Spillman v. Cullen

Filing 9

ORDER denying re 1 Petition for Writ of Habeas Corpus filed by Glenn B. Spillmannad Denying Certificate of Appealability Signed by Judge Charles R. Breyer on 3/15/2012. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 3/19/2012) Mod

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GLENN B. SPILLMAN,
Petitioner,

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vs.
VINCE CULLEN, Acting Warden,
Respondent.

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No. C 10-4980 CRB (PR)
ORDER DENYING
PETITION FOR A WRIT OF
HABEAS CORPUS AND
DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254. In an

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order filed on February 15, 2011, the court found that his petition challenging a

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conviction and sentence from Monterey County Superior Court, when liberally

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construed, stated a cognizable claim under section 2254 and ordered respondent

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to show cause why a writ of habeas corpus should not be granted. Respondent

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has filed an answer to the order to show cause. Petitioner has filed a response to

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the answer. Having reviewed the papers and the underlying record, the court

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concludes that petitioner is not entitled to habeas corpus relief.

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STATEMENT OF THE CASE
A Monterey County Superior Court jury convicted petitioner of second

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degree murder and found true an enhancement allegation that he fired shots from

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a motor vehicle. See Cal. Penal Code §§ 187, 190(d). The jury did not make

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findings as to the truth of two personal gun use enhancements. The court

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sentenced Spillman to a state prison term of twenty years to life. People v.

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Spillman, No. H030551, 2009 WL 2490132 at *1 (Cal. App. 2009).

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Petitioner unsuccessfully appealed his conviction and sentence to the

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California Court of Appeal, raising the same claims raised here. The court of

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appeals affirmed. People v. Spillman, No. H030551, 2008 WL 1838360 at *1

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(Cal. App. 2008). The California Supreme Court granted a petition for review

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and deferred action pending a decision on another case with the same issue,

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People v. Chun, 45 Cal. 4th 1172 (2009). People v. Spillman, 2009 WL 2490132

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at *4 (Cal. App. 2009). Upon issuance of the opinion in Chun, the supreme court

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transferred the case back to the court of appeal with instructions to vacate the

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2008 opinion and reconsider in light of Chun. Id. The court of appeals did so,

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once again affirming. Id. at *1. Petitioner filed another petition for review; it

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was denied.
STATEMENT OF THE FACTS

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The California Court of Appeal summarized the facts of the case as follows:
Evidence at Trial
In May 2003, Javier Soto was shot and killed as he drove on
Highway 101 near White Road in Salinas. Soto was alone in a grey
Honda and was headed north when three shots were fired from a
pickup truck going in the same direction. Rubi Garcia was driving
the pickup truck which belonged to appellant. Appellant was seated
next to Rubi and Antonio Garcia was next to appellant.1 Because
appellant had been drinking, he let Rubi drive the truck. Antonio
had been drinking beer and had smoked marijuana. He was “kind of
buzzed.”

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Antonio testified at trial that at the time of the shooting he
had known Rubi for three or four years and considered Rubi a close
friend “like a cousin.” Appellant was “just an acquaintance.”
Antonio testified that the three traveled along Highway 101 and
noticed a car in front of them. When Rubi would change lanes to
pass it, the car would also change lanes. Antonio said that the other
car, “would mess with us.” Antonio testified that appellant said
something like “look at this guy.” He said that appellant got a gun
from the glove compartment in front of Antonio. Antonio testified

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Because Rubi Garcia and Antonio Garcia have the same last name, we will
refer to them by their first names.

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that appellant pushed Rubi forward up to the steering wheel and, as
Rubi passed the car, appellant fired the gun out of the driver's side
window. Before the shooting, the three had been laughing. After
the shooting, he and Rubi were quiet and scared. Antonio testified,
“I thought he was going to shoot my ass too.” When the police
pulled them over, appellant told Rubi and Antonio, “Shut up. Don't
say [any]thing.” Antonio testified that he did not touch the gun that
day and that he did not know if Rubi did.

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Francis and Shirley Jarschke testified at trial that they had
witnessed the shooting. Francis Jarschke said that he was driving
on Highway 101 when he saw in his rear view mirror that there was
a pickup truck tailgating a Honda. After Mr. Jarschke passed a
semi-truck, the Honda and the pickup passed him on the right.
When the Honda moved to the left turn lane, the pickup moved to
the fast lane and matched speed with it. The pickup “moved over
close” to the Honda so that it was within two feet of it. Mr.
Jarschke testified that he saw an arm and a pistol extend out of the
pickup truck's driver's side window. He said that it would have
been “hard for the driver to do it.” To Mr. Jarschke, the arm and
hand looked like that of a Caucasian male but he could not tell
whether it was a left or right arm. The pistol fired three times. The
Honda continued a short distance and stopped. Mr. Jarschke told
his wife to call 911.

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Shirley Jarschke testified that it looked as if the pickup was
pursuing the Honda. The driver of the pickup was a female with
long dark hair. The driver looked “very excited” like she was “just
out joyriding.” Mrs. Jarschke saw “the pickup getting beside the
Honda and veering over.” Mrs. Jarschke saw an arm holding a gun
come out of the driver's side of the pickup truck. She acknowledged
that she told the 911 dispatcher that the shooter was the driver.

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Brent Wooldridge testified that he was northbound on
Highway 101 when he saw in his mirrors a car and a pickup that
seemed to be chasing one another. Wooldridge moved over to the
slow lane to let them pass. Wooldridge testified that the truck
moved to the side of the car and appeared to drop back to match
speeds. Wooldridge then saw an arm coming out of the driver's side
window with a gun in the hand. The arm protruded out the window
fully extended for “quite a while” by which Woodridge meant
“enough time to where he's either trying to scare the person or
trying to take aim.” Wooldridge said that the arm was “definitely”
that of a male and “it was a Caucasian arm, tanned skin, blond
hair.” Wooldridge followed the truck as it left the freeway at San
Miguel Canyon Road and he called 911. He saw the police remove
three people from the truck. When he saw the Caucasian man, he
thought, “that was the arm I saw” although he did not mention that
to the police officer who spoke to him at the time.2

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Wooldridge said that the officer did not specifically ask him who the shooter
was but that Wooldridge believed that it was “apparent” or “obvious” because the
officer said, “Yeah, his name was engraved on the gun.”

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An off-duty San Jose police officer who was driving on Highway
101 testified that he saw the pickup truck driving recklessly. It was
tailgating other vehicles in the fast lane, apparently to get them to
changes lanes. Near San Miguel Canyon Road, the officer honked
at the pickup. The officer testified that the driver, a female, “turned
towards me and she extended her middle finger of her hand,
flipping me off. And seemed to kind of laugh.... She then appeared
to turn towards the other occupants of the vehicle and appeared to
be in discussion ... with them.”
California Highway Patrol Officer Drake Wilburn assisted in
the stop of the truck. About 10 seconds before the truck stopped,
Officer Wilburn saw the middle seat passenger reach down and to
his left. Officer Wilburn was wearing sunglasses and looking
through the tinted back window of the truck from a distance of
about 15 feet. When the truck stopped, the officers found Antonio
in the right seat of the front bench seat. Appellant was in the middle
and Rubi was in the driver's seat.

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After removing the occupants from the truck, another officer
found a nine-millimeter Smith and Wesson semi-automatic
handgun in a nylon holster under and to the right side of the driver's
seat. The holster strap was snapped over the gun and the gun would
have been accessible to the middle passenger. A photograph
introduced into evidence showed the location of the holster and gun
in the truck when the police discovered it.

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Appellant was the registered owner of the truck. In the
pocket on the lower part of the door on the driver's side, the police
found a hunting license with appellant's name on it, a gun magazine
loaded with eight bullets and another loaded with 14. Inside the
pocket on the passenger's side door was a receipt from Radio Shack
with Rubi's name on it. On the passenger's side of the transmission
hump was a leather pouch with the name “Garcia” on it containing
a box cutter and a pen.
The Honda had bullet strikes in the rear passenger window
and front passenger door frame. The front and rear passenger side
windows were shattered. Soto had been killed by a shot that entered
his body below the top of his right shoulder, passed through his
chest and lodged under the back of his left armpit. Three shell
casings were found by Highway 101 and two slugs in the Honda
doors. Two of the casings were found to have come from the gun
that shot Soto. An expert witness who performed a trajectory
analysis testified that the sequence of the shots was not certain, but
that it was likely to have been that the first shot was from the rear
of the Honda, the shot from the side was second, and the shot ahead
of the Honda was last. Tests for gunshot residue found none on
appellant or Antonio. Some was found on Rubi's left palm, the tops
and palms of Soto's hands, and the passenger side of the pickup
truck.
A psychologist testified about eyewitness identification. He
said that when one is asked a question, one may engage in a
“reconstructive process” and that “there may be things that we
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didn't really see, but we just sort of add them in because it's
plausible.” He described studies that found that stress reduced the
accuracy of one's memory. He also testified about the “weapon
focus effect” in which a witness can describe a gun “pretty well”
but cannot describe the person holding it.

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Appellant was questioned by the police and a videotape of
this was shown at trial. The detective noted that appellant had a
strong odor of alcohol about him. Appellant told the detective that
he had “no idea” why he was being questioned. He said that he
picked Rubi up at her mother's house and then picked up Antonio,
who lives across the street from Rubi's mother. Rubi was driving
because appellant had been drinking. Appellant told the detective
that they had not had any problems with anyone on the road.
Appellant said that he had the loaded gun in his car because he
“just got back from the Sierras with my boys.” Appellant told the
detective that there might be gunshot residue in his truck from his
hunting trip, but he said that there would not be any gunshot
residue on his hands and asked the detective why his hands were
“the only ones bagged.” When asked why witnesses would have
pointed out his truck as the one from which the shots were fired,
appellant said, “There's a thousand maroon vehicles goin' down the
road.” Appellant repeatedly told the detective that no one shot out
of his truck and that “I didn't shoot no gun.”

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Spillman, 2009 WL 2490132 at *1-3 (footnotes in original).
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DISCUSSION
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A.

Standard of Review

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This court may entertain a petition for a writ of habeas corpus “in behalf
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of a person in custody pursuant to the judgment of a State court only on the
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ground that he is in custody in violation of the Constitution or laws or treaties of
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the United States.” 28 U.S.C. § 2254(a). The writ may not be granted with
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respect to any claim that was adjudicated on the merits in state court unless the
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state court’s adjudication of the claim: “(1) resulted in a decision that was
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contrary to, or involved an unreasonable application of, clearly established
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Federal law, as determined by the Supreme Court of the United States; or (2)
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resulted in a decision that was based on an unreasonable determination of the
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facts in light of the evidence presented in the State court proceeding.” Id. §
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2254(d).
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When “a federal claim has been presented to a state court and the state
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court has denied relief, it may be presumed that the state court adjudicated the

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claim on the merits in the absence of any indication or state-law procedural

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principles to the contrary.” Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011).

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And it is not necessary that the state court’s rejection of the federal claim be

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accompanied by reasoning for § 2254(d) to be applied. Id. at 784. “Where a

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state court's decision is unaccompanied by an explanation, the habeas petitioner's

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burden still must be met by showing there was no reasonable basis for the state

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court to deny relief.” Id.

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ

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if the state court arrives at a conclusion opposite to that reached by [the Supreme]

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Court on a question of law or if the state court decides a case differently than [the

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Supreme] Court has on a set of materially indistinguishable facts.” Williams v.

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Taylor, 529 U.S. 362, 412-13 (2000). “Under the ‘unreasonable application’

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clause, a federal habeas court may grant the writ if the state court identifies the

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correct governing legal principle from [the Supreme] Court’s decisions but

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unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.

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“[A] federal habeas court may not issue the writ simply because that court

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

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applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable.” Id. at 411. “[A] federal habeas court

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making the ‘unreasonable application’ inquiry should ask whether the state

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court’s application of clearly established federal law was objectively

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unreasonable.” Id. at 409.

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The only definitive source of clearly established federal law under 28

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U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme

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Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331

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F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be “persuasive

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authority” for purposes of determining whether a state court decision is an
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unreasonable application of Supreme Court precedent, only the Supreme Court’s

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holdings are binding on the state courts, and only those holdings need be

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“reasonably” applied. Id.

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B.

Claims & Analysis

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1.

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For his first claim, Petitioner contends that the trial court’s felony murder

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Felony Murder Instruction

instruction violated his due process rights.
a.

Due Process and Jury Instructions

A challenge to a jury instruction solely as an error under state law does not

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state a claim cognizable in federal habeas corpus proceedings. See Estelle v.

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McGuire, 502 U.S. 62, 71-72 (1991). “Even if there is some ‘ambiguity,

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inconsistency or deficiency’ in [a jury] instruction, such an error does not

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necessarily constitute a due process violation.” Waddington v. Sarausad, 555

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U.S. 179, 190 (2009) (quoting Middleton v. McNeil, 541 U.S. 433, 437 (2004)).

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“Rather, the defendant must show both that the instruction was ambiguous and

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that there was “‘a reasonable likelihood’” that the jury applied the instruction in a

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way that relieved the State of its burden of proving every element of the crime

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beyond a reasonable doubt.” Id. at 190-91 (quoting Estelle, 502 U.S. at 72

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[internal quotation marks and citation omitted]).

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The court of appeal framed the issue:

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The trial court instructed the jury that it could convict
appellant of second degree murder if it found that appellant had
killed Soto by committing a felony inherently dangerous to human
life. The trial court instructed the jury that a violation of Penal Code
section 246, discharging a firearm at an occupied motor vehicle, is a
felony inherently dangerous to human life. When appellant's case
was first before this court, he contended, “The trial court erred
prejudicially in instructing on second-degree felony-murder
predicated on violation of section 246.” In our first opinion, this
court discussed a number of cases on the subject, including People
v. Hansen (1994) 9 Cal. 4th 300, People v. Robertson (2004) 34
Cal. 4th 156, and People v. Randle (2005) 35 Cal. 4th 987. We said,
“Although appellant makes a well-reasoned, thorough, and
thoughtful argument, California Supreme Court precedent compels
us to reject it.” The Supreme Court granted appellant's petition for

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review and deferred action pending disposition of People v. Chun
(2009) 45 Cal. 4th 1172. Chun overruled Hansen, Robertson and
Randle. On June 12, 2009, the Court transferred this case to us with
directions to vacate our decision and to reconsider the cause in light
of Chun. We have received supplemental briefs from the parties
addressing Chun's applicability to this case.

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In Chun, the California Supreme Court undertook a historical
review of the second degree felony murder doctrine and the merger
doctrine. The court concluded, “In determining whether a crime
merges, the court looks to its elements and not the facts of the case.
Accordingly, if the elements of the crime have an assaultive aspect,
the crime merges with the underlying homicide even if the elements
also include conduct that is not assaultive.” (Chun, supra, 45 Cal.
4th 1172, 1200.) The court specifically said, “When the underlying
felony is assaultive in nature, such as a violation of section 246 or
246.3, we now conclude that the felony merges with the homicide
and cannot be the basis of a felony-murder instruction.” (Ibid.)
Thus, the trial court erred in instructing on felony murder based on a
violation of section 246.

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Spillman, 2009 WL 2490132 at *4.
The instruction here opened a way for the jury to find petitioner guilty of

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second degree murder without the usual requirement that he have acted with

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malice, the felony-murder rule taking the place of that element. But the felony

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involved in petitioner’s case was section 246 of the penal code, and Chun held

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that section 246 could not be the basis for application of the felony-murder rule.

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The instruction thus was the functional equivalent of an instruction that omitted

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an element, because it permitted the jury to find petitioner guilty of second degree

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murder on a theory that under California law was invalid. Giving the instruction

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was a violation of due process. See Evanchyk v. Stewart, 340 F.3d 933, 939 (9th

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Cir. 2003) (violation of due process for jury instruction to omit element of crime).

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b.

Prejudice

After concluding that a violation of penal code section 246 could not be the

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basis for felony-murder, the court in Chun concluded that the error there was

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harmless. People v. Chun, 45 Cal. 4th at 1205. In this case the court of appeal

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did likewise, applying the “harmless beyond a reasonable doubt” standard for

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federal constitutional claims established in Chapman v. California, 386 U.S. 18,
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24 (1967), and concluding that the error here was harmless. Spillman, 2009 WL

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2490132 at *8. The standard for harmless error is different for the same claim in

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a federal habeas case like this one, however.

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A conviction based on a general verdict is subject to challenge if the jury

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was instructed on alternative theories of guilt, as here, and may have relied on an

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invalid one – here, the felony murder theory. See Hedgpeth v. Pulido, 555 U.S.

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57, 58 (2008) (per curiam). Such instructional error is not structural; rather, a

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reviewing court must apply the harmless-error analysis set forth in Brecht v.

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Abrahamson, 507 U.S. 619 (1993), and determine whether the error had a

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

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Id. (reversing Ninth Circuit’s application of structural error analysis and

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remanding for application of Brecht). Use of this standard is appropriate, whether

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or not the state appellate court recognized the error and reviewed it for

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harmlessness under the Chapman standard. Fry v. Pliler, 551 U.S. 112, 121-22

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(2007); Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000). As the Supreme

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Court stated in Fry, it would make “no sense to require formal application of both

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tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the

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former.” Fry, 551 U.S. at 120 (emphasis in original); see also Merolillo v. Yates,

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No. 08-56952, slip op. 20935, 20955-56 (9th Cir. 2011) (“In light of Fry and

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Pliler, we hold that the Brecht ‘substantial and injurious effect’ standard governs

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our harmless error review in this case.”); Pulido v. Chrones, 629 F.3d 1007, 1012

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(9th Cir. 2010) (holding that Fry means that federal habeas court “need not”

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conduct an AEDPA/Chapman analysis in addition to applying Brecht).

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The court of appeal provided an extensive explanation why the error was

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harmless beyond a reasonable doubt. Spillman, 2009 WL 2490132 at *4-8. The

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court reasoned that (1) because the jury convicted petitioner of second degree

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murder but was unable to agree on the enhancement allegations that he personally

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used a firearm, “some jurors believed appellant was the shooter and some were
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not convinced that he was;” (2) as to those jurors who believed he was the

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shooter, the erroneous felony-murder instruction was harmless beyond a

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reasonable doubt; (3) as to those who thought Rubi was the shooter, the evidence

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was such that petitioner must have handed her the gun, thereby aiding and

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abetting at least the offense of brandishing a gun; (4) “conscious-disregard-for-

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life” murder was a natural and probable consequence of brandishing in this

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context; so (5) on these facts, any juror, whether the juror thought petitioner was

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the shooter or aided and abetted Rubi in the shooting, would have found him

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guilty of second degree murder, even if the faulty felony-murder instruction had

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not been given. Id. at *7.
The court of appeal held that the error was harmless beyond a reasonable

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doubt based on the above reasoning. Id. at *8. And for the same reasons, this

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court holds that the erroneous instruction could not have had a substantial and

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injurious effect, the more lenient standard for harmless error in federal habeas

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cases. This claim is without merit.

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2.

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Petitioner contends that his right to present a defense was violated by the

Gang Evidence

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trial court’s exclusion of gang evidence that would have supported his theory that

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Rubi was the shooter. The court of appeals explained:

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Before appellant's first trial[3] on these charges, he sought to
introduce evidence to support a defense theory of third party
culpability. [Footnote omitted] Appellant's theory was that Soto's
death was a gang motivated shooting, that Rubi Garcia and Antonio
Garcia were Norteno gang members, that Rubi perceived Soto to be
a Sureno gang member because he was wearing blue, and that Rubi
was the shooter. The theory included the element that Antonio
Garcia's testimony that appellant was the shooter was false because
of his bias in favor of Rubi because of their gang ties. Both counsel
for Rubi and the prosecutor argued against the introduction of any

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“At appellant's first trial, the prosecutor had presented evidence and argument
to support the theory that appellant fired the gun and that Rubi was an aider and abettor.
Although the jury was unable to reach a unanimous verdict as to appellant, Rubi was
convicted.” Id. at *9 (footnote not in original).

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gang evidence, including the testimony of a gang expert witness,
but their objections were overruled and the evidence was admitted.
The trial court based its decision to admit the evidence concerning
gang membership on proposed defense evidence that one Michelle
Johnson, who had been a fellow inmate with Rubi and had recently
been interviewed by an investigator with the District Attorney's
Office, would testify that Rubi had admitted to her that she shot
Soto because she had thought that he was a Sureno. Appellant's trial
counsel had argued that because Michelle Johnson would testify
about Rubi's admission, evidence of gang membership of Rubi and
Antonio and gang expert testimony was required in order to make
the admission understandable to the jury. The trial court agreed.

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As it turned out, Michelle Johnson did not testify.
Nevertheless, the other gang evidence, including the expert
testimony, was admitted at appellant's first trial. After the receipt of
this evidence, the trial court reflected on its ruling regarding the
admissibility of the gang evidence and stated, “the Court made
certain rulings in this case concerning gang evidence. The rulings
that the Court made at the time were predicated upon the
information the Court had before it at the time, which included a
belief of the attorneys, that a statement by Michelle Johnson that
had been ruled admissible by the Court would in fact be utilized in
this case. [¶] And the Court, based a number of its rulings as to
admissibility of gang evidence on the statements that were
attributed to Rubi Garcia in that particular statement.... Had the
Court known at that time that the Michelle Johnson statement or
testimony would not be offered, the Court's review of that particular
gang evidence and its admissibility may very well have been
different and even somewhat more limited or excluded in its
entirety. [¶] And the Court felt compelled to put that on the record
should a reviewing court at some point in time need to review the
admissibility of that evidence and the court's rationale or thought
process as to why that evidence was admitted.”
(People v. Garcia, H028474, p. 14.)
The first trial ended with a mistrial being declared as to
appellant and a first degree murder conviction as to Rubi. Following
the first trial, Rubi Garcia appealed her conviction to this court,
arguing that the trial court had erred by admitting the gang
membership evidence and by permitting appellant's gang expert to
testify. This court reviewed the strength of the gang evidence and
concluded, “Given the exceedingly low probative value of this
evidence, and its powerful prejudicial impact, and with due
consideration of the deferential standard of review, we find that its
admission was an abuse of discretion.” (People v. Garcia, H028474,
p. 19.) This court reversed Rubi Garcia's conviction.
Before appellant's second trial, in which he was the sole
defendant, appellant once again sought admission of the gang
evidence. He brought a motion “to present evidence of third party
culpability, gang evidence, and gang expert testimony.” The motion
repeatedly referred to, and attached as an exhibit, the interview with
Michelle Johnson conducted by the investigator in August 2004.
Defense counsel argued that evidence of gang membership of Rubi
and Antonio was relevant to show bias and relevant on the issue of
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“motive, identity, or intent.” Defense counsel said that the gang
evidence was “highly probative of what Rubi Garcia's intent and
motive would have been to go from what is road rage, at least as the
thing that might have drawn their attention to this person to rise to
the next level of actually going so far as to shoot and kill.” Neither
Rubi Garcia nor Michelle Johnson testified.

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The trial court denied the defense motion. The trial court said
that “absent the statement of Michelle Johnson, there really just is a
category of evidence in which it could be said, could be interpreted
that they are gang members. The driving down the road, next thing
that happens is Mr. Soto gets shot. There isn't anything in the two of
those, absent her statement, that creates what the Court calls a
nexus.” The court also said that it was excluding the evidence under
Evidence Code section 352 because the probative value of the
proposed evidence was outweighed by the “undue consumption of
time” and “substantial danger [of] confusing [the] issues or
misleading the jury.”

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The court of appeal considered whether the evidence should have been

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admitted to show a motive for Rubi to have committed the crime (third party

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culpability evidence) or to show a motive to fabricate on Antonio’s part. The

15

court concluded that without the Michelle Johnson testimony, the theory that Rubi

16

was the shooter and motivated by gang rivalry “had no support.” Id. at *13. Even

17

without the gang evidence counsel was able to argue that Rubi was the shooter

18

and present evidence to support that proposition, so the third-party culpability

19

defense was not completely stymied. Id. That is, the exclusion of the gang

20

evidence barred the defense from arguing that as a motive, but petitioner was still

21

able to argue that Rubi was the shooter and that road rage was the motive. The

22

court also noted that in fact the only evidence that the victim was a Sureno was

23

that he was wearing blue work clothes. Id.

24

As to the argument that the gang evidence would have shown a motive to

25

fabricate on Antonio’s part, a motive to shift the blame from his fellow Norteno to

26

Spillman, the court concluded that the “evidence of Rubi’s Norteno gang

27

affiliation was weak,” and the excluded evidence would have taken “a fair amount

28

of time to present and presented a danger of confusing the jury. More
12

1

importantly, it did not have any significant probative value.” Id. And petitioner

2

was able to present evidence that Antonio and Rubi were close, so he was not

3

completely prevented from pursuing the “motive to fabricate” argument. See id.

4

The court therefore concluded that excluding the evidence under section

5

352 of the California Evidence Code was not error. Id. It did not discuss the

6

federal aspects of the claim.

7

Exclusion of defense evidence, even when proper under state law, can

8

violate due process or a defendant’s rights under the Confrontation Clause. See

9

Holmes v. South Carolina, 547 U.S. 319, 1731 (2006) (although state lawmakers

10

have “broad latitude” to establish rules excluding evidence in criminal trials, that

11

latitude has constitutional limits). Regardless of the amendment in which the

12

right to a defense is grounded, the analysis is the same. Id. (whether right is

13

rooted in the Due Process Clause of the Fourteenth Amendment or Compulsory

14

Process Clause or Confrontation Clause, Constitution guarantees meaningful

15

opportunity to present defense, which is abridged by state evidence rules that

16

infringe on weighty interest of accused and are arbitrary or disproportionate to

17

their purposes); Crane v. Kentucky, 476 U.S. 683, 690-91 (1986) (right to present

18

a defense may be rooted in the Fourteenth Amendment's Due Process Clause or in

19

the Sixth Amendment's confrontation or compulsory process clauses); see also

20

Rock v. Arkansas, 483 U.S. 44, 56-62 (1987) (right to testify arising from the

21

Fourteenth Amendment’s due process clause, Sixth Amendment’s Compulsory

22

Process Clause, and Fifth Amendment’s right not to be compelled to testify). The

23

Ninth Circuit has summarized the rule as "states may not impede a defendant's

24

right to put on a defense by imposing mechanistic (Chambers) or arbitrary

25

(Washington and Rock) rules of evidence." LaGrand v. Stewart, 133 F.3d 1253,

26

1266 (9th Cir. 1998) (referring to Chambers v. Mississippi, 410 U.S. 284 (1973)

27

(due process case); Washington v. Texas, 388 U.S. 14 (1967) (due process case);

28

and Rock v. Arkansas, 483 U.S. 44 (1987) (due process. compulsory process,
13

1

Fifth Amendment’s right not to testify).

2

The question then is whether the California evidentiary rule as applied here

3

unreasonable, arbitrary or disproportionate to the purpose it is intended to serve.

4

The purpose of the rule is to allow the trial courts to exclude evidence which has

5

minimal probative value compared with the cost of admitting it – costs in the

6

potential for unfair prejudice, the amount of time that would be consumed, or the

7

confusion it would cause the jury. The rule is flexible by its terms,

8

allowing the trial court to balance the value of the evidence against the

9

disadvantages of admitting it, and for the reasons set out by the court of appeal,

10

the rule as applied in this case did not prevent petitioner from presenting his third-

11

party culpability defense or arguing that Antonio’s testimony was suspect because

12

of his friendship with Rubi. The rule as applied here was not unreasonable,

13

arbitrary or disproportionate to the purpose it is intended to serve.

14

Because there was no constitutional violation, the rejections of these

15

claims by the state appellate courts were not contrary to, or unreasonable

16

applications of, clearly-established United States Supreme Court authority.

17

CONCLUSION

18

The petition for a writ of habeas corpus is DENIED. A certificate of

19

appealability under 28 U.S.C. § 2253(c) is DENIED because petitioner has not

20

demonstrated that “reasonable jurists would find the district court’s assessment of

21

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,

22

484 (2000). The clerk shall enter judgment in favor of respondent and close the

23

file.

24

SO ORDERED.

25

DATED:

26

March15, 2012
CHARLES R. BREYER
United States District Judge

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