil v. State of Cal., 843

24

F.2d 314, 317 (9th Cir. 1988) (quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987)). In

25

making its determination, this court must evaluate the challenged jury instructions “‘in the

26

context of the overall charge to the jury as a component of the entire trial process.’” Id. (quoting

27

Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). If a jury instruction is ambiguous,

28

inconsistent or deficient, it will violate due process only when there is a reasonable likelihood that
31

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the jury applied the instruction in a manner that violates the constitution. Waddington v.

2

Sarausad, 555 U.S. 179, 190-91 (2009).

3
4

2. Failure to Give a Unanimity Instruction
Petitioner claims that the trial court violated his federal right to due process in failing to

5

instruct the jurors that they must agree unanimously as to which act or acts constituted the

6

kidnapping. ECF No. 1-1 at 102-104. He argues that because the prosecutor told the jury there

7

were several movements of the victim that could form the basis for the kidnapping charge, and

8

because petitioner offered separate defenses to each movement, under California law he was

9

entitled to a unanimity instruction. ECF No. 21 at 14. He argues that the Fourteenth Amendment

10

due process clause protects against the “arbitrary deprivation” of a liberty interest to which a

11

defendant is entitled under California law. ECF No. 1-1 at 103.

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The California Court of Appeal denied this jury instruction claim, reasoning as follows:
Israel contends the trial court erred in failing to instruct the jury that
it must unanimously agree which phase of asportation constituted
the kidnapping. As noted earlier, the prosecutor stated in argument
to the jury that there were potentially three kidnappings, including
the drive from Davis to the country and the movement of the victim
from the car to the grassy area.
“In a criminal case, a jury verdict must be unanimous. [Citations.]
. . . Additionally, the jury must agree unanimously the defendant is
guilty of a specific crime. [Citation.] Therefore, cases have long
held that when the evidence suggests more than one discrete crime,
either the prosecution must elect among the crimes or the court
must require the jury to agree on the same criminal act. [Citations.]
[¶] This requirement of unanimity as to the criminal act ‘is intended
to eliminate the danger that the defendant will be convicted even
though there is no single offense which all the jurors agree the
defendant committed.’ [Citation.] . . . [¶] On the other hand, where
the evidence shows only a single discrete crime but leaves room for
disagreement as to exactly how that crime was committed or what
the defendant's precise role was, the jury need not unanimously
agree on the basis or, as the cases often put it, the ‘theory’ whereby
the defendant is guilty.” (People v. Russo (2001) 25 Cal.4th 1124,
1132.)
This case was not tried on a theory that the kidnapping involved
multiple phases. As discussed earlier, the evidence presented to the
jury showed a continuous course of conduct from the time
defendants left Davis to the time they abandoned S.L. in the bushes
after sexually assaulting her. As the Court of Appeal explained in
People v. Cortez (1992) 6 Cal.App.4th 1202, “[k]idnapping is a
substantial movement of a person accomplished by force or fear.
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[Citations.] ‘As long as the detention continues, the crime
continues.’ [Citations.] . . . [¶] ‘[A] unanimity instruction is not
required when the case falls within the continuous course of
conduct exception.’ [Citation.] This exception is applicable where,
by its very nature, the charged offense consists of a continuous
course of conduct. [Citation.] Kidnapping inherently involves a
continuous course of conduct.” ( Id. at p. 1209.)

2
3
4
5

In the present matter, the prosecutor argued movement of the victim
from the car to the bushes alone constituted a kidnapping.
However, this does not mean there were two discrete segments of
the kidnapping. The jury could have concluded there was one
continuous kidnapping from the time defendants left Davis with the
victim until they abandoned her in the bushes. In the alternative,
the jury could have concluded the victim accompanied defendants
to the country voluntarily, as defendants argued, but was then
kidnapped when she was taken from the car to the bushes. Either
way, in order to convict Israel of kidnapping, all 12 jurors had to
conclude that at least the last part of the continuous movement,
from the car to the bushes, constituted a kidnapping. Thus, no
unanimity instruction was required.

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

Sanchez, 2011 WL 3806264 at **29-30.
Federal due process demands a certain “verdict specificity” and “fundamental fairness.”
Schad v. Arizona, 501 U.S. 514, 637 (1991). There is no evidence that this standard was not
satisfied here. As explained by the California Court of Appeal, “the present matter does not
involve multiple discrete acts of kidnapping but one continuous course of conduct that began
when defendants drove the victim past her exit and ended when defendants left her behind at the
crime scene.” Sanchez, 2011 WL 3806264, at 21. Thus, absent any indication of confusion or a
lack of unanimity, petitioner has failed to show that his trial was rendered fundamentally unfair
by the trial court’s refusal to instruct the jurors that they had to agree unanimously on which
particular movement of the victim constituted the kidnapping. Where, as here, the challenge is to
a refusal or failure to give an instruction, the petitioner’s burden is “especially heavy,” because
“[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of
the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). See also Villafuerte v. Stewart, 111
F.3d 616, 624 (9th Cir. 1997). Petitioner has failed to meet this heavy burden.3

26
27
28

3

Further, the conclusion of the California Court of Appeal that petitioner was not entitled
to a unanimity instruction because the kidnapping constituted a continuous course of conduct is
not arbitrary or unfair, or an objectively unreasonable application of California law. Cf. Hicks v.
33

1

Nor is petitioner entitled to relief on his claim that the trial court’s failure to give a

2

unanimity instruction violated his right to a unanimous verdict. As a state criminal defendant in a

3

noncapital case, petitioner had no federal constitutional right to a unanimous jury verdict.

4

Apodaca v. Oregon, 406 U.S. 404, 410-12 (1972); Schad, 501 U.S. at 635 n.5; see also Johnson

5

v. Louisiana, 406 U.S. 356, 359 (1972) (the Supreme Court “has never held jury unanimity to be

6

a requisite of due process of law.”).

7
8

For all of the foregoing reasons, petitioner is not entitled to relief on this jury instruction
claim.

9

3. Improper Instruction on Aiding and Abetting Kidnapping Charges

10

In his next ground for relief, petitioner claims that the trial court violated his right to due

11

process in failing to instruct the jury that aiding and abetting kidnapping and conspiracy to

12

commit kidnapping are specific intent crimes which require “a concurrence of act and specific

13

intent.” ECF No. 1-1 at 105.

14
15

The California Court of Appeal explained the background to this claim and petitioner’s
arguments, as follows:

16

Instructions on Aiding and Abetting Kidnapping

17

The jury was instructed pursuant to CALCRIM No. 252 that all the
charged offenses except false imprisonment and sexual battery
require a union or joint operation of act and wrongful intent. The
instruction identified false imprisonment and sexual battery as
specific intent crimes. It also identified the following lesser
included offenses as specific intent crimes: attempted kidnapping,
attempted rape, assault with intent to commit rape, attempted false
imprisonment, sexual battery without restraint, and false
imprisonment without force or violence.

18
19
20
21
22
23
24
25
26
27
28

Alberto contends the trial court was required to include in the list of
specific intent crimes the crimes of aiding and abetting kidnapping
and conspiracy to kidnap. He argues the jury was therefore never
called upon to determine if he “had the specific intent to kidnap
S.L. at the same time that he agreed to kidnap S.L., or encouraged
or brought about the kidnapping of S.L.” Alberto points out that
the only statement he made that could arguably show his complicity
Oklahoma, 447 U.S. 343, 346 (1980) (Fourteenth Amendment violated by arbitrary deprivation of
interest to which a defendant is entitled under state law). The conclusion that the kidnapping
constituted a continuous course of conduct, rather than several discrete kidnappings, is consistent
with the facts of this case.
34

1

in the kidnapping was his statement about knowing a place where
they could go to party. However, Alberto argues, this statement
was made before they left Davis and, therefore, before the
kidnapping commenced. According to Alberto, “[h]ad the jury
been properly instructed that it must find that [he] had the specific
intent to kidnap at the same time he did some act to control the
vehicle, it is reasonably probable that it would have acquitted [him]
of [kidnapping] and found the special allegations to be not true,
saving him a life sentence.”

2
3
4
5
6

Sanchez, 2011 WL 3806264, at *23.

7

The Court of Appeal rejected petitioner’s arguments in this regard, reasoning as follows:

8
Alberto's argument that the only act he did in aid of the kidnapping
or in furtherance of the conspiracy to kidnap came before the
kidnapping commenced betrays a fundamental misunderstanding of
the requirement that the defendant have a union or joint operation
of act and wrongful intent. The act at issue is not Alberto's
statement about a party place or anything else he might have done
to facilitate the kidnapping. The act is the kidnapping itself. The
question is whether at the time of the kidnapping, Alberto had the
requisite intent to aid and abet or conspire in the kidnapping. As
explained earlier, the jury could reasonably infer that if Alberto had
the requisite intent at the time he made the statement about knowing
a party place, he continued to have that intent after the kidnapping
commenced.

9
10
11
12
13
14
15

As to the trial court's purported failure to instruct on the need for a
union of act and intent, that is not true. In the very instruction
Alberto cites, the court instructed the jury that a union or joint
operation of act and intent is required for various counts of the
information, including the kidnapping count. Later, the court
instructed the jury pursuant to CALCRIM No. 401 that, to find a
defendant guilty on an aiding and abetting theory, it must find
among other things that “[b]efore or during commission of the
crime, the defendant intended to aid and abet the perpetrator in
committing the crime.” This instruction further read: “Someone
aids and abets a crime if he or she knows of the perpetrator's
unlawful purpose and he or she specifically intends to, and does in
fact, aid, facilitate, promote, encourage, or instigate the
perpetrator's commission of that crime.”

16
17
18
19
20
21
22
23

The jury was similarly instructed on conspiracy that it requires,
among other things, proof that the defendant “intended to agree and
did agree with one or more of the other defendants to commit
kidnap and/or rape” and “[a]t the time of the agreement, the
defendant and one or more of the other alleged members of the
conspiracy intended that one or more of them would commit kidnap
and/or rape.”

24
25
26
27

Id. at *24.

28

/////
35

1

Petitioner argues, as he did in state court, that his statement about going to a “party place”

2

does not constitute evidence of an intent to kidnap because it was made before S.L. withdrew her

3

consent to remain in the car. ECF No. 1-1 at 107. He also argues that, even if it was possible to

4

form intent before the kidnapping began, his statements about a “party place,” viewed in the

5

context of all of his actions as a whole, are insufficient to establish that he harbored a specific

6

intent to kidnap S.L. at the same time he actually committed the act of kidnapping. Id.

7

For the reasons described in the discussion on the preceding claim, the California Court of

8

Appeal’s decision that the trial testimony supports the jury’s finding that petitioner formed the

9

intent to kidnap S.L. while he was driving around Davis with his co-defendants and continued to

10

have that intent after the kidnapping commenced is not an unreasonable determination of the facts

11

of this case. Accordingly, petitioner’s argument that that the only act he did in aid of the

12

kidnapping or in furtherance of the conspiracy to kidnap came before the kidnapping commenced

13

and ended there does not demonstrate entitlement to habeas corpus relief.

14

The California Court of Appeal also concluded that the jury instructions, as a whole,

15

sufficiently instructed the jurors that they must find petitioner harbored the intent to kidnap at the

16

same time he assisted in or agreed to the kidnapping. The court found it was not necessary to

17

include aiding and abetting kidnapping and conspiracy to commit kidnaping in CALCRIM No.

18

252 because kidnapping itself was included in that instruction. Petitioner disagrees with these

19

conclusions by the state court. He argues that the jury should have been specifically instructed in

20

CALCRIM 252 that it was necessary to find that he had the specific intent to kidnap at the same

21

time he aided and abetted or agreed to kidnap S.L. Petitioner also argues that the conspiracy

22

instruction did not correctly convey the principle that petitioner himself, as opposed to simply one

23

of his conspirators, must have harbored the requisite intent at the same time he committed the act

24

of kidnapping. ECF No. 21 at 15-16. He argues that, for this reason, the jury may have found

25

him guilty of the kidnapping on the incorrect theory that he was guilty of kidnapping because he

26

conspired to commit rape. Id.

27
28

After a review of the record, this court concludes that the reasoning and ultimate decision
of the California Court of Appeal on this claim is not contrary to or an unreasonable application
36

1

of the federal authorities set forth above. The Court of Appeal’s decision is also consistent with

2

the record facts. See CT at 971 (instructing the jury that a union or joint operation of act and

3

intent was required for various counts of the information, including the kidnapping count); CT at

4

993 (instructing the jury that to find a defendant guilty on an aiding and abetting theory, it must

5

find among other things that the defendant intended to aid and abet the perpetrator of the crime

6

and did, in fact, aid and abet that crime); CT at 998 (instructing the jury that conspiracy requires

7

proof that the defendant intended to agree and did agree with one or more of the other

8

conspirators to commit kidnap and/or rape and, at the time of the agreement, “the defendant and

9

one or more of the other alleged members of the conspiracy” intended that one or more of them

10

would commit kidnap and/or rape) (emphasis added). Under the circumstances presented here,

11

and for the reasons explained by the Court of Appeal, it is reasonable to conclude that the jury

12

instructions, as a whole, correctly advised the jury of the necessity to find a concurrence between

13

petitioner’s intent and his actions with respect to the kidnapping charge. Accordingly, petitioner

14

is not entitled to relief on this claim.

15

4. Misinstruction on Vicarious Liability for the Acts of Co-Conspirators

16

Petitioner claims in his next ground for relief that the trial court violated his right to due

17

process because CALCRIM No. 416, the jury instruction on “evidence of uncharged conspiracy,”

18

allowed the jury to find him vicariously liable for the kidnapping of S.L. without also finding that

19

he intended that he or a co-conspirator kidnap S.L., or that the kidnapping was a natural and

20

probable consequence of the rape. ECF No. 1-1 at 111. He argues that CALCRIM No. 416

21

allowed the jury to find that he was responsible for Israel Sanchez’s kidnapping of S.L. based

22

only on a finding that petitioner agreed to the rape of S.L. and intended that S.L. be raped. Id. at

23

112. Petitioner argues that because the evidence is insufficient to support a finding that he

24

intended that S.L. be kidnapped, “it is likely that the jury premised petitioner’s guilt on count one

25

and the special allegations on Israel’s kidnapping.” Id. at 113. \

26

/////

27

/////

28

/////
37

1

The California Court of Appeal denied this jury instruction claim, reasoning as follows:

2

Conspiracy Instructions

3

Alberto challenges his kidnapping conviction on the basis of
erroneous conspiracy instructions. He argues the instruction given,
CALCRIM No. 416, “allowed the jury to find [him] vicariously
liable for kidnaping [sic] of S.L. without also finding that he had
the intent that he or a co-conspirator kidnap S.L., or that the
kidnaping [sic] was a natural and probable consequence of the
rape.” Alberto further argues that because the evidence is
insufficient to support a finding he intended that they kidnap the
victim, “it is likely the jury premised [his] guilt on count one and
the special allegations on Israel's kidnaping [sic] of S.L.”

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

Once again, Alberto relies on a mistaken interpretation of the
evidence. The fact that Alberto's only verbal expression of intent to
kidnap the victim, i.e., mentioning that he knew about a place
where they could go party, may have come before the kidnapping
commenced does not mean there was insufficient evidence his
intent to kidnap the victim existed at the same time as the
kidnapping.
As for the conspiracy instruction itself, CALCRIM No. 416, as
given by the court, read:
“[The] People have presented evidence of a conspiracy. A member
of a conspiracy is criminally responsible for the acts or statements
of any other member of the conspiracy if done to help accomplish
the goal of the conspiracy.
“To prove that a defendant was a member of a conspiracy in this
case, the People must prove that: One, the defendant intended to
agree, and did agree, with one or more other defendants to commit
kidnapping and/or rape; two, at the time of the agreement, the
defendant and one or more of the other alleged members of the
conspiracy intended that one or more of them would commit kidnap
and/or rape; three, the defendant's [sic] committed at least one of
the following overt acts to accomplish the kidnap and rape:
“One, gave directions to get to a known, isolated area; two, drove
past Covell exit; three, drove into driveway off 26A; four, removed
SL's clothes; five, carried SL to the grass; six, distributing
condoms; and, four [sic], at least one of those – excuse me, at least
one of these overt acts was committed in California.
“To decide whether a defendant committed these overt acts,
consider all of the evidence presented about the acts. To decide
whether a defendant and one or more of the other alleged members
of the conspiracy intended to commit the kidnapping and/or rape,
please refer to the separate instructions I will give you on those
crimes.

28
38

1
2
3
4

“The People must prove that the members of the alleged conspiracy
had an agreement and intent to commit kidnapping – kidnap and/or
rape. The People do not have to prove that any of the members of
the alleged conspiracy actually met or came to a detailed or formal
agreement to commit one or more of those crimes. [¶] . . . [¶]
“You must decide as to each defendant whether he or she was a
member of the alleged conspiracy.

5
6
7
8

“The People contend that the defendants conspired to commit one
or more of the following crimes: Kidnap and/or rape.
“You may not find the defendant guilty under conspiracy theory
unless all of you agree that the People have proved that the
defendant conspired to commit at least one of these crimes, and you
all agree which crime he conspired to commit.

9
10
11

“A member of a conspiracy doesn't have to personally know the
identity or roles of all the other members. Someone who merely
accompanies or associates with members of the conspiracy but who
does not intend to commit the crime is not a member of the
conspiracy.

12
13
14
15
16
17
18
19

“Evidence that a person did an act or made a statement that was evidence that a person did an act or made a statement that helped
accomplish the goal of the conspiracy is not enough by itself to
prove the person was a member of the conspiracy.”
Alberto contends the foregoing instruction allowed the jury to find
him guilty of kidnapping based solely on a determination that he
conspired to commit rape. Alberto argues the instruction should
have explained that he could be convicted of kidnapping based on a
finding that he conspired to commit rape only if kidnapping was a
natural and probable consequence of the rape. Alberto points out
that, while the jury was instructed on natural and probable
consequences, that instruction was expressly limited to whether
Alberto could be held liable for sexual battery based on a finding
that he committed kidnapping or rape.

20
21
22
23
24
25
26
27
28

The People contend any deficiency in the conspiracy instruction
was cured by CALCRIM No. 3501, which the court also gave the
jury. It read: “It is the prosecution's theory that the defendants
conspired to kidnap and/or rape SL, and as a result, they are all
responsible for all crimes committed in the course or furtherance of
the conspiracy to commit those target crimes that are the natural
and probable consequences of the conspiracy to commit those
crimes. [¶] The People have presented evidence of more than one
target crime of the conspiracy to prove that the defendants
committed those offenses. [¶] You must not find the defendant
guilty of the foreseeable crimes based on this theory unless, one,
you all agree that the People have proved the defendants conspired
to commit at least one of the target offenses, and you all agree
which target offense they conspired to commit or; two, you all
agree that the People have proved that the defendants conspired to
commit both target offenses.”
39

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

The foregoing instruction must be viewed in the context of the
others given by the court. (See People v. Espinoza (1992) 3 Cal
.4th 806, 823–824[“[A] single instruction is not to be viewed in
‘artificial isolation’; instead, it must be evaluated ‘in the context of
the overall charge’”].) Earlier in the instructions, the court gave
three separate instructions on the meaning of natural and probable
consequences, one for each of the defendants. The instruction for
Alberto read: “The defendant, Alberto Sanchez, is charged in Count
1 with Kidnapping and Counts 2 and 4 with Rape by Force (Target
offenses). Alberto Sanchez is charged in Count 8 with Sexual
Battery (Non target offense.) [sic] [¶] You must first decide
whether Alberto Sanchez is guilty of Kidnapping or Rape. If you
find Alberto Sanchez is guilty of either of these crimes, you must
then decide whether he is guilty of Sexual Battery (Count 8). [¶]
Under certain circumstances, a person who is guilty of one crime
may also be guilty of other crimes that were committed at the same
time. [¶] To prove that Alberto Sanchez is guilty of: Sexual
Battery (Count 8), the People must prove that: [¶] 1. Alberto
Sanchez is guilty of Kidnapping or Rape. [¶] 2. During the
commission of kidnapping or rape, a co-participant in that
kidnapping or rape committed the crime of Sexual Battery [¶] AND
[¶] 3. Under all of the circumstances, a reasonable person in the
defendant's position would have known that the commission of
Sexual Battery was a natural and probable consequence of the
commission of kidnapping or rape.”
Read in the context of the foregoing instruction, CALCRIM No.
3501 merely reiterated that Alberto could be convicted of a sexual
battery committed by one of his codefendants based on a
conspiracy theory only if such sexual battery was a natural and
probable consequence of the kidnapping or rape. Beyond that, the
instruction explained that the jury must agree as to which offense,
rape or kidnapping, was the target of the conspiracy.
Nevertheless, we fail to see how Alberto was harmed by the
instructions as given. Alberto argues the instructions permitted the
jury to find him guilty of kidnapping based on a finding that he
conspired to commit rape without a further finding that kidnapping
was a natural and probable consequence of the rape. But there is
nothing in these instructions that permitted such a finding. The jury
was informed there were two potential target offenses of the
conspiracy, rape and kidnapping. The jury was further informed
Alberto could be convicted of sexual battery as a natural and
probable consequence of the conspiracy to commit rape or
kidnapping. However, there is nothing that says the jury could
likewise find Alberto guilty of kidnapping based on a finding that
he conspired to commit rape. In other words, the jury was
instructed to determine if there was a conspiracy and to identify the
target offense or offenses. If the jury found the target offense to be
rape, it could then determine Alberto is also guilty of sexual battery
as a natural and probable consequence. However, it was never told
that if it found only one target offense, it could also convict Alberto
of the other alleged target offense as a natural and probable

28
40

1
2
3
4
5
6
7

consequence. Under the instructions as given, if the jury concluded
the only target of the conspiracy was rape, then it could not convict
Alberto of kidnapping on a conspiracy theory.
Thus, while it may have been better for the instructions to explain
that the jury could find the defendants guilty of kidnapping as a
natural and probable consequence of a conspiracy to commit rape,
and vice versa, the failure of the instructions to do so was not
prejudicial to Alberto.
Sanchez, 2011 WL 3806264, at **23-27.
Petitioner disagrees with the Court of Appeal’s statement that under the jury instructions

8

as given, “if the jury concluded the only target of the conspiracy was rape, then it could not

9

convict [petitioner] of kidnapping on a conspiracy theory.” ECF No. 1-1 at 113. He notes that

10

CALCRIM No. 3501 instructed the jury that petitioner was liable for all crimes of his co-

11

conspirators that were the natural and probable consequences of the conspiracy to commit the

12

target crimes of kidnap and/or rape. Id.; see also CT at 1028. He argues that CALCRIM No.

13

3501 allowed the jury to find him guilty of kidnapping “on the ground that Israel Sanchez

14

committed the kidnapping and the kidnapping could be conceived as a natural and probable

15

consequence of the rape, even if the evidence failed to show that petitioner had the intent to rape

16

or to agree to rape at the time the kidnapping was occurring.” Id. at 113-14 (emphasis in

17

original). Petitioner argues that the erroneous conspiracy instruction violated his right to due

18

process and reduced the prosecution’s burden of proof with regard to the kidnapping charge, in

19

violation of his rights under the Sixth Amendment. ECF No. 1-1 at 114.

20

As noted, the California Court of Appeal concluded that any error in the jury instructions

21

challenged by petitioner was harmless because there was nothing in the jury instructions as a

22

whole that permitted the jury to find him guilty of kidnapping based solely on a finding that he

23

conspired to commit rape. While the jury was informed petitioner could be convicted of sexual

24

battery committed by one of his co-defendants based on a conspiracy theory if the sexual battery

25

was a natural and probable consequence of the conspiracy to commit rape or kidnapping, the jury

26

was not informed that petitioner could be convicted of kidnapping on this basis. As stated by the

27

California Court of Appeal, the jury “was never told that if it found only one target offense, it

28

could also convict [petitioner] of the other alleged target offense as a natural and probable
41

1

consequence.” Sanchez, 2011 WL 3806264, at *27. Thus, as noted by the California Court of

2

Appeal, the instructions given to the jury did not provide for a guilty plea for kidnapping based

3

solely on a finding that petitioner conspired to commit rape. This court must presume that jurors

4

follow a trial court’s instructions, and there is no evidence that petitioner’s jurors failed to do so

5

here. Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985); Tak Sun Tan v. Runnels, 413 F.3d 1101,

6

1115 (9th Cir. 2005) (“we presume jurors follow the court’s instructions absent extraordinary

7

situations”).

8
9

The decision and the reasoning of the California Court of Appeal with respect to this
claim of jury instruction error is not unreasonable or “so lacking in justification that there was an

10

error well understood and comprehended in existing law beyond any possibility for fairminded

11

disagreement.” Richter,131 S. Ct. at 786-87. Nor is the decision based on an unreasonable

12

determination of the facts of this case. Accordingly, petitioner is not entitled to habeas relief on

13

this jury instruction claim.

14
15

5. Failure to Give Requested Pinpoint Instruction
In his last jury instruction claim, petitioner argues that the trial court violated his right to

16

due process in failing to instruct the jury that “asportation by fraud alone does not constitute

17

kidnapping.” ECF No. 1-1 at 132.

18

The California Court of Appeal denied this claim, reasoning as follows:

19

Pinpoint Instruction on Asportation by Fraud

20

Defendants contend the trial court erred in failing to give a
requested pinpoint instruction that consent to asportation obtained
by fraud precludes a kidnapping conviction. The proposed
instruction read in relevant part: “Furthermore, movment [sic] or
transportation which is accomplished by fraud, deceit or other false
appearance is not kidnapping. In other words, even if S.L.'s
consent was obtained by fraud, deceit or false appearance, the
existence of such consent precludes a finding of kidnapping. If
after consideration of all the evidence, you have a reasonable doubt
whether the movement or transportation was accomplished by
fraud, deceit or other false appearance, you must give the defendant
the benefit of that doubt and find him not guilty.”

21
22
23
24
25
26
27
28

“A trial court must instruct on the law applicable to the facts of the
case. [Citations.] In addition, a defendant has a right to an
instruction that pinpoints the theory of the defense.” (People v.
Mincey (1992) 2 Cal.4th 408, 437.) But, “[w]hat is pinpointed is
42

1
2
3

not specific evidence as such, but the theory of the defendant's
case.” (People v. Adrian (1982) 135 Cal.App.3d 335, 338.) “The
trial court may not force the litigant to rely on abstract generalities,
but must instruct in specific terms that relate the party's theory to
the particular case.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 572.)

4
5
6
7
8
9
10
11
12
13
14
15

In this instance, the trial court instructed the jury on consent as
follows: “The defendants are not guilty of kidnapping if they
reasonably and actually believed that the other person consented to
the movement. [¶] The People have the burden of proving beyond
a reasonable doubt that the defendant-defendants did not reasonably
and actually believe that the other person consented to the
movement. If the People have not met this burden, you must find
the defendants not guilty of this crime. [¶] The defendant is not
guilty of kidnapping if the other person consented to go with the
defendant. [¶] The other person consented if she, one, freely and
voluntarily and agreed [sic] to go with or be moved by the
defendants; two, was aware of the movement; three, had sufficient
maturity and understanding to choose to go with the defendant. [¶]
The People have the burden of proving beyond a reasonable doubt
that the other person did not consent to go with the defendant. If
the People have not met this burden, you must find the defendant
not guilty of this crime. [¶] Consent may be withdrawn. If at first
a person agreed to go with the defendant, that consent ended if the
person changed his or her mind and no longer freely and voluntarily
agreed to go with or be moved by the defendant. [¶] The
defendants are guilty of kidnapping . . . if after the other person
withdrew consent the defendants committed the crime as I have
defined it.”

16
17
18
19

The People contend the foregoing instruction adequately covered
the principle that defendants' pinpoint instruction sought to convey.
We disagree. The instruction given by the court indicated consent
requires that the victim “freely and voluntarily” agreed to go with
the defendant. A reasonable jury could conclude from this that one
who is tricked into going with another has not done so freely and
voluntarily.

20
21
22
23
24

The People next argue the proposed instruction language was
inaccurate in that it asserted movement or transportation “which is
accomplished by fraud, deceit or other false appearance is not
kidnapping.” The People point out that a given movement may be
accomplished both by fraud and by force or fear and that such
movement would support a kidnapping conviction. We find it
unlikely a reasonable jury would read the instruction language to
include an asportation that is accomplished by means other than
fraud, deceit or other false appearance alone.

25
26
27

However, we do find merit in the People's third argument. They
contend the proposed pinpoint instruction was not supported by the
evidence. We would add that the proposed instruction was also not
consistent with defendants' theory of the case.

28
43

1
2
3
4
5

As the People point out, the defense did not pursue a theory that
S.L. got into the car due to fraudulent misrepresentations that she
was being taken home. On the contrary, defendants presented
evidence that they did attempt to take S.L. home but were unable to
find her residence. They further presented evidence that S.L. asked
for marijuana, smoked it, and apparently changed her mind about
going home and was content to cruise around with them. The
prosecution theory was that S.L. consented to ride with defendants
to her home and, when she realized they were not taking her home,
her consent was rescinded.

6
7
8
9
10
11
12
13
14
15

Defendants rely on Green, supra, 27 Cal.3d 1, where, as discussed
earlier, there were three distinct phases of asportation. In the first
phase, the victim was tricked into accompanying one of the
defendant's accomplices to a place where the defendant was waiting
for her. (Id. at p. 62.) The Supreme Court concluded this portion
of the asportation did not support a kidnapping conviction because
“asportation by fraud alone does not constitute a general kidnaping
[sic] offense in California.” (Id. at p. 64.)
Green is readily distinguishable from the present matter. In that
case, the victim believed she was being taken somewhere else
during the entire trip to the place where the defendant was waiting
for her. At no point during this phase of the asportation did the
victim rescind her consent. In the present matter, once Israel drove
the car past S.L.'s exit and out of Davis, S.L. was no longer under
the false belief that she was being taken home. From that point on,
the asportation was not pursuant to fraud, deceit or false
appearance. It is this latter part of the trip that the prosecution
relied upon for the kidnapping charge.

16
17

In light of the evidence presented and the parties' respective
theories of the case, the trial court did not err in denying defendants'
pinpoint instruction.

18
19
20

Sanchez, 2011 WL 3806264, at *27-29.
Petitioner disagrees with the state court’s conclusion that his requested pinpoint

21

instruction was not supported by the evidence and was not consistent with the defendants’ theory

22

of the case. He argues that Antonio’s testimony regarding the circumstances of S.L.’s movement

23

from Davis to the location where the rapes occurred provided evidentiary support for the position

24

that S.L. remained in the car because she was willing to ride around and smoke marijuana. Thus,

25

he contends that the jury could have found that the defendants presented a false appearance that

26

they were going to the scene to party and that this would present a defense to kidnapping and the

27

special allegations to kidnapping if premised on the first asportation to the scene. As petitioner

28

explains the defense:
44

1

While the prosecution argued that there was a separate asportation
at the scene, there was evidence that S.L. voluntarily exited the
vehicle because she was sick and never moved more than “a couple
of feet” from the car. S.L. herself testified that she was “[f]airly
close” to the car when she was pushed to the ground. RT 659-661.
Thus, there was evidence to support this defense, and the jury could
have found that this second asportation was insufficient to support a
conviction of kidnapping. The failure to instruct on this theory of
defense therefore had a substantial and injurious impact on the
jury’s verdicts and findings pertaining to count one, kidnapping,
and the special allegations.

2
3
4
5
6
7

ECF No. 1-1 at 135.

8
9

The United States Supreme Court has held that “[a]s a general proposition, a defendant is

10

entitled to an instruction as to any recognized defense for which there exists evidence sufficient

11

for a reasonable jury to find in his favor.” Mathews v. United States, 485 U.S. 58, 63 (1988)

12

(citation omitted). This standard is applicable to habeas petitions arising from state convictions.

13

See Bradley v. Duncan, 315 F.3d 1091, 1098-99 (9th Cir. 2002); Conde v. Henry, 198 F.3d 734,

14

739 (9th Cir.1999) (“It is well established that a criminal defendant is entitled to adequate

15

instructions on the defense theory of the case.”). The decision whether to give special jury

16

instructions lies within the discretion of the judge, so long as the instructions given encompass the

17

defense theory. See United States v. Hurd, 642 F.2d 1179, 1181-82 (9th Cir.1981). Failure to

18

give a jury instruction on the defendant’s theory of the case is reversible error if the theory is

19

legally cognizable and there is evidence upon which the jury could rationally find for the

20

defendant. United States v. Rodriguez, 45 F.3d 302, 306 (9th Cir. 1995); United States v.

21

Yarbrough, 852 F.2d 1522, 1541 (9th Cir. 1988).4

22
23

The conclusion of the California Court of Appeal that the pinpoint jury instruction
requested by petitioner and his co-defendants was not supported by the evidence or consistent

24
4

25
26
27
28

In California, the trial court has a sua sponte obligation to give instructions on a defense
when (1) defendant is relying on the defense or (2) there is substantial evidence supportive of the
defense and when the defense is not inconsistent with the defendant's theory of the case. People
v. Barton, 12 Cal.4th 186 (1995). To warrant a defense instruction, “the accused must present
‘evidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury
composed of reasonable men could have concluded that the particular facts underlying the
instruction did exist.’” People v. Strozier, 20 Cal.App.4th 55, 63 (1993).
45

1

with the defense theory is not unreasonable and should not be set aside. Petitioner asserts that the

2

jury could have found that defendants tried to “present a false appearance that they were going to

3

the scene to party.” ECF No. 1-1 at 135. However, there was no evidence the victim understood

4

that this was the defendants’ intention or that she wished or consented to go out to the country

5

and party with the defendants. Rather, the evidence showed that the victim stated several times

6

she wanted to go home and that as soon as the car passed her exit she asked where they were

7

going but received no response. Petitioner argues that the victim may have voluntarily exited the

8

car once they got out to the country because she felt sick. Id. However, there is no evidence she

9

consented to be moved away from the car to the grassy area or to be pushed to the ground near

10

the car, or that her movement at that time was induced by fraud. Petitioner has pointed to nothing

11

in the record indicating that the defense theory of the case was that petitioner and his co-

12

defendants induced S.L.’s consent to drive out to the country based on fraudulent representations

13

that they were going out there to party.

14

Although petitioner’s version of the trial evidence may be plausible, the reasoning of the

15

California Court of Appeal that the jury instruction was not supported by the facts introduced at

16

trial, and was not consistent with the defense theory, is also plausible. Thus, “‘fairminded jurists

17

could disagree’ on the correctness of the state court’s decision.” Richter, 131 S. Ct. at 786.

18

Under these circumstances, petitioner is not entitled to habeas relief. Id.

19

D. Violation of Right to Confrontation/Trial Severance

20

In his next ground for relief, petitioner claims that the trial court’s denial of his motion for

21

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

22

defendants Israel Sanchez and Edgar Radillo violated his right to a fair trial and to confront the

23

witnesses against him. ECF No. 1-1 at 114. He further argues the trial court’s error in admitting

24

these statements was not cured by a limiting instruction given by the trial court. Id. at 114-17.

25

1. State Court Decision

26

Following the defendants’ arrests, each was interviewed by the police and the interviews

27

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

28

/////
46

1

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

2

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

3

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

4

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

5

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

6

the context of an adversary proceeding before the trier of fact.” Id. (citing Maryland v. Craig 497

7

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

8

that are “‘testimonial’ in nature, including statements made during police interrogation.’” Id.

9

(quoting Crawford v. Washington, 541 U.S. 36 (2004) (Crawford)). It also acknowledged that

10

such hearsay may be admitted at trial only if the declarant is unavailable and the defendant has

11

had a previous opportunity to cross-examine the declarant. Id. The petitioner argued that the trial

12

court should have severed the trials because of the cross-incrimination of the defendants' out-of-

13

court statements and that the failure to do so violated petitioner’s right of confrontation under the

14

Sixth Amendment. The California Court of Appeal rejected that argument, reasoning as follows:

15

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.

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25
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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
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
47

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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.

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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.)

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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.
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
48

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Evans's out-of-court confession violated Bruton's Sixth Amendment
right to cross-examine witnesses. (Id. at p. 137.)

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14
15

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.)
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.)

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22
23
24

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

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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
49

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7
8

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.)

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21

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.)

23

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.

24

Israel Sanchez

25

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

22

26
27
28

50

1
2
3

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.

4
5
6
7

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.)

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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].)
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.”
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.)
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.)
Song is clearly distinguishable from the present matter. In Song,
the codefendant's statement implicated the defendant directly by
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.
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
51

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2
3
4
5

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.)
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.

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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.
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.

21
***
22
Edgar Radillo
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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
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4
5
6

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.
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?

7
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10

“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?

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“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
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.
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].

27
28

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
53

1

either Israel or Alberto and did not suggest anyone else was present
besides Edgar and Antonio.

2
3
4
5
6

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.)

7
Alberto Sanchez
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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-examin[e]
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.
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
54

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2
3

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.)

4
5
6
7
8
9

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.)

10
11
12

Sanchez, 2011 WL 3806264, at **12-19.
Petitioner takes issue with the California Court of Appeal’s conclusion that use of the

13

word “we” by Israel Sanchez and Edgar Radillo did not necessarily refer directly to the other two

14

co-defendants in the car and could have referred to the victim or Antonio. ECF No. 1-1 at 125.

15

Petitioner argues that Israel and Edgar’s statements were read to the jurors after they had heard

16

testimony that there were five persons in the car: himself, Edgar, Israel, Antonio, and S.L. Id. He

17

argues, “the jury could not avoid inferring that the pronoun ‘we’ used in the statements referred to

18

petitioner.” Id.

19

Petitioner concedes that, as pointed out by California Court of Appeal, the jury “had to

20

consider other evidence to infer that petitioner was among those present with Israel and Edgar

21

during the events they described.” Id. Yet, he argues that in similar circumstances other courts

22

have found a violation of the Sixth Amendment where the jury could not help but infer that

23

statements made by co-defendants referred to the defendant. Id. at 126. He argues that, in this

24

case, “by the time Israel’s and Edgar’s statements were played, the jury knew immediately that

25

references to ‘we’ included petitioner in the events described in the statements.” Id.

26

Petitioner also argues that the limiting instruction given by the trial court was incorrect

27

and confusing, and was not sufficient to instruct the jury not to use the statements of his co-

28

defendants against him. He notes that the limiting instruction read as follows: “You have heard
55

1

evidence that the defendants made statements out of court and before trial. You may consider

2

that evidence only against the declarant and not against any other defendant.” CT at 978.

3

However, immediately preceding the introduction into evidence of the audiotapes containing

4

Israel and Edgar’s police statements, the trial court misread the instruction and informed the jury

5

that “these statements may be used as evidence only against the defendant and not against other

6

defendants.” RT at 1301, 1303. Petitioner argues it is not clear that “defendant” in this context

7

refers to “declarant.” ECF No. 1-1 at 125. This limiting instruction was correctly conveyed to

8

the jury later during the closing jury instructions. However, petitioner argues that “by the time

9

the jury was told not to use the statements against petitioner, it was too late, the damage had been

10
11

done.” Id.
Petitioner argues that the Sixth Amendment violation that occurred in this case was

12

prejudicial. Id. at 127. He contends that the extrajudicial statements of Edgar Radillo and Israel

13

Sanchez were necessary to establish all the elements of the crimes charged in counts one, three

14

and five (the kidnapping and rapes by Edgar and Israel, of which petitioner was convicted as an

15

aider and abettor or co-conspirator) and count eight (the sexual battery committed by Edgar, of

16

which petitioner was also convicted as an aider and abettor or co-conspirator). Id. at 117, 127-

17

30. He argues that Israel’s and Edgar’s pretrial statements “were required to ‘fill in the blanks’”

18

with respect to these counts. Id. at 129.

19
20
21

2. Applicable Legal Standards
a. Severance
A court may grant habeas relief based on a state court's decision to deny a motion for

22

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

23

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

24

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

25

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

26

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

27

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

28

Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991) (same); see also Comer v. Schiro,
56

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

F.2d 606, 608 (8th Cir. 1992)), nor consider procedural rights to a severance afforded to criminal

11

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

12

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

13

983 (N.D. Cal. 2004).

14

b. Right to Confrontation

15

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

16

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

17

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

18

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

19

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

20

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

21

(1965).

22

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

23

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

24

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

25

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

26

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

27

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

28

Bockting, 549 U.S. 406, 420 (2007) (“the Confrontation Clause has no application to” an “out-of57

1

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

2

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

3

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

4

Crawford, 541 U.S. at 52.

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

Supreme Court held that these redactions made no constitutional difference. Id. However, in

20

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

21

nontestifying codefendant's confession did not violate the defendant's rights under the

22

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

23

against the defendant, and the confession was redacted to eliminate not only the defendant's

24

name, but any reference to her existence.

25

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

26

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

27

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

28

determining the jury's verdict.’” Christian v. Rhode, 41 F.3d 461, 468 (9th Cir. 1994) (quoting
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Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Factors to be considered when assessing the

2

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

3

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

4

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

5

the prosecution's case. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).5

6

3. Analysis

7

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

8

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

9

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

10

to support the kidnapping, rape and sexual battery charges. Petitioner argues that it was clear to

11

the jury that the pronoun “we” included him. As set forth above, the California Court of Appeal,

12

in a thorough analysis, concluded that the admission of Sanchez and Radillo’s statements did not

13

violate the Confrontation Clause because they implicated petitioner only when coupled with other

14

evidence outside of those statements. The state court concluded that the word “we” could have

15

been interpreted by the jury to refer to Radillo, S.L., and Antonio, who the jurors were already

16

aware were in the car, and that the other incriminating statements only implicated petitioner in

17

the crimes because his participation had been established by other evidence. These conclusions

18

by the Court of Appeal are based a reasonable interpretation of the facts of this case and are not

19

contrary to or an unreasonable application of the holdings in Bruton, Richardson, and Gray.

20

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

21

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

22

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

23

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

24

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

25

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

26
27
28

5

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

2

was corrected during the formal recitation of jury instructions. The decision of the California

3

Court of Appeal that, under these circumstances, the admission of Edgar and Israel’s statements

4

did not violate petitioner’s rights under the Confrontation Clause is not unreasonable and is not

5

“so lacking in justification that there was an error well understood and comprehended in existing

6

law beyond any possibility for fairminded disagreement.” Richter,131 S. Ct. at 786-87.

7

Accordingly, petitioner is not entitled to habeas relief on this claim.6

8

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

9

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

10

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

11

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

12

on his severance claim.

13

IV. Conclusion

14
15

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

16

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

17

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

18

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

19
20
6

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.”).
60

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

final order adverse to the applicant).

10

DATED: May 21, 2015.

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