Valentino v. Sullivan et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION 22 in its entirety, and denying the petition for writ of habeas corpus. Certificate of Appealability denied. Signed by Judge Larry Alan Burns on 8/26/14. (All non-registered users served via U.S. Mail Service)(kas)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

ANTONIO VALENTINO,

12

CASE NO. 12-CV-917-LAB-MDD
Plaintiff,

ORDER ADOPTING REPORT
AND RECOMMENDATION

vs.
13
14
15

W.J. SULLIVAN,
Defendant.

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

In 2009, Valentino was convicted of special circumstances murder, attempted murder,
attempted robbery, theft, and robbery, arising out of the armed robbery of a video store and
the subsequent armed robberies and murder of a T&M Liquor store clerk.

He was

sentenced to life without parole and additional term of 31 years to be served consecutively.
On April 13, 2012, he filed the pending habeas petition, challenging his conviction on
four grounds. It is really only two of those grounds that require substantive consideration,
for reasons that will become clear below. The first is that the trial court erred by admitting
evidence of an uncharged 2005 bank robbery (of a Wells Fargo) to establish Valentino’s
identity and intent with respect to the offenses charged. The second is that the trial court
erred by admitting digitally enhanced photographs as evidence of his identity.
The petition was referred to Magistrate Judge Dembin for a Report &
Recommendation (“R&R”) pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(c) and

-1-

1

(d). Judge Dembin has issued his R&R, recommending that the petition be denied in its

2

entirety. The R&R and Valentino’s objections to it are now before the Court.

3

“The district judge must determine de novo any part of the magistrate judge's

4

disposition that has been properly objected to. The district court may accept, reject, or

5

modify the recommended disposition; receive further evidence; or return the matter to the

6

magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). See also 28 U.S.C. § 636(b).

7

If no objection is made, however, this de novo determination isn't required. United States v.

8

Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc). Because Valentino is

9

proceeding pro se, the Court construes his pleadings liberally and affords him the benefit of

10

any doubt. See Karim–Panahi v. L.A. Police Dep't, 839 F.2d 621, 623 (9th Cir.1988). That

11

said, “[p]ro se litigants must follow the same rules of procedure that govern other litigants.”

12

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987).

13

I.

Admission of Uncharged Wells Fargo Robbery

14

Under California’s Evidence Code, as under the Federal Rules of Evidence, evidence

15

of a person’s character or other acts is inadmissible “when offered to prove his or her

16

conduct on a specified occasion.” Cal. Evid. Code § 1101(a). That prohibition doesn’t apply,

17

however, to evidence of character or other acts that’s used to prove facts such as “motive,

18

opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or

19

accident.” Cal. Evid. Code § 1101(b). It just can’t be used to prove his “disposition to

20

commit” the charged offense. Id. Even if character or other acts evidence is admissible

21

under § 1101, however, it can still be excluded if “its probative value is substantially

22

outweighed by the probability that its admission will (a) necessitate undue consumption of

23

time or (b) create substantial danger of undue prejudice, of confusing the issues, or of

24

misleading the jury.” Cal. Evid. Code § 352.

25

At Valentino’s trial, the judge admitted into evidence an uncharged, August 2005

26

armed robbery of a Wells Fargo bank under § 1101. He did so on the understanding that

27

it established Valentino’s identity and intent, with this explanation:

28

I find and conclude that this uncharged act, and this one alone,
will be admissible in this trial. So that I can be very clear, the
-2-

1
2
3
4

uncharged act that formed the basis of count 9 in the bank
robbery case—this was the Wells Fargo bank robbery on August
29th—is admissible as an uncharged act. I find it admissible
against both defendants, and I find it can be used to show
identity and intent to aid and abet with respect to counts 1 and
3 in this case. It’s identity as to counts 1 and 3, and I will
appropriately limit the jury instructions upon the request of
counsel that that occur.

5

8

But, I think this act meets the Hovarter/Ewoldt degree of
similarity required to prove identity. Not common plan or
scheme. Identity. This goes beyond common plan and scheme.
This is identity. And I think it’s also admissible to show their joint
action and intent to aid and abet, which also goes to identity on
those counts. (R&R at 18–19.)

9

There were two grounds on which Valentino could have objected to this evidence coming

10

in. The first was that it’s simply not proper identity or intent evidence in the first instance; the

11

second was that even if it is, it should have still been excluded under § 352 as unduly

12

prejudicial. The R&R suggests that Valentino objected—and still objects—primarily on the

13

latter ground. (R&R at 23:2–4.)

6
7

14

As the R&R explains, the California Court of Appeal agreed that the evidence was

15

admissible as to intent and identity, but that even if it wasn’t admissible as to identity and no

16

limiting instruction to that effect was given, the error was harmless. Of course, the question

17

on federal habeas review isn’t whether that analysis was wrong, because “[i]ncorrect state

18

court evidentiary rulings cannot serve as a basis for federal habeas relief unless federal

19

constitutional rights are affected.” Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987). See

20

also Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Valentino’s claim and the objection he

21

has filed seem to recognize that, but he fails to explain how the prejudice he alleges rises

22

to the level of a constitutional defect. He just asserts that it does.

23

Even more to the point, the law is simply against him. Habeas relief is only available

24

when a state court’s ruling “resulted in a decision that was contrary to, or involved an

25

unreasonable application of, clearly established Federal law, as determined by the Supreme

26

Court of the United States.” 28 U.S.C. § 2254(d)(1). Unfortunately for Valentino, the

27

Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly

28

prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the
-3-

1

writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). That simply means, as

2

another court has put it, that “habeas relief is not available . . . for the admission of irrelevant

3

or overly prejudicial evidence.” Brown v. Grounds, 2014 WL 4076393 at *6 (N.D. Cal. Aug.

4

18, 2014). See also Segundo-Villa v. California Dep’t of Corrections, 2014 WL 4105105 at

5

*6 n.3 (C.D. Cal. Aug. 18, 2014) (“Likewise, no Supreme Court precedent has made clear

6

that admission of overly prejudicial evidence can constitute a due process violation

7

warranting habeas corpus relief.”).

8

For these reasons, the Court cannot find that the Court of Appeal’s analysis was

9

contrary to or an unreasonable application of clearly established federal law. Valentino’s

10

objection to the R&R’s treatment of his first claim is OVERRULED, and the claim is DENIED.

11

II.

Admission of Digitally Enhanced Photographs

12

An investigative technician with the San Diego District Attorney’s Office was able to

13

create and enlarge digital still images of the T&M Liquor store incidents from VHS

14

surveillance videotapes, using the computer program Adobe Photoshop. The images were

15

used against Valentino at trial, over his objections, even though the original still images, not

16

enlarged, had been introduced with no objection.

17

The objection was multi-layered. Valentino argued that the technician’s process for

18

creating the still images was novel, and that the admissibility of the images was therefore

19

subject to the test articulated in People v. Kelly, 17 Cal.3d 24 (Cal. 1976). He also argued

20

that the technician was an expert whose testimony wasn’t disclosed, and sought the

21

exclusion of the evidence as a remedy or sanction for that alleged discovery violation. He

22

argued, as he does now, that the photos were admitted with insufficient foundation. The trial

23

judge agreed that the technician’s testimony was expert testimony and should have been

24

disclosed, but he also found the technician’s method not to be novel that a Kelly hearing was

25

necessary. He declined to sanction the prosecution, either by excluding the expert testimony

26

or instructing the jury of the prosecution’s failure to disclose it, but he allowed Valentino’s

27

counsel time to retain an expert of his own to challenge the testimony. (R&R at 27–28.) On

28

habeas review, the Court of Appeal found this was acceptable. Specifically, it found that
-4-

1

Valentino was not entitled to the exclusion of the testimony as a discovery sanction, that the

2

admission of digitally enhanced photographs is a common practice obviating the need for

3

a Kelly hearing, and that a proper foundation was laid for the photographs. Valentino

4

challenges all of those conclusions now.

5

Here, again, Valentino’s habeas claim runs into the problem posed by the AEDPA-

6

mandated standard of review. The question isn’t whether the trial judge mis-applied

7

California’s own evidentiary rules, but whether his application was contrary to “clearly

8

established Federal law, as determined by the Supreme Court of the United States.”

9

U.S.C. § 2254(d)(1). Valentino seems to be aware of this, even though in his objections he

10

accuses the trial court of an abuse of discretion, but his argument couldn’t be more

11

conclusory. He simply disagrees with the decision of the trial judge and the California Court

12

of Appeal, and then claims the error is of constitutional significance. (See Obj. at 6–8.) That

13

is inadequate. Even assuming the trial court and the Court of Appeal somehow misapplied

14

California law, there is still nothing in Valentino’s arguments that rises to the level of violating

15

clearly established federal law as articulated by the Supreme Court. His objection to the

16

R&R’s treatment of his first claim is OVERRULED, and the claim is DENIED.

17

III.

28

Cumulative Effect

18

Because the Court finds no constitutional errors of any kind in Valentino’s conviction,

19

his cumulative error claim necessarily fails. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir.

20

2011) (“Because we conclude that no error of constitutional magnitude occurred, no

21

cumulative prejudice is possible.”) (citing United States v. Larson, 460 F.3d 1200, 1217 (9th

22

Cir. 2006)). The objection is OVERRULED, and the claim is DENIED.

23

IV.

Saibu’s Claims

24

Valentino says in his habeas petition “Petitioner hereby joins and adopts by reference

25

all issues and arguments raised in any petition filed in this Court by co-defendant Saibu that

26

might accrue to Petitioner’s benefit.” (Pet. at 23.) His authority for this appears to be

27

California Rule of Court 8.200(a)(5), which allows that “[i]nstead of filing a brief, or as part

28

of its brief, a party may join in or adopt by reference all or part of a brief in the same or a
-5-

1

related appeal.” As the R&R explains, however, that Rule of Court is inapplicable in a

2

federal habeas case. Valentino must himself assert all of the claims he wishes to bring.

3

Habeas Rule 2(c) requires that a petition: (1) specify all grounds of relief available to the

4

Petitioner; (2) state the facts supporting each ground; and (3) state the relief requested. See

5

Bryson v. Copenhaver, 2014 WL 3563400 at *1 (E.D. Cal. July 18, 2014). In his objection,

6

Valentino cites two cases on joinder, but those cases speak to the joinder of defendants for

7

a criminal trial itself; they say nothing about the joinder of separate habeas petitions seeking

8

collateral post-conviction relief. See United States v. Matta-Ballesteros, 71 F.3d 754, 771

9

(9th Cir. 1995); United States v. Golb, 69 F.3d 1417, 1425 (9th Cir. 1995). Valentino’s wish

10

to adopt all of Saibu’s habeas claims is DENIED, and his objection to the R&R is

11

OVERRULED.

12

V.

Conclusion

13

The Court ADOPTS the R&R in its entirety and DENIES Valentino’s petition for writ

14

of habeas corpus. It also denies him a certificate of appealability. See Miller-El v. Cockrell,

15

537 U.S. 322, 327 (2003).

16
17
18

IT IS SO ORDERED.
DATED: August 26, 2014

19
20

HONORABLE LARRY ALAN BURNS
United States District Judge

21
22
23
24
25
26
27
28
-6-