Hayes v. Hedgpeth et al

Filing 23

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABLITY. The clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file. Signed by Judge Edward J. Davila on 11/1/2012. (ecg, COURT STAFF) (Filed on 11/2/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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MILTON N. HAYES,

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Petitioner,
vs.

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ANTHONY HEDGPETH, Warden,
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Respondent.
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No. C 11-00161 EJD (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner has filed a pro se Petition for a Writ of Habeas Corpus under 28

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U.S.C. § 2254 challenging a judgment of conviction from Alameda County Superior

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Court. For the reasons set forth below, the Petition for a Writ of Habeas Corpus is

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DENIED.

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PROCEDURAL BACKGROUND

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In 2008, a jury convicted Petitioner of first degree murder. Resp. Ex. 11 at 1;

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Pet. at 2. The state trial court sentenced Petitioner to a term of seventy-five years to

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life in state prison. Resp. Ex. 11 at 1. On May 13, 2010, the state appellate court

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affirmed the judgment. Resp. Ex. 11. On September 1, 2010, the California

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Supreme Court denied review. Resp. Ex. 13.

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Petitioner filed this instant petition for a writ of habeas corpus on January 11,
2011. Doc. #1.

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DISCUSSION
A.

Factual Background
The facts of Petitioner’s underlying offenses were summarized in the state

appellate court’s opinion:

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A.

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On the evening of Sunday, July 25, 1999, Charles Turner
was parked at the San Leandro marina when he heard a woman’s
voice. Forty or fifty yards away from him, he saw a short,
heavyset White woman [FN2] get out of a car with her shoes in
her hands and walk away. A tall, muscular Black man [FN3] in
dark pants walked up to her, gripped her arm and tried to bring her
back. The woman told him to leave her alone. The man turned
her loose and she walked on toward the boat dock. The man got
into his dark-colored Cadillac, made a U-turn in it and drove to a
location almost 200 feet away from where his car was first parked.
He parked the Cadillac a short distance from the woman.

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For the Northern District of California

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The Crime and Investigation

FN2. Turner testified that the woman might have been six
to eight inches shorter than the assailant. Zepeda was five
feet eight inches tall. Hayes admitted that he was five feet
11 inches tall.

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FN3. At different times, Turner described the man as six
feet four inches tall and close to six feet tall. He also said
that the man was taller than Turner himself, who stood five
feet 11 inches tall.

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Turner was curious, so he drove his truck closer to where
the two people were. As he watched, the man got out of his car,
walked up to the woman and hit her in the face. She fell back
onto the sidewalk and the man stomped her repeatedly with his
foot. [FN4] Then, the man got into the Cadillac and quickly
drove away from the marina.
FN4. At the preliminary hearing, Turner testified that he
could not see the woman after she fell, because a row of
hedges blocked his view.
Turner and several other eyewitnesses to the assault went
to the injured woman, who lay gasping and moaning. She was
barely moving. Someone called the police. When San Leandro
police arrived shortly after 10:00 p.m., they found the woman
lying in a pool of blood on the marina sidewalk. She had been
severely beaten. Her face and hair were bloodied. Head wounds

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exposed her skull and brain tissue. The unidentified woman was
taken to a hospital for treatment. Turner gave police a general
description of a Black male who fled the scene in a dark-colored
Cadillac.

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The next morning, on Monday, July 26, 1999, the woman
died. Having learned that she was Tina Zepeda, the police went to
her home and advised her family of her death. The police learned
that Zepeda was last seen the day before in the company of her
boyfriend of 18 months – appellant Milton Nathaniel Hayes.
Zepeda and Hayes left her home about 2:00 p.m. in Hayes’s blue
Cadillac, saying they were going to attend a kite festival. [FN5]
At that time, Hayes was reportedly wearing blue jeans, a flannel
shirt and white shoes.

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FN5. There was evidence that Zepeda had purchased the
Cadillac and gave it to Hayes to drive.
Directed to the nearby Oakland home where Hayes lived
with his parents, the police found Hayes there. He told them that
he had left his car and Zepeda at the San Leandro marina at 6:00
p.m. the night before, had returned home by 8:00 p.m. and had
spent the night there. However, Hayes’s father told police that his
son had not spent the night at home – instead, it appeared that he
had spent the night in Oakland with Yvette Anderson, his former
girlfriend. Hayes was arrested for Zepeda’s killing.

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San Leandro police went to Anderson’s home and
questioned her. She told police that Hayes appeared at her door
about 10:00 p.m. on the previous evening. He had been wearing
black dress slacks, a multi-colored sweater and black shoes.
Hayes had been drinking – he had a beer in his hand – and he
seemed nervous. His hand was cut and bleeding. He told
Anderson that he had gotten into an argument with one of his
partners and hurt him badly. Anderson bandaged the wound.
Hayes also told Anderson that he had argued with his new
girlfriend and that they had separated. Sometime that evening,
Anderson moved his car, which was blocking her neighbor’s
driveway. Before he left the next morning, Hayes told Anderson
that he did not need the car because he would be going away for a
while. She asked if he meant that he would go to jail and he did
not answer. He told her that she could keep the car. The police
searched Anderson’s home, but found nothing inside. Hayes’s
blue Cadillac was found near her home.

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Armed with a search warrant, San Leandro police searched
Hayes’s home. They found a pair of dress shoes, a pair of gray
pants with a rust-colored stain, a jacket, indicia of Hayes’s
occupancy, and keys. Some of these items came from Hayes’s
bedroom and some were found in a laundry room crevice.
Anderson identified the clothing as those Hayes wore on Sunday
night.

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One of the keys found in Hayes’s bedroom fit the blue
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Cadillac that was parked near Anderson’s home. The Cadillac
was seized and searched for evidence. Human blood was found
on the gas pedal, the steering wheel cover, the horn cover and the
driver’s seat of the car.

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Blood samples were taken from Hayes and from Zepeda’s
body. DNA testing later established that the blood found on the
gas pedal of the Cadillac, the dress slacks and the shoes found at
Hayes's home matched Zepeda’s DNA [FN6] and could not have
been his.

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FN6. The DNA typing expert used a typing method that
matched nine segments of DNA with the control samples.

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B. Pretrial Matters
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For the Northern District of California

United States District Court

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On July 28, 1999, Hayes was charged with the first degree
murder of Zepeda. Counsel was appointed to represent him.
After a preliminary hearing, Hayes was held to answer for murder
in January 2001. An information was filed, alleging that Hayes
was guilty of murder and that he had suffered six prior
convictions. (§§ 187, 667, subds.(a), (e)(2)(A)(i), 1170.12, subd.
(c)(2)(A).) Hayes entered a plea of not guilty and denied the truth
of the prior conviction allegations.
In the next few years, the trial court repeatedly evaluated
whether Hayes was competent to stand trial. Again and again,
criminal proceedings were suspended, only to be reinstated a few
months later. (§ 1368.) During this period, Hayes was committed
to Atascadero State Hospital for a time. (§ 1370.) By September
2005, when criminal proceedings were reinstated for the last time,
one mental health expert advised the trial court of his opinion that
Hayes was malingering.

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During those times when criminal proceedings were
ongoing, the prospect of an insanity trial arose. In October 2004,
Hayes personally withdrew his 2001 not guilty plea and entered a
dual plea of not guilty and not guilty by reason of insanity (NGI).
(§ 1027.) The trial court ordered mental health experts to provide
a report evaluating Hayes's sanity. (§§ 1026-1027.) In July 2005,
a psychologist advised the trial court that in his opinion, Hayes
had been able to understand the significance and consequences of
his acts at the time of Zepeda’s attack.

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Until the fall of 2005, a series of appointed attorneys
represented Hayes. He filed Marsden [FN7] motions against one
of them in May and June 2005. In late September 2005, Lisa
Alexholland was retained by Hayes’s family and substituted in as
his attorney of record. The following month, she withdrew
Hayes’s NGI plea and entered a not guilty plea.
FN7. People v. Marsden (1970) 2 Cal.3d 118.

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Hayes’s relationship with his retained counsel was also
difficult. A year later, Hayes wrote to the trial court, complaining
about Alexholland’s representation of him. He wrote that she had
not discussed the case with him and refused to turn over to him
tapes that had been made by her investigator of reports on two
potential witnesses. Hayes stated that the evidence on these tapes
would show that one of the witnesses against him had admitted to
lying and that another witness could prove that someone else
committed the crime. He also told the trial court that his attorney
had given these reports to the prosecution and that the prosecutor
was withholding evidence that would prove his innocence.
In February 2007, an amended information was filed in this
matter. [FN8] The amended information alleged that Hayes
murdered Zepeda with malice aforethought and that this offense
was both a serious and a violent felony. (§ 187, subd. (a); former
§§ 667.5, subd. (c)(1), 1192.7, subd. (c)(1).) [FN9] It also alleged
his six prior convictions and noted that his prior convictions for
forcible rape and forcible oral copulation required him to be
sentenced pursuant to the Three Strikes law. (§§ 667, subd. (e)(2),
1170.12, subd. (c)(2).) Hayes’s demurrer to the amended
information was overruled in April 2007. At that time,
Alexholland entered a not guilty plea on behalf of her client.
Hayes was present at this hearing, but did not personally enter a
plea.
FN8. The clerk’s transcript did not contain a copy of an
amended information. Two copies of an amended
information were provided to us on appeal by
augmentation. One is unfiled and the other appears was
filed but the date stamp is partly illegible. To the degree
that the file stamped copy of the amended information is
legible, its date appears to be consistent with references to
a February 23, 2007 first amended information cited in a
minute order of the same date and in Hayes’s demurrer to
the amended information. We deem the unfiled amended
information to have been filed on or about February 23,
2007.

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FN9. Although subdivision (c)(1) of sections 667.5 and
1192.7 has been amended since Zepeda’s death in 1999,
the former versions of those subdivisions are substantially
the same as current law. (See §§ 667.5, subd. (c)(1),
1192.7, subd. (c)(1); Stats.1998, ch. 936, § 13.5, pp.
6882-6885; Stats.1997, ch. 504, § 2, pp. 3141-3143.)

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On the eve of trial in August 2007, Hayes sought to
discharge Alexholland as his counsel. He argued that his attorney
was not communicating with him about his case and that she had
not fully investigated it. He claimed that after her investigator
came to her with information from two witnesses that proved his
innocence, she fired the investigator. The trial court denied the

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motion.

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The following day, Hayes’s challenge to the trial judge was
denied. He also expressed his intention to fire Alexholland and
represent himself, but he later withdrew that request. On August
9, 2007, Alexholland filed a confidential motion to withdraw,
citing a breakdown in communications between Hayes and herself
affecting her ability to effectively represent him. The trial court
granted this motion.

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From this point on, Hayes was represented by a public
defender. In April 2008, the public defender was still undecided
about whether to enter an NGI plea. As the trial date approached
again, Hayes’s public defender successfully moved to bifurcate
trial of the murder charge from trial on the prior conviction
allegations. A motion to suppress Hayes’s prearrest statement to
San Leandro police was denied. The trial court also denied
Hayes’s motion to dismiss based on a claim that Alexholland had
provided him with ineffective assistance of counsel.

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C. Trial and Sentencing

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In July and August 2008 – nine years after Zepeda’s death
– the jury heard the evidence in the case. At trial, Charles Turner
testified about what he saw between 8:00 and 10:00 p.m. on the
night that she was attacked. He identified a photograph of
Hayes’s Cadillac as resembling the car that fled the scene.

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For the Northern District of California

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Former San Leandro Police Sergeant Christopher Lux and
San Leandro Police Detective Doug Calcagno testified about their
investigation into Zepeda’s death, which led them to Hayes’s
home. There, they spoke with Hayes and his father. Hayes had a
fresh cut on the knuckle of his right hand. Calcagno observed that
Hayes was wearing clothing different from what Zepeda’s son had
described him as wearing the day before. When Lux asked Hayes
when he had last seen Zepeda, Hayes said that he had left her at
6:00 p.m. the day before at the San Leandro marina. He added
that he had left Zepeda and his car with a friend and had gone
home, where he had been since 8:00 p.m. Hayes could not
provide police with either the name of the friend or the present
location of his car.
Hayes’s parents and Detective Calcagno went outside,
leaving Lux with Hayes in the house. Calcagno learned from the
elder Hayes outside the house that the son had not come home the
night before, but had been picked up in Oakland that morning.
Calcagno testified that Hayes’s father told him that when he went
to pick up Hayes in Oakland, the blue Cadillac was in front of the
house. [FN10] Hayes’s father told Calcagno that Hayes was
wearing the same clothes then that he had on in Oakland earlier
that day.
FN10. At trial, Hayes’s father testified that when he met
his son earlier that morning, he did not see the car.

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Calcagno’s report made no mention of any statement from
Hayes's father about seeing the Cadillac that morning.

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In a few minutes, another officer [FN11] came to sit with
Hayes while Lux went outside to speak with Calcagno. Lux and
Calcagno conferred about the information that Hayes’s father had
provided. At this point, Lux decided that Hayes would be arrested
for the murder of Zepeda. When Hayes walked out of the house,
he was arrested. Hayes was placed in the back of the unmarked
car and soon transported to the police department. At the time of
his arrest, Hayes was wearing blue jeans and a sweater.
FN11. The officer Lux and Calcagno identified did not
recall being in the house with Hayes and Lux, nor did his
report include any reference to his presence there.
The jury also saw photographs of Zepeda’s injuries. An
expert pathologist testified that Zepeda’s face had been crushed,
resulting in numerous external and internal injuries. She died as
the result of extensive blunt trauma to the head and face, inflicted
by many blows inflicted with a lot of force. Her injuries were
consistent with having been stomped on repeatedly while she was
on the ground. Zepeda had a blood-alcohol level of 0.16.
Hayes’s father testified at trial. He told the jury that his
son had not spent the night of Sunday, July 25, 1999, at his home.
At 8:45 a.m. on Monday morning, July 26, 1999, the father had
picked Hayes up at Anderson’s house and brought him home.
Back at home, the family learned that Zepeda had been killed –
news that upset Hayes.

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After the People completed their case-in-chief, Hayes
moved for acquittal on the first degree murder charge, arguing that
no evidence of premeditation or planning had been presented. (§
1118.1.) The prosecution argued that the physical evidence
provided sufficient evidence to support a finding of first degree
murder. The trial court denied the acquittal motion.
In Hayes’s defense, the public defender offered a mistaken
identity defense. The defense brought out evidence that Hayes
was shorter than the taller assailant that Turner described. (RT
431, 463, 465, 467, 909; see RT 1590-1591) Beer cans found near
the place where the Cadillac was first parked at the San Leandro
marina were of a brand different from the one Anderson recalled
Hayes drinking that night. The public defender also highlighted
differences between the clothing that Hayes wore at the time of
his arrest, the clothing that Turner described the assailant as
wearing, and the clothes seized by police that were purportedly
stained with Zepeda’s blood.
The defense also offered alibi evidence, suggesting that
Hayes could not have been at the San Leandro marina when
Zepeda was killed about 10:00 p.m. Anderson testified that after
Hayes came to her home on Sunday evening, they walked to a

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convenience store to buy some beer. The owner of the
convenience store testified that the store had closed at 9:00 p.m.
Charles Roberson told the jury that the night when Zepeda was
attacked, he gave Anderson and Hayes a ride from Hayes’s house
to Anderson’s home. He testified that this happened just as it was
getting dark – sometime between 8:30 and 9:30 p.m. [FN12]

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FN12. On cross-examination, Roberson admitted that
although he knew Zepeda and knew that Hayes had been
arrested for killing her, he did not give this information to
police in 1999.

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The public defender also challenged the recovery,
documentation and storage of the physical evidence during the
years between Zepeda’s death in 1999 and the time of the 2008
trial. During argument, he suggested that someone tampered with
the physical evidence, rendering it unreliable to support a murder
conviction.

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In August 2008, a jury found Hayes guilty of first degree
murder with malice aforethought. (§ 187.) The prosecution put
on evidence of two of the six alleged prior convictions at a court
trial. When that trial was completed, the court found that Hayes
had suffered these two prior convictions and that they constituted
strikes. (§ 667, subd. (d)(1).) Hayes’s motion to strike one or
both of these prior convictions was denied. In October 2008, he
was sentenced to 75 years to life in state prison – 25 years to life
for the murder conviction, tripled because of his two prior strikes.
(§ 667, subd. (e)(2)(A)(i).)

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People v. Hayes, No. A123433, 2010 WL 1918711 at *1-*5 (Cal. Ct. App. May 13,

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2010). Resp. Ex. 11.

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B.

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For the Northern District of California

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Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a

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person in custody pursuant to the judgment of a State court only on the ground that

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he is in custody in violation of the Constitution or laws or treaties of the United

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States.” 28 U.S.C. § 2254(a). The writ may not be granted with respect to any

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claim that was adjudicated on the merits in state court unless the state court’s

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision

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that was based on an unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if

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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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Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529

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U.S. 362, 412-13 (2000). The only definitive source of clearly established federal

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law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the

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Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412;

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Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be
“persuasive authority” for purposes of determining whether a state court decision is

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For the Northern District of California

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an 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. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled

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on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

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“Under the ‘unreasonable application’ clause, a federal habeas court may

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grant the writ if the state court identifies the correct governing legal principle from

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[the Supreme Court’s] decisions but unreasonably applies that principle to the facts

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of the prisoner’s case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)’s

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‘unreasonable application’ clause, . . . a federal habeas court may not issue the writ

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simply because that court concludes in its independent judgment that the relevant

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state-court decision applied clearly established federal law erroneously or

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incorrectly.” Id. at 411. A federal habeas court making the “unreasonable

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application” inquiry should ask whether the state court’s application of clearly

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established federal law was “objectively unreasonable.” Id. at 409. The federal

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habeas court must presume correct any determination of a factual issue made by a

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state court unless the petitioner rebuts the presumption of correctness by clear and

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convincing evidence. 28 U.S.C. § 2254(e)(1).

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The state court decision to which Section 2254(d) applies is the “last

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reasoned decision” of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-

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04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there

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is no reasoned opinion from the highest state court considering a petitioner’s claims,

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the court “looks through” to the last reasoned opinion. See Ylst, 501 U.S. at 805;

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Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Where the state

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court gives no reasoned explanation of its decision on a petitioner’s federal claim

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and there is no reasoned lower court decision on the claim, an independent review of

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the record is the only means of deciding whether the state court’s decision was
objectively reasonable. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

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Recently, the Supreme Court vigorously and repeatedly affirmed that under

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AEDPA, there is a heightened level of deference a federal habeas court must give to

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state court decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam);

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Harrington v. Richter, 131 S. Ct. 770, 783-85 (2011); Premo v. Moore, 131 S. Ct.

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733, 739-40 (2011); Felkner v. Jackson, 131 S. Ct. 1305 (2011) (per curiam). As the

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Court explained: “[o]n federal habeas review, AEDPA ‘imposes a highly deferential

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standard for evaluating state-court rulings’ and ‘demands that state-court decisions

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be given the benefit of the doubt.’” Id. at 1307 (citation omitted). With these

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principles in mind regarding the standard and limited scope of review in which this

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Court may engage in federal habeas proceedings, the Court addresses Petitioner’s

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claims.

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C.

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Claims and Analysis
Petitioner raises the following grounds for federal habeas relief: (1) the trial

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court erred by failing to suppress evidence of Petitioner’s pre-arrest statement to

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police; (2) there was insufficient evidence to support the first degree murder

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conviction; (3) the trial court erred by failing to hold a trial on Petitioner’s insanity

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plea; and (4) the trial court erred by denying Petitioner’s motion to dismiss based on

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ineffective assistance of counsel. Each claim is analyzed in turn below.

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Petitioner claims that his pretrial statements should not have been introduced

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because he was “in custody” at the time the police questioned him at his house, and

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the police had not given him his Miranda1 rights.

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The state appellate court summarized the pretrial events as follows:

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Before trial, the trial court conducted a hearing on Hayes’s
motion to suppress [his] prearrest statement. It heard this
testimony about the investigation of the Zepeda homicide made by
Sergeant Lux and Detective Calcagno: On the night of Sunday,
July 25, 1999, Calcagno received information that the man who
assaulted Zepeda fled the San Leandro marina in a dark Cadillac.
The next morning, Lux and Calcagno went to Zepeda’s Oakland
address. They learned that Zepeda had last been seen the day
before with Hayes, who was identified as her boyfriend. Zepeda
and Hayes were known to frequent the San Leandro marina. The
location of Hayes’s home in Oakland and a description of his blue
Cadillac were given to the officers. The police ran a computer
check on Hayes, which confirmed some of the information they
had received.

8
9
10
11
For the Northern District of California

United States District Court

Motion to Suppress - Miranda claim

12
13
14

Lux and Calcagno went to the Hayes residence, but no blue
Cadillac was seen nearby. There, they encountered Hayes’s
father, who told them that he had just learned of Zepeda’s death.
When Lux asked if they could go into the house to talk with
Hayes, the father agreed. Lux told the trial court that at this point,
he did not consider Hayes a suspect. However, Calcagno believed
that Hayes was a suspect because his Cadillac matched the
description of the car seen at the scene of the attack.

15
16
17
18
19

Inside the house, Lux identified himself to Hayes as a San
Leandro police officer and advised him that the police were
investigating Zepeda’s death. Hayes was crying and upset. Lux –
who, along with Calcagno, was dressed in plain clothes – said that
he wanted to ask Hayes some questions. According to Lux, Hayes
began talking and Lux let him do so. [FN14] Hayes told the
police that he had been with Zepeda the previous day at a
Berkeley kite fair and later at the San Leandro marina. He last
saw her about 6:00 p.m. when he left her – and his blue Cadillac –
with a friend of his at the marina. He told police that he arrived
home at 8:00 p.m. and spent the night at his parents’ house. When
Lux asked, Hayes was unable to identify the friend to whom he
had loaned his car. Hayes also said that he did not know where
his car was. Lux testified that this inquiry was the only one he
recalled making.

20
21
22
23
24
25
26
27
28

1

Miranda v. Arizona, 384 U.S. 436 (1966).

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1

FN14. For his part, Calcagno testified that Lux asked
questions, which Hayes answered.

2
3
4
5

Hayes’s parents and Calcagno were present during the
interview. When Hayes's father asked if it would be better if he
and his wife left, Hayes agreed that it would. The parents went
outside with Calcagno; Lux remained with Hayes. Lux waited for
Hayes to say more, but none was forthcoming. He testified that
Hayes was not under arrest at the time that they spoke – in his
mind, Hayes was merely a suspect.

6
7
8
9

11
For the Northern District of California

United States District Court

10

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

When Calcagno was outside with Hayes’s parents, he
questioned the father. The elder Hayes told Calcagno that his son
had not slept at his house the night before and that he had picked
him up at Yvette Anderson’s home about 8:45 a.m. that morning.
At Anderson’s home, the father had seen Hayes standing next to
his Cadillac. Within five minutes after the parents went outside
with Calcagno, Lux joined them. Detective Calcagno told Lux
what Hayes’s father reported to him.
Lux told the trial court that, at this point, he decided that
Hayes was going to be arrested. When Hayes walked out of the
house, he was arrested. Lux did not handcuff Hayes – he wanted
to talk with the accused later and hoped to maintain a good rapport
with him. Lux did not ask Hayes any more questions at that time.
During this encounter, both Lux and Calcagno were carrying
concealed weapons that neither drew out.
Resp. Ex. 11 at 9-11.
The state appellate court rejected this claim, explaining:
Hayes argues the fact that Lux and Calcagno were armed
police officers supports his claim that he was in custody. There
was evidence that Lux and Calcagno were armed and that they
carried their weapons under their clothing. Neither of them had
cause to display their weapons. There was no evidence that Hayes
was coerced by any display of weapons or that he even saw the
guns that one would presume a police officer would carry. To the
extent that Lux’s post-statement conduct is relevant, we observe
that he chose not to have Hayes handcuffed. This tends to suggest
an overall low-key, noncoercive approach that contradicts Hayes’s
claim of coercion. Thus, we conclude that the fact that the
questioning officers were armed is less significant to the issue of
whether a reasonable person in Hayes’s circumstances would have
felt free to leave than he would have us conclude. (See Oregon v.
Mathiason (1977) 429 U.S. 492, 495 [police officers not required
to administer Miranda warnings to everyone questioned].)

25
26
27

Hayes also argues that the officers prevented him from
leaving by blocking his parents’ driveway. Again, the facts do not
present themselves as strongly in Hayes’s favor as he would lead
us to believe. Lux testified at the suppression hearing – conducted
nine years after the event – that he did not recall whether he

28
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12

1
2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16

blocked the driveway of Hayes’s house with the unmarked
vehicle, preventing Hayes’s father from leaving. Even assuming
arguendo that Hayes’s father was blocked from leaving in his car,
Hayes was inside the house at this time. There was evidence that
Hayes may have had a view of the front of the house through a
window near where he sat, although Lux testified that he did not
recall seeing Hayes through the window. [FN15] The evidence
allows a reasonable inference that Hayes knew that the police had
blocked his father from leaving. However, as this would require
us to draw an inference based on an assumption, we conclude that
the inference he would have us draw is somewhat attenuated.
FN15. Lux initially thought that Hayes might have been in
a car parked in the driveway. This testimony tends to
counter any inference that Hayes was visible from the front
window and, further, that Hayes himself could see what
was occurring in front of the house.
Hayes argues that when he made his statement, the officers
were standing while he was seated. The record is conflicting on
this point. Lux testified at the suppression hearing that after he
introduced himself and Calcagno to Hayes, both officers sat down.
Calcagno testified that he was standing and that he did not recall if
Lux was seated or standing. [FN16] The inference that Lux
loomed over Hayes while questioning the suspect is not well
supported by the record. [FN17] To the extent that we are called
on to make any factual inferences, we must draw those favorable
to the trial court's ruling. (See People v. Stansbury, supra, 9
Cal.4th at p. 831.)
FN16. At the December 2000 preliminary hearing,
Calcagno testified that both officers were standing.

17
18
19
20

FN17. Other facts support a finding that the interview was
not coercive. Calcagno testified that Lux asked if he could
speak with Hayes, and that Hayes said that he could.
Hayes’s parents were present when he made the challenged
prearrest statement. Lux’s entire interview – including the
time after the parents left the house – took little more than
five minutes.

21
22
23
24

Hayes cites the fact that when Lux left the house to talk
with Calcagno, he left Hayes in the company of another police
officer. He ignores the fact that he had already made his statement
to Lux by this point. Common sense tells us that events occurring
after a statement was given have little relevance to determining
whether a reasonable person would have felt free to leave at the
time that the statement was given. (See Evid.Code, §§ 210, 350.)

25
26
27

Hayes argues that he was not free to leave because the
focus of the investigation was on him and that Lux’s questions
were pointed. The police questions focused on when Hayes had
last seen his recently murdered girlfriend. An inquiry into
Zepeda’s recent whereabouts is clearly appropriate in a murder

28
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13

1

investigation, regardless of whether Hayes played any part in her
death.

2
3
4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18

In addition, the evidence was conflicting about whether
Lux questioned Hayes in more than an introductory manner before
the prearrest statement was made. Lux testified that after he told
Hayes that he wanted to ask some questions about Zepeda’s death,
Hayes began talking and that he let Hayes talk. Calcagno recalled
that Hayes answered a series of questions posed by Lux. While
Hayes asserts that the trial court made a formal finding that an
interrogation took place, the record suggests to us that the trial
court did not do so. This leads us to discount Hayes’s claim that
probing police questions suggested to him that he was already the
focus of the murder investigation before he made his prearrest
statement.
Hayes reasons that the totality of the circumstances would
lead a reasonable person to believe that he was not free to leave.
This argument is contradicted by his own conduct. After he gave
his statement to Lux, Hayes did leave the house, at which point he
was arrested on the basis of evidence that undermined his
prearrest, exculpatory statement. Many of the facts that Hayes
argues support a finding of custody are exaggerated, lack logical
support or are based on constructions of the record that contradict
those tending to support the trial court's finding of a lack of
custody. Comparing the evidence that was offered at the
suppression hearing against the applicable legal standard, we
conclude that Hayes was not in custody at the time that he made
his statement.
Hayes had no Miranda rights at this stage, because he was
merely a suspect and was not yet in custody. (See Miranda, supra,
384 U.S. at p. 444; People v. Mickey (1991) 54 Cal.3d 612, 648;
see also Oregon v. Mathiason, supra, 429 U.S. at p. 495.) As there
was no custodial interrogation, the trial court properly denied the
motion to suppress evidence of his prearrest statement.

19
Resp. Ex. 11 at 13-15.
20
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that
21
certain warnings must be given before a suspect’s statement made during custodial
22
interrogation can be admitted in evidence. Miranda protections are triggered only
23
where there has been such a restriction on a person’s freedom as to render him ‘in
24
custody.’” Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting Mathiason,
25
429 U.S. at 495). “[I]n custody” means “‘formal arrest or restraint on freedom of
26
movement’ of the degree associated with a formal arrest.” California v. Beheler,
27
463 U.S. 1121, 1125 (1983) (quoting Mathiason, 429 U.S. at 495). It requires that
28
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14

1

“a reasonable person have felt he or she was not at liberty to terminate the

2

interrogation and leave,” as judged by the totality of the circumstances. Thompson

3

v. Keohane, 516 U.S. 99, 112 (1995). This determination is based on an objective

4

inquiry to determine: (1) the circumstances surrounding the interrogation, and (2)

5

whether a reasonable person would have felt at liberty to end the interrogation and

6

leave, given those circumstances. Id. at 112. The “totality of the circumstances”

7

determines whether a person was “in custody.” Relevant factors include:

8

“(1) the language used by the officer to summon the individual,
(2) the extent to which the defendant is confronted with evidence
of guilt, (3) the physical surroundings of the interrogation, (4) the
duration of the detention and (5) the degree of pressure applied to
detain the individual.

9

11
For the Northern District of California

United States District Court

10

United States v. Redlightning, 624 F.3d 1090, 1102-03 (9th Cir. 2010) (footnote

12

omitted).

13

An interrogation conducted within the suspect’s home is custodial, and

14

requires Miranda warnings, if the circumstances surrounding the interrogation

15

turned the home into a “police dominated atmosphere.” United States v. Craighead,

16

539 F.3d 1073, 1083 (9th Cir. 2008). The following factors are relevant to this

17

“fact-intensive” determination: “(1) the number of law enforcement personnel and

18

whether they are well-armed; (2) whether the suspect was at any point restrained,

19

either by physical force or by threats; (3) whether the suspect was isolated from

20

others; and (4) whether the suspect was informed that he was free to leave or

21

terminate the interview, and the context in which any such statements were made.”

22

Id. at 1084 (footnote omitted) (finding interrogation custodial where ten armed

23

officers from various agencies present, suspect escorted to back storage room and

24

door closed, and officers blocked exit). Physically controlling a suspect during a

25

home search, even if necessary to preserve evidence and ensure safety, tends to

26

make a reasonable person believe he or she is in custody. Id. at 1086.

27

Here, Petitioner argues that the trial court erred in its determination that he

28
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15

1

was not “in custody.” In support of his argument, Petitioner claims that Investigator

2

Lux asked pointed questions about Zepeda’s death, and the location of the Cadillac;

3

neither officer suggested that Petitioner could leave if he wanted to; at least one of

4

the officers was standing during the questioning; both officers were armed; the

5

police never left Petitioner alone; and the police parked in a way so as to block the

6

driveway. Pet. at 6-7.

that they were exaggerated or contradictory. These factual findings are presumed

9

correct. Thompson v. Keohane, 516 U.S. 99, 112-13 (1995) (recognizing that the

10

state court’s determination of the circumstances surrounding the interrogation is a

11
For the Northern District of California

However, the state appellate court rejected Petitioner’s arguments, finding

8

United States District Court

7

factual finding that is entitled to a presumption of correctness under 28 U.S.C.

12

§ 2254(d)). Further, the “in custody” determination requires an analysis of the

13

totality of the circumstances. Here, the evidence shows that Petitioner’s father gave

14

the officers permission to speak with Petitioner; the officers’ questions focused on

15

when Petitioner had last seen Zepeda; Investigator Lux and Detective Calcagno were

16

dressed in plain clothes and explained to Petitioner they were investigating Zepeda’s

17

death; although both officers were armed, neither of them displayed their weapons;

18

even if the police parked in a way as to block the driveway, Petitioner clearly felt he

19

was free to leave as he did walk out of the house at some point prior to his arrest;

20

Petitioner’s parents were present during the interview and asked if they should leave

21

– the police did not request their departure; the interview took less than five minutes;

22

Petitioner was never physically restrained; and, at the time Petitioner made his

23

pretrial statements, he was not isolated from others.

24

This Court is mindful that in applying § 2254(d) to custody determinations,

25

the state courts are accorded more leeway in reaching outcomes on a case-by-case

26

basis because the custody test for Miranda purposes is general. Stanley v. Schriro,

27

598 F.3d 612, 619 (9th Cir. 2010) (citing Yarborough v. Alvarado, 541 U.S. 652,

28
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16

1

664 (2004)). A review of the record and the state court’s opinion reveals that the

2

state court’s denial of Petitioner’s Miranda claim was not an unreasonable

3

application of clearly established Supreme Court law. Petitioner is not entitled to

4

habeas relief on this claim.

5

2.

6

Petitioner claims that his conviction should be reduced to second degree

Sufficiency of the Evidence

7

murder because there was insufficient evidence of premeditation and deliberation to

8

sustain a first degree murder conviction.

9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20

The state appellate court rejected this claim.
When we review all the evidence offered at trial, we find
sufficient evidence from which a rational jury could find
premeditation and deliberation. First, there was evidence of
planning from Hayes’s act of moving his car to get closer to
Zepeda before the assault. The time required to start the Cadillac,
drive it in a circuitous route around various parking lot obstacles
to where Zepeda had walked in a more direct route, park it, and
get out of the car was a sufficient period of time to allow planning.
The opportunity to reflect constitutes circumstantial evidence of
premeditation and deliberation. (See People v. Wright, supra, 39
Cal.3d at p. 593; see also In re Larkin, supra, 48 Cal.3d at p. 245.)
Second, there was evidence of Hayes’s motive to kill
Zepeda. Her conduct immediately before the assault suggests that
she had broken off their relationship. She ordered him to leave
her, physically left his presence and appeared to pull away from
him when he pursued her. This inference was supported by
Hayes’s own report – made shortly after Zepeda was attacked –
that he and she had separated. This evidence would allow a
reasonable jury to infer that Hayes was angered by Zepeda’s
rejection. (See People v. Anderson, supra, 70 Cal.2d at p. 27
[prior relationship of parties may show evidence of motive].)

21
22
23
24
25

Hayes argues that heated words or a physical struggle
compel a finding that no premeditation and deliberation occurred,
but the case law he cites establishes no more than that this conduct
could create a reasonable doubt about premeditation and
deliberation. Indeed, our Supreme Court has expressly
acknowledged that such evidence would be sufficient to support a
finding of premeditation and deliberation, although it would not
necessarily compel that finding. (People v. Wickersham, supra,
32 Cal.3d at pp. 329-330.)

26
27

Third, when Hayes struck his initial blow, Zepeda was
knocked to the ground, landing on her back on a concrete
sidewalk. Then, he repeatedly stomped on her head with his foot

28
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17

1
2
3
4
5
6

with so much force that multiple bones in her face were shattered
and her head split open. The pathologist’s evidence suggested
that Hayes did not strike haphazard blows, but aimed them at her
face and head. The manner of killing may be so particular and
exacting to allow a reasonable jury to conclude that Hayes must
have intentionally killed Zepeda according to a preexisting design
to take her life, based on evidence of planning or motive. (See
People v. Anderson, supra, 70 Cal.2d at p. 27.) The manner of the
assault on Zepeda – particularly when viewed in the context of the
other evidence of premeditation and deliberation offered in this
case – supports a rational jury’s verdict of premeditated and
deliberated first degree murder.

7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17

Hayes argues that the fact that he did not use a weapon
against Zepeda is evidence that he did not plan, premeditate and
deliberate the murder. In our view, the fact that Zepeda’s injuries
were inflicted by hand and foot rather than by the use of a weapon
such as a gun may tend to support a finding that the manner of the
assault demonstrated premeditation and deliberation. It takes
longer to inflict wounds by striking the victim to the ground and
then stomping her repeatedly with a foot than it would take to
inflict a rapid hail of bullets. Injuries inflicted by hand and foot
are necessarily inflicted at close range where the perpetrator can
better assess the injuries as they are being inflicted. The manner
of injury suffered by Zepeda may thus be stronger evidence of an
opportunity to stop and reconsider these actions – and thus,
stronger evidence of an opportunity for premeditation and
deliberation – than injury by other means such as gunshots might
be.
Resp. Ex. 11 at 20-22.
A federal court reviewing collaterally a state court conviction does not

18

determine whether it is satisfied that the evidence established guilt beyond a

19

reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Nor does a

20

federal habeas court in general question a jury’s credibility determinations, which

21

are entitled to near-total deference. Jackson v. Virginia, 443 U.S. 307, 326 (1979).

22

The federal court determines only whether, “after viewing the evidence in the light

23

most favorable to the prosecution, any rational trier of fact could have found the

24

essential elements of the crime beyond a reasonable doubt.” Id. at 319. Only if no

25

rational trier of fact could have found proof of guilt beyond a reasonable doubt, may

26

the writ be granted. Id. at 324. “[T]he only question under Jackson is whether that

27

[jury] finding was so insupportable as to fall below the threshold of bare rationality.”

28
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18

1
2

Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012).
In California, first degree murder is the premeditated and deliberate unlawful

premeditated killing under California law is a “killing [that] was the result of

5

preexisting reflection and weighing of considerations rather than mere unconsidered

6

or rash impulse.” People v. Prince, 40 Cal.4th 1179, 1253 (2007) (citations

7

omitted). The process of premeditation and deliberation “does not require any

8

extended period of time.” People v. Koontz, 27 Cal.4th 1041, 1080 (2002) (citations

9

omitted). “The true test is not the duration of time as much as it is the extent of the

10

reflection. Thoughts may follow each other with great rapidity and cold, calculated

11
For the Northern District of California

killing of another with malice aforethought. See Cal. Pen. Code §§ 187, 189. A

4

United States District Court

3

judgment may be arrived at quickly.” Id. Planning activity, motive and the manner

12

of the killing are significant, though not the exclusive, factors to consider when

13

determining whether the killing was a result of preexisting reflection. Prince, 40

14

Cal.4th at 1253 (citations omitted).

15

Under these legal principles, Petitioner’s claim cannot succeed. The record

16

supports the conclusion that a rational trier of fact could have found the elements of

17

premeditation and deliberation true beyond a reasonable doubt. As the state

18

appellate court determined, that Petitioner drove a circuitous route just after he

19

argued with Zepeda; that Petitioner and Zepeda argued, presumably over breaking

20

off their relationship; and the severity and forcefulness of the way Petitioner killed

21

Zepeda reasonably support the jury’s determination that there was premeditation and

22

deliberation. On such a record, Petitioner’s claim that there was insufficient

23

evidence is DENIED.

24

3.

25

Petitioner claims that his federal constitutional right to a jury trial was

Sanity Trial

26

violated when the trial court failed to hold a trial on the issue of his sanity when

27

Petitioner had not personally withdrawn his plea of “not guilty by reason of

28
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19

1
2
3
4
5
6
7
8

insanity.” (“NGI.”)
The state appellate court summarized the pretrial events as follows.
In January 2001, Hayes was charged by information with
the murder of Zepeda. At his arraignment the following month, an
attorney was appointed for him and a plea of not guilty was
entered. [FN22] In October 2004, his appointed counsel
withdrew that plea and entered a new, dual plea – not guilty and
NGI. On the record and in writing, Hayes agreed with these pleas.
In September 2005, Lisa Alexholland was retained as Hayes’s
counsel. A month later, she stated that “we would like to
withdraw” the NGI plea and entered only a not guilty plea. The
trial court agreed. Although Hayes was present and spoke about
other matters, he was not asked about nor did he give his verbal
consent to the change of plea.

9
FN22. We have no transcript of this proceeding, so we
cannot determine whether or not Hayes personally
consented to this plea.

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17

In February 2007, an amended information was filed in this
matter, making it clear that this was a first degree murder case and
that the prior conviction allegations could result in sentencing
pursuant to the Three Strikes law. In April 2007, the trial court
rejected Hayes’s demurrer to the amended information. Hayes
was rearraigned and defense counsel entered a not guilty plea to
the charges alleged in the amended information. Again, Hayes
was present, but was not asked about this plea. No mention was
made of an NGI plea. A year later, in April 2008, the public
defender filed a declaration stating that he had recently received
the mental health records he needed to determine whether to enter
an NGI plea on Hayes’s behalf. The trial record contains no
further reference to any NGI plea or insanity trial.

18
Resp. Ex. 11 at 27-28.
19
The state appellate court rejected Petitioner’s claims. First, it recognized that,
20
under California law, every plea must be personally entered or withdrawn by the
21
defendant in open court. Resp. Ex. 11 at 28. Here, the record demonstrated that
22
Petitioner personally entered an NGI plea in October 2004. However, there was no
23
indication that Petitioner ever personally withdrew that plea. The state appellate
24
court concluded that the 2007 amended information and re-arraignment did not cure
25
the error because Petitioner did not personally enter any plea at that time. Id. at 2926
30. Nonetheless, the state appellate court concluded that even though the failure to
27
hold a sanity trial or acquire Petitioner’s plea resulted in an error, the error was
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20

1

purely a statutory error – not constitutional, and Petitioner was not prejudiced by the

2

error. Id. at 30-32. To that end, the state appellate court reasoned that, because

3

Petitioner did not establish that he would have continued to pursue an NGI defense

4

over the advice of counsel, his federal constitutional claim necessarily failed as well.

5

Id. at 32, n.26.

6

The Sixth Amendment right to a jury trial applies to state criminal trials

7

through the Due Process Clause of the Fourteenth Amendment. See Duncan v.

8

Louisiana, 391 U.S. 145, 149 (1968). This right only attaches to criminal trials. See

9

Chatman v. Marquez, 754 F.2d 1531, 1534 (9th Cir. 1985). As an initial matter, the
United States Supreme Court has not addressed whether a trial court deprives a

11
For the Northern District of California

United States District Court

10

criminal defendant of his right to a jury trial if he does not receive a sanity trial after

12

pleading NGI. Because there is no United States Supreme Court case addressing

13

this issue, the state court’s decision on Petitioner’s claims does not violate AEDPA

14

and may not be set aside. “If Supreme Court cases ‘give no clear answer to the

15

question presented,’ the state court’s decision cannot be an unreasonable application

16

of clearly established federal law.” Ponce v. Felker, 606 F.3d 596, 604 (9th Cir.

17

2010) (quoting Wright v. Van Patten, 552 U.S. 120, 126 (2008)); Stevenson v.

18

Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004) (“If there is no Supreme Court

19

precedent that controls a legal issue raised by a petitioner in state court, the state

20

court’s decision cannot be contrary to, or an unreasonable application of, clearly-

21

established federal law.”). Thus, Petitioner is not entitled to relief on this claim.

22

Moreover, “federal law does not mandate jury consideration of insanity every

23

time an NGI plea is entered.” Pennywell v. Rushen, 705 F.3d 355, 357 n.1 (9th Cir.

24

1983). Rather, a criminal defendant has the “right to have a jury determine, beyond

25

a reasonable doubt, his guilt of every element of the crime with which he is

26

charged.” United States v. Gaudin, 515 U.S. 506, 522-23 (1995). In California, a

27

finding of insanity “is dispositive only on the question of whether the accused is to

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be held criminally responsible for committing the charged offense[,] it is not

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determinative of whether the elements of the offense, and thus the criminal conduct

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itself, have been established.” People v. Hernandez, 22 Cal. 4th 512, 531 (2000)

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(Brown, J. concur). Because a finding of insanity is not an element of the crime

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charged, the state court’s conclusion that Petitioner’s right to a jury trial was not

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violated, was not contrary to, or an unreasonable application of, clearly established

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Supreme Court law. Cf. Leach v. Kolb, 911 F.3d 1249, 1255-58 (7th Cir. 1990)

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(finding that there was no federal constitutional violation when the trial court

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directed a verdict on an insanity plea because the defendant failed to present
sufficient evidence to create a viable jury question on the issue).

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For the Northern District of California

United States District Court

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4.

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Plaintiff claims that the trial court erred in denying his motion to dismiss

Motion to Dismiss / Ineffective Assistance of Counsel

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based on ineffective assistance of counsel on the ground that counsel unnecessarily

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turned over a 12-page copy of a report written by a private investigative firm, hired

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by counsel, to the prosecutor. Pet. at 17-21. The report contained interviews with

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Anderson, Turner, and Roberson, and accordingly to Petitioner, lightened the

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prosecution’s burden of proof.

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The state appellate court summarized the events as follows:
In February 2006, [counsel] received a report from a
defense investigator. The report contained summaries of
interviews with Anderson, Turner and Roberson. [FN18] In April
2007, she faxed a copy of this report to the prosecutor. The report
was part of the case file when the prosecutor who ultimately tried
the case was assigned to Hayes’s case in May 2008.

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FN18. Key aspects of these interview summaries are set out
in part IV.B.3., post.
In July 2008, before trial began, Hayes’s public defender
moved to dismiss the entire action, based on a claim that [counsel]
had provided ineffective assistance of counsel. He asserted that
her investigator interviewed two key prosecution witnesses –
Turner and Anderson – after talking extensively with Hayes. The
public defender argued that the report contained work product and
statements from prosecution witnesses that should not have been
disclosed to the prosecution. He reasoned that [counsel] provided

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the entire report to prosecutors, who read it and used it to prepare
those prosecution witnesses for trial.

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In the motion, the public defender argued that [counsel’s]
error could assist the prosecution in convicting Hayes. He argued
that the discovery violation constituted a violation of his
constitutional rights to a fair trial, to cross-examine and confront
witnesses, to due process, to his present evidence in his own
defense, and to the effective assistance of counsel. As a remedy,
the public defender sought dismissal of the charges against Hayes.

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For the Northern District of California

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The trial court reviewed the report and ultimately denied
the motion to dismiss. It found that none of the information in the
report fell within the attorney-client privilege; that there was no
evidence that any specific information pursued by the investigator
came from Hayes himself; that the public defender could only
speculate that anything revealed in the report would not have been
otherwise discovered by the prosecution; that Hayes was not
prejudiced by any disclosure of information that would be
inadmissible at trial; and that his rights were not violated by the
disclosure of the investigator's report. It found no basis for
dismissal of the action.

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Both Anderson and Turner testified in December 2000 at
Hayes’s preliminary hearing conducted 18 months after Zepeda’s
death. At the time of the July 2008 hearing on the motion to
dismiss, the prosecution intended to call both as prosecution
witnesses. During the subsequent trial, both testified for the
prosecution.
Resp. Ex. 11 at 22-23.
The state appellate court rejected this claim.

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2. Context of Disclosure

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We begin by placing the disclosure in context. The motion
to dismiss is premised on the assumption that the prosecution had
no other means to acquire the information disclosed in the report.
This assumption does not hold up to close examination. [FN20]
For example, the public defender compared what Anderson told
police in 1999 with what the investigator’s report revealed from
her in 2006, reasoning that the report gave the prosecution
information that it would not otherwise have had. However, by
the time the investigator’s report reached the prosecution in April
2007, Anderson had testified at the preliminary hearing in
December 2000. At the time of her February 2006 interview
summarized in the defense investigator’s report, she had already
talked with the prosecutor and detectives about the case.

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FN20. At the hearing, the trial prosecutor told the court that
he had not spoken with the investigator or anyone
associated with his firm about the report. We recognize
that this does not preclude the possibility that the

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prosecution questioned Anderson, Turner or Roberson
about the report’s contents.

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Within hours of Zepeda’s death, the police understood that
Hayes had spent the night at Anderson’s home on the night of the
Zepeda attack. They knew that a vehicle matching the description
of the one seen at the scene of the Zepeda attack was found near
Anderson’s home. Clearly, she was a person that police and the
prosecution would have questioned repeatedly about the events of
that night – most likely, long before the defense investigator’s
report reached them in April 2007. [FN21] Thus, any claim that
the prosecution obtained evidence from the report that it would
not have found as a result of its normal investigation is
speculative.

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FN21. This conclusion is bolstered by the record on appeal.
For example, shortly before the motion was argued, the
prosecution offered Anderson’s testimony that she
terminated her relationship with Hayes after he struck her
as evidence tending to negate mistake or lack of intent.
(Evid.Code, § 1101.) The trial court ruled that the
evidence would not be admitted.

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16
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The motion to dismiss was also premised on the
assumption that specific evidence came from Hayes himself. At
the hearing on the motion, his public defender argued as much
again and again. However, a review of the report itself does not
support this assumption. The February 2006 investigative report
noted that the investigator spoke twice with Hayes and once with
his parents, gleaning unspecified information and leads to be
explored. As the trial court noted correctly, there was no specific
source for any substantive lead noted in the report, which satisfied
the trial court – and satisfies our court – that the report did not
reveal the substance of any confidential communications.

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3. Lack of Error and Prejudice
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Much of the February 2006 investigative report repeated
evidence that had come out at the preliminary hearing, but the
report did contain four pieces of information that Hayes contends
were improperly disclosed to the prosecution. As we shall
explain, each of these disclosures was either required or
nonprejudicial.
First, Anderson told the investigator that she saw blood on
Hayes’s white socks when he came to her home on the night of
July 25, 1999. The trial court ruled that it was too speculative to
conclude the prosecution would not have discovered this evidence
other than by means of the report. We agree with this conclusion.
(See pt. IV.B.2., ante.)

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We also conclude that Hayes suffered no prejudice from
this disclosure. At trial, Anderson testified for the prosecution,
stating that Hayes wore white socks that night. The evidence that

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Anderson and her daughter saw blood on Hayes’s white socks that
night was not offered by the prosecution, but by Hayes during
Anderson’s cross-examination. The prosecution offered evidence
that Hayes’s slacks, jacket and shoes that he wore when Anderson
saw him had Zepeda’s blood on them, but did not offer any
evidence that his socks were even collected by police. In a case
with so much physical evidence linking Hayes’s seized clothing
with the attack on Zepeda, this passing reference to blood on his
socks – blood that could have come from Hayes’s injured hand as
easily as from some other source – was of minimal probative
value. Thus, we are satisfied that the disclosure of that aspect of
the report did not prejudice Hayes.

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Second, the investigator questioned Anderson about a
report from an unspecified source that Hayes and Zepeda had been
driving on July 25, 1999, that they had seen Anderson and a Black
man on the street, and that Hayes had given Anderson and her
companion a ride. In two separate interviews, she told the
investigator that this report was untrue. As Anderson did not
confirm this report, the trial court found that the fact of this
meeting between Hayes, Zepeda and Anderson was not
established. When the public defender argued that Hayes could be
impeached with Anderson’s denial if he chose to testify, the trial
court ruled that the prosecutor would not be permitted to impeach
him based on evidence gleaned from this report. As the evidence
could not be used against Hayes at the subsequent trial, he
suffered no prejudice from its disclosure.
Third, Anderson reported that Hayes suffered from a
mental condition; that he is easily set off; that he had been ordered
to attend anger management classes; that a woman particularly
had to be careful of not to raise a voice at him; that he was
normally cool, but had a “really bad temper.” Again, the trial
court ruled that this constituted inadmissible character evidence
that would not be admitted at trial. Based on that proper
evidentiary ruling, Hayes was not prejudiced by this disclosure.

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Lastly, Anderson recalled that when she and Hayes were
walking on the night of July 25, 1999, they met Charles Roberson,
who was driving by. He agreed to give them a ride. The
investigator questioned Roberson about this report. At first,
Roberson denied that he had given Hayes and Anderson a ride
around the time of the assault on Zepeda. Later, he recanted,
saying that he did. Roberson testified for the defense, telling the
jury that he was with Hayes and Anderson in Oakland sometime
between 8:30 and 9:30 p.m. on the night when Zepeda was
attacked in San Leandro. As the public defender conceded at the
hearing on the motion to dismiss, the defense was required to
disclose the investigator's report of his statement. (Former §
1054.3, subd. (a) [added by initiative measure (Prop.115), eff.
June 6, 1990]; see Roland v. Superior Court (2004) 124
Cal.App.4th 154, 169.) Thus, disclosure of this aspect of the
investigator’s report was not improper.

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As disclosure of the cited aspects of the investigator’s
report was either proper or did not result in any prejudice to
Hayes, he has not established ineffective assistance of counsel by
a preponderance of evidence. (See, e.g., People v. Ledesma,
supra, 43 Cal.3d at p. 218.) His ineffective assistance of counsel
claim is meritless.

4
Resp. Ex. 11 at 24-27.
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A claim of ineffective assistance of counsel is cognizable as a claim of denial
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of the Sixth Amendment right to counsel, which guarantees not only assistance, but
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effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984).
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In order to prevail on a Sixth Amendment ineffectiveness of counsel claim,
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petitioner must establish two things. First, he must establish that counsel’s
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For the Northern District of California

United States District Court

performance was deficient, i.e., that it fell below an “objective standard of
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reasonableness” under prevailing professional norms. Id. at 687-88. Second, he
12
must establish that he was prejudiced by counsel’s deficient performance, i.e., that
13
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
14
result of the proceeding would have been different.” Id. at 694. A reasonable
15
probability is a probability sufficient to undermine confidence in the outcome. Id.
16
A court need not determine whether counsel’s performance was deficient before
17
examining the prejudice suffered by the defendant as the result of the alleged
18
deficiencies. See id. at 697. Where the defendant is challenging his conviction, the
19
appropriate question is “‘whether there is a reasonable probability that, absent the
20
errors, the factfinder would have had a reasonable doubt respecting guilt.’” Luna v.
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Cambra, 306 F.3d 954, 961 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 695).
22
Each of the four pieces of information Petitioner complained was improperly
23
disclosed to the prosecution were either required or non-prejudicial. Specifically,
24
with regard to Anderson’s statement to the investigator she saw blood on
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Petitioner’s socks, Petitioner cannot show that he was prejudiced by this disclosure.
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First of all, as the state appellate court observed, counsel for Petitioner introduced
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this statement into evidence during his cross-examination of Anderson during trial.
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Further, in light of the other physical evidence that was introduced into trial

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identifying Zepeda’s blood on Petitioner’s slacks, jacket and shoes, even if

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Anderson’s statement that she noticed spots of blood on Petitioner’s socks was not

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admitted into evidence, it was not reasonably probable that the jury would have had

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a reasonable doubt respecting guilt. See Luna, 306 F.3d at 961.

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With regard to unsourced statements that Petitioner and Zepeda were driving

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together on the night she was killed, and picked up Anderson and an unidentified

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male, Anderson denied that this happened at two different interviews. Further,

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because the trial court ruled that this unsourced statement would not be admissible

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For the Northern District of California

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against Petitioner at trial, it was not admitted. Thus, there was no prejudice.
With regard to Anderson’s statements that, inter alia, Petitioner had been

12

ordered to attend management classes and had a “really bad temper,” again, because

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the trial court ruled that this character evidence would not be admitted at trial, it was

14

not admitted. Thus, there was no prejudice.

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Finally, with regard to Roberson’s initial denial and later recantation that he

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gave Petitioner and Anderson a ride the night of Zepeda’s murder, Petitioner

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conceded that this statement was a required disclosure under California law. Thus,

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counsel was not deficient.

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After reviewing the trial court record, including the investigative report (CT

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351-362) and the hearing on the motion (1 RT 43-67), this Court concludes that the

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state appellate court’s conclusion that there was no prejudice as a result of counsel’s

22

disclosure of the investigative report was a reasonable application of Strickland.

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CONCLUSION
After a careful review of the record and pertinent law, the Court concludes
that the Petition for a Writ of Habeas Corpus must be DENIED.
Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the
Rules Governing Section 2254 Cases. Petitioner has not made “a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has

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

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assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

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529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of

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Appealability in this Court but may seek a certificate from the Court of Appeals

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under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the

7

Rules Governing Section 2254 Cases.

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The clerk shall terminate any pending motions, enter judgment in favor of
Respondent, and close the file.

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SO ORDERED.

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For the Northern District of California

United States District Court

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DATED:

11/1/2012

EDWARD J. DAVILA
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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MILTON N. HAYES,

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Case Number: CV11-00161 EJD
Petitioner,

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CERTIFICATE OF SERVICE
v.

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ANTHONY HEDGPETH,

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Respondent.

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For the Northern District of California

United States District Court

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
11/2/2012
That on ___________________, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
inter-office delivery receptacle located in the Clerk's office.

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Milton N. Hayes G37757
Folsom State Prison
P.O. Box 290066
Represa, CA 95671
11/2/2012
Dated: ___________________
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk

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Milton N. Hayes G37757
Folsom State Prison
P.O. Box 290066
Represa, CA 95671

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For the Northern District of California

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CV11-00161 EJD