Polina v. Montgomery et al
Filing
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REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus, filed by Geronimo Polina. Signed by Magistrate Judge Robert N. Block on 04/30/2018.(All non-registered users served via U.S. Mail Service)(ajs)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Petitioner,
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Case No.: 16-cv-02133-WQH (RNB)
GERONIMO POLINA,
REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
REGARDING PETITION FOR WRIT
OF HABEAS CORPUS
v.
W.L. MONTGOMERY; KAMALA D.
HARRIS,
Respondents.
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This Report and Recommendation is submitted to the Honorable William Q. Hayes,
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United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule
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72.1(d) of the United States District Court for the Southern District of California.
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PROCEEDINGS
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On August 22, 2016, Petitioner Geronimo Polina (“Petitioner” or “Polina”), a state
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prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
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§ 2254. (ECF No. 1 (“Pet.”)).1 The Petition was directed to convictions sustained in San
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Diego Superior Court, Case No. SCS245331, for conspiracy to commit murder, attempted
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murder, and assault by means likely to cause great bodily harm.
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On January 3, 2017, Respondent W. L. Montgomery, Warden (“Respondent”), filed
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an Answer and Notice of Lodgment. (ECF Nos. 15, 16.) On February 2, 2017, Petitioner
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filed a Traverse. (ECF No. 20 (“Trav.”).)
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Thus, this matter now is ready for decision. For the reasons discussed hereafter, the
Court RECOMMENDS that the Petition be DENIED.
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BACKGROUND
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On January 27, 2011, the People of the State of California (“People”) filed a felony
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complaint against Petitioner, and five other inmates, Jose Manuel Garcia (“Garcia”),
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Eduardo Alberto Macias (“Macias”), Juan Gabriel Morones (“Morones”), Lionel Alvidrez
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Quinteros (“Quinteros”), and Francisco Daniel Valencia (“Valencia”), in Superior Court
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of California, County of San Diego, South County Division, Case No. SCS245331. (ECF
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No. 16-1 at 5-16; ECF No. 16-2 at 7.)
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The complaint charged Petitioner with the following: (1) attempted murder, in
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violation of Penal Code2 § 187(a) and Penal Code § 664 (Count 1); (2) conspiracy to
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commit murder (Penal Code § 187(a)), in violation of Penal Code § 182(a)(1) (Count 2);
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and (3) assault with a deadly weapon by a prisoner, in violation of Penal Code § 4501
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(Count 4). (ECF No. 16-1 at 5-16.) For each of these felony counts, it was alleged that
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Petitioner committed the felonies “for the benefit of, at the direction of, and in association
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with a criminal street gang with the specific intent to promote, further and assist in criminal
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Page numbers for docketed materials cited in this Report and
Recommendation refer to those imprinted by the Court’s electronic case filing (“ECF”)
system.
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All references herein to the Penal Code refer to the California Penal Code.
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conduct by gang members within the meaning of” Penal Code § 186.22(b)(1). (Id.) For
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Counts 1 and 4, it was further alleged that Petitioner “personally used a deadly and
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dangerous weapon, to wit: a knife or other sharpened instrument or object, within the
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meaning of” Penal Code § 12022(b)(1). (Id.) The complaint also alleged that pursuant to
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Penal Code §§ 667(b) through (i), 1170.12, and 668, the “Three Strikes Law,” that
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Petitioner had suffered prior strikes in 1996 and 1999. (Id. at 13.)
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Following the preliminary hearing held on March 21, 2011, the Honorable Charles
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G. Rogers held the defendants to answer to all charges, but dismissed the arming allegation
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under Penal Code § 12022(b)(1) against Petitioner. (ECF No. 16-1 at 50; ECF No. 16-2 at
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On October 6, 2011, the Motion to Sever of defendants Garcia and Morones was
granted. (Id. at 8.)
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On October 24, 2011, an Amended Information was filed against Petitioner, Garcia,
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Macias, Morones, Quinteros, and Valencia in Superior Court of California, County of San
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Diego. (ECF No. 16-1 at 37-48.) The Amended Information included the following three
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counts against Petitioner: (1) conspiracy to commit murder (Penal Code § 187(a)), in
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violation of Penal Code § 182(a)(1) (Count 1); (2) attempted murder, in violation of Penal
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Code § 187(a) and Penal Code § 664 (Count 2); and (3); assault with a deadly weapon by
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a prisoner, in violation of Penal Code § 4501 (Count 4). (Id.) For each of these felony
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counts, it was alleged that Petitioner committed the felonies “for the benefit of, at the
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direction of, and in association with a criminal street gang with the specific intent to
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promote, further and assist in criminal conduct by gang members within the meaning of “
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Penal Code § 186.22(b)(1). (Id.) For Counts 2 and 4, it was further alleged that Petitioner
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“personally used a deadly and dangerous weapon, to wit: a knife or other sharpened
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instrument or object, within the meaning of” Penal Code § 12022(b)(1).3 (Id.) The
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The Penal Code § 12022(b)(1) charges against Petitioner were stricken at the
preliminary hearing. (See ECF No. 16-4 at 7-10.) Correspondingly, the assault with a
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Amended Information also alleged that pursuant to Penal Code §§ 667(b) through (i),
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1170.12, and 668, the “Three Strikes Law,” that Petitioner had suffered prior strikes in
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1996 and 1999. (Id. at 45-46.)
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On or around January 23, 2012, the case was assigned to the Honorable Peter C.
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Deddeh for all purposes. (ECF No. 16-2 at 63.) The jury trial for Petitioner, and defendants
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Macias and Quinteros, commenced on or about December 5, 2012. (Id. at 8, 77.) Petitioner
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was represented by Frank V. Puglia. (Id.) On December 21, 2012, Petitioner and defendant
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Macias were convicted of Counts 1, 2, and 4 of the Amended Information. (Id. at 8, 105-
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10.) The jury further found that Petitioner and defendant Macias had committed the
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felonies “for the benefit of, at the direction of, and in association with a criminal street
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gang with the specific intent to promote, further and assist in criminal conduct by gang
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members within the meaning of” Penal Code § 186.22(b)(1). (Id.) Defendant Quinteros
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was convicted only of Count 4 of the Amended Information. (Id. at 8, 111-13.) The jury
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further found that Quinteros did not commit Count 4 for the benefit of, at the direction of,
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and in association with a criminal street gang within the meaning of Penal Code §
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186.22(b)(1). (Id. at 113.)
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Later, in a bifurcated proceeding, Petitioner admitted two of the three prior strike
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allegations, and the third strike allegation was dismissed. (ECF No. 16-14 at 3.) The
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Superior Court sentenced Petitioner to an aggregate prison term of 75 years to life plus 16
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years. (Id.) The sentence consisted of an indeterminate term of 50 years to life for
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Petitioner’s Count 1 conspiracy conviction, plus a consecutive indeterminate term of 25
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years to life for his Count 2 attempted murder conviction, plus a consecutive determinate
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upper term of six years for his Count 4 aggravated assault conviction, plus a consecutive
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10-year term for the Count 4 gang enhancement. (Id.) The Superior Court stayed under
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deadly weapon charge in Count 4 was changed to assault by means likely to inflict great
bodily injury by a prisoner under Penal Code § 4501(b). (See ECF No. 16-2 at 110; ECF
No. 16-1 at 127-28.)
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Penal Code § 654 the separate 10-year gang enhancements it imposed as to Counts 1 and
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2. (Id.)
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On June 18, 2014, Petitioner filed an appeal of the final judgment in the Court of
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Appeal. (ECF No. 16-12.) Petitioner raised five grounds for relief, including the following
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three claims being raised by Petitioner herein: (1) Petitioner’s conspiracy conviction
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violated his due process rights under the Fourteenth Amendment and deprived him of a
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right to a fair trial because the conspiracy instructions did not require the jury to find that
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he personally participated in the conspiracy and personally harbored the specific intent to
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kill Ortiz; (2) the trial court abused its discretion and violated Petitioner’s right to a fair
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and impartial jury under the Sixth and Fourteenth Amendments when it refused to declare
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a mistrial after Macias slashed his attorney’s face with a razor in front of the jury; and (3)
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the trial court abused its discretion and violated Petitioner’s right to a fair and impartial
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jury under the Sixth and Fourteenth Amendments when it refused to declare a mistrial after
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the jury observed Petitioner shackled two separate times following the courtroom assault
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by Macias. (Id.)
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On March 19, 2015, the Court of Appeal affirmed the judgment of the Superior
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Court, with modifications. (ECF No. 16-14.) The judgment was modified to reduce the
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10-year prison term imposed for the Count 4 gang enhancement to a five-year term under
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Penal Code § 186.22(b)(1)(B). (Id. at 56.) The judgment was also modified to stay under
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Penal Code § 654 the 25-year-to-life sentence the court imposed for Petitioner’s Count 2
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conviction of attempted murder, the six-year sentence imposed for Petitioner’s Count 4
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conviction of the substantive offense of assault with a deadly weapon by a prisoner, and
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the attendant Count 4 five-year gang enhancement. (Id. at 56-57.) The matter was
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remanded with directions that the Superior Court prepare an amended abstract of judgment
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to reflect the modifications. (Id. at 57.)
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On April 20, 2015, Petitioner filed a Petition for Review in the Supreme Court of
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California. (ECF No. 16-15.) Petitioner raised the same three grounds for relief referenced
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above as he did in the Court of Appeal. (Id.)
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On July 8, 2015, the California Supreme Court denied Petitioner’s Petition for
Review without comment or citation to authority. (ECF No. 16-16.)
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SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL
The Court has independently reviewed the state court record.
See Nasby v.
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McDaniel, 853 F.3d 1049, 1052-54 (9th Cir. 2017) (citing Jones v. Wood, 114 F.3d 1002,
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1008 (9th Cir. 1997)) (finding that “meaningful collateral review of the state court’s
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adjudication of petitioner’s claims requires an ‘independent’ assessment of the basis for
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the state court’s decision”). Based on its independent review of the record, the Court adopts
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the following factual summary from the “Factual Background” section of the unpublished
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California Court of Appeal4 opinion in People v. Polina, Case No. D064796 (Cal. Ct. App.
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Mar. 19, 2015) as a fair and accurate summary of the evidence presented at trial5:
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A.
The People’s Case
Victoriano “Cyco” Ortiz testified both as the victim of the July 5, 2010
attack in the prison yard at the Richard J. Donovan Correctional Facility
(hereafter Donavan or Donovan Prison) that is the subject of this case, and as
an expert on the Mexican Mafia. Ortiz, who had been a member of the Brole
gang in Brawley, California, became an associate6 in the Mexican Mafia. He
was incarcerated at Donovan after he was convicted in 2010 of committing an
assault in El Centro for the benefit of the Mexican Mafia.
Ortiz indicated that the Mexican Mafia exerts its control inside
California prisons and jails and over Southern California Hispanic street
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All references herein to the Court of Appeal refer to the California Court of
Appeal.
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The Court notes that Petitioner does not contend the Court of Appeal’s
“Factual Background” is inaccurate in any respect. Moreover, Petitioner’s factual
summaries in his filings before the Court of Appeal and California Supreme Court are not
inconsistent with the Court of Appeal’s summary of the evidence presented at trial. (See
ECF No. 16-12 at 14-23; ECF No. 16-15 at 14-19.)
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Ortiz testified that an associate is somebody who has been “validated” and has
“a lot of authority and power . . . for the Mexican Mafia.”
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gangs. Members of Hispanic street gangs in Southern California are called
“Southsiders.” The Mexican Mafia is in charge of the Southsiders. A
“Sureño” is a full-fledged “soldier” who is very loyal to the Mexican Mafia.
To become a Sureño one must assault somebody in prison or do something
that shows his alliance with, and respect for, the Mexican Mafia.
Ortiz testified that the Mexican Mafia communicates to inmates
through letters. These letters give inmates authority to “run” the prisons,
collect “taxes,” and “do whatever has to be done” inside the prisons. To show
their respect to the Mexican Mafia, Southsiders must pay “taxes” to the
Mexican Mafia in the amount of one-third of all of the proceeds of their illegal
activity.
Ortiz also testified that if a street gang fails to pay their respects to the
Mexican Mafia, they can get “greenlighted,” which means the members of the
gang will be beaten or stabbed when they arrive in prison depending on how
“hard” the greenlight is. According to Ortiz, members of the Mexican Mafia
commit “[a]ssaults, stabbings, shootings, kidnappings, torture, anything that
they have to” in order to “get the point across that the Mexican Mafia is and
will be respected.” The members commit crimes to collect their money, often
by extortion. In the prison, a module contains about 20 cells, and each module
is run by a “key holder” who is in charge of collecting the taxes for the
Mexican Mafia.
Ortiz testified that when he arrived at Donovan, he believed he had
permission to run Donovan based on verbal and written authority that
Mexican Mafia member Richard Buchanan gave him. Ortiz established a
“mesa” (his team or executive committee) with three other Donovan inmates:
[Petitioner] (“Blue”), Isaac (“Lazy”) Ballesteros, and Manuel (“Stomper”)
Gonzalez. Before July 2, 2010, Macias (one of [Petitioner]’s codefendants at
trial), a Sureño whom Ortiz knew as “Funny Boy,” was also loyal to Ortiz.
Ortiz testified that Quinteros ([Petitioner]’s other codefendant at trial), a
Southsider whom Ortiz knew as “Chuco,” wanted to become loyal to Ortiz’s
mesa and told Ortiz he would do whatever Ortiz asked.
According to Ortiz, a power struggle arose when another inmate,
“Casper from Fallbrook,”7 failed to recognize Ortiz’s authority. In an attempt
to “come together in agreement,” Ortiz tried sending written “kites”8 to Casper
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Pablo “Casper” Franco.
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Ortiz testified that “kites” (or “willas”) are “small handwritten notes that
[inmates] usually fold and roll up real small the size of a capsule. [U]sually an inmate can
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indicating that Buchanan had given him authority to run the prison. Ortiz
directed Ballesteros to write a kite telling Casper that he and Ortiz needed to
“settle up,” but Casper refused to do so.
On July 2, 2010, through a vent, Ortiz overheard a Mexican Mafia
associate named Jose Manuel “Crazy Joe” Garcia, who sided with Casper, tell
Ballesteros to stab or slice Ortiz and Gonzalez with razor blades. Ortiz
testified that he also read some kites sent to Ballesteros stating that Crazy Joe
(Garcia) said Ortiz and Stomper (Gonzalez) were supposed to get “hit on the
next available yard, no exceptions.” These kites noted that Ortiz, [Petitioner],
Ballesteros, and Gonzalez were “in the hat,” which meant they had “mess[ed]
up” and were “done.” The word “whacked,” which means killed, was used in
one of the kites. Ortiz testified he was angry that Ballesteros, a member of
his mesa, was being ordered to stab him.
Investigators at Donovan received information that Garcia was going
to conduct some criminal activity for the Mexican Mafia at the prison.
Unbeknownst to the inmates, microphones were placed in the plumbing chase
between two cells where Garcia was located so that law enforcement officers
could glean intelligence. In one recorded conversation, which was played for
the jury, Garcia dictated a kite to his cellmate, Juan Morones, giving a direct
order for the stabbing of Ortiz.
Knowing from the kites that he might get stabbed, Ortiz went outside
to the prison yard on July 5, 2010, at approximately 12:20 p.m., and walked
laps with [Petitioner]. Ortiz testified that as he walked and talked with
[Petitioner], he observed other inmates walking towards a corner near a toilet
stall. [Petitioner] then swung his hand at Ortiz’s face, and Ortiz raised his
right hand to block the strike and protect his face. Ortiz felt something cutting
his hand. Ortiz testified that [Petitioner] was trying to stab him in the neck.
Ortiz also testified that Macias approached him and slashed his head
with a razor while Quinteros punched him and held him down.9 Another
inmate named “Cobra” Valencia also assaulted Ortiz. As correctional officers
fired shots of increasing lethality, Ortiz’s attackers continued to assault him
by punching, kicking, and stabbing him, and banging his head against a wall
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sneak it under his tongue, in his tooth, in his gums, or if he has to, in his private areas or
his toes, or anywhere, because he gets searched.” He stated that kites are “confidential
communications between inmates” that “generally talk about either Mexican Mafia or
prison politics.”
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Gonzalez was attacked at the same time as Ortiz.
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while he tried to cover up and defend himself. As a result of the razor slashes,
Ortiz suffered cuts to his head, back, and hand. Macias flushed the razor down
the toilet. A video of the incident was played for the jury.
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B.
The Defense
Macias testified that Ortiz was angry with him because a girl named
Priscilla liked him. To antagonize Ortiz, Macias took a picture of himself
kissing Priscilla and sent it to Ortiz. Macias testified he was not involved in
a conspiracy to murder Ortiz, and he denied receiving instructions to murder
him. He claimed he never received a kite about “putting a hit” on Ortiz.
Macias also testified he and Ortiz argued because Macias was upset that
Ortiz had made jokes about the fact that he had been incarcerated for beating
up a person in a wheelchair. Following this argument, Macias began carrying
a razor in his mouth when he went to the prison yard. On the day of the
incident, Macias saw Ortiz walking with Macias’s friend, [Petitioner]. Macias
testified that Ortiz took a “cheap shot” at [Petitioner] by punching him from
the side. Macias removed the razor from his mouth and began “slicing” Ortiz.
Macias also testified he had no intent to kill Ortiz, as the razor was small and
flimsy. He stated that he flushed the razor down the toilet. He also testified
that Quinteros tried to break up the fight.
Several other inmates testified in Macias’s defense. Ortiz’s cellmate,
Angel Cuadra, testified that Ortiz said he was going to attack [Petitioner].
Martin Madrid testified that Ortiz told him Macias had taken his girlfriend,
Priscilla, from him. Another of Ortiz’s cellmates, Anthony Barrera, testified
that Ortiz carried razor blades and was angry with Macias because of a
woman. “Stomper” Gonzalez testified he witnessed the fight in the yard
between Ortiz and [Petitioner]. He stated that Ortiz started the fight by hitting
[Petitioner]. Gonzalez stated he also became involved in a mutual fight.
Gonzalez testified he did not believe a hit was put on him.
(ECF No. 16-14 at 6-10.)
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PETITIONER’S CLAIMS HEREIN
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1.
Petitioner’s right to due process was violated when the trial court failed to
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properly instruct the jury on the required elements of the conspiracy charge, and gave
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unclear and misleading instructions on aiding and abetting. (Pet. at 6-9.) As part of his
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due process claim, Petitioner further contends there was insufficient evidence to find him
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guilty of conspiracy. (Id. at 7.)
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2.
Petitioner’s Sixth and Fourteenth Amendment rights were violated when the
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trial judge refused to call a mistrial after the jury witnessed Petitioner’s co-defendant
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“slash” his own attorney. (Pet. at 10-12.)
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3.
Petitioner’s Sixth and Fourteenth Amendment rights were violated when the
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trial judge refused to call a mistrial after the jury saw Petitioner shackled during trial. (Pet.
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at 13-14.) Petitioner’s rights were also violated when the trial judge abdicated decision-
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making responsibility to security personnel regarding Petitioner’s shackling, failed to
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guarantee his right to a fair trial by not holding a hearing to ensure Petitioner would not
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suffer prejudice as a result of the shackling, and failed to consider an alternative remedy.
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(Id.)10
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STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”):
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim—(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
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Under the AEDPA, the “clearly established Federal law” that controls federal habeas
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review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court
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decisions “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S.
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Petitioner asserts part of his Ground 3 shackling claim in Ground 2, but the
Court will address his entire claim related to shackling in Ground 3. (See Pet. at 10-12.)
In addition, as part of Ground 3, Petitioner appears to assert a cumulative error claim, which
the Court will address separately below. (See id. at 13-14.)
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362, 412 (2000); see also Carey v. Musladin, 549 U.S. 70, 74 (2006).
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Although a particular state court decision may be both “contrary to” and “an
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unreasonable application of” controlling Supreme Court law, the two phrases have distinct
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meanings. See Williams, 529 U.S. at 391, 404-05, 413. A state court decision is “contrary
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to” clearly established federal law if the decision either applies a rule that contradicts the
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governing Supreme Court law, or reaches a result that differs from the result the Supreme
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Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8
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(2002) (per curiam); Williams, 529 U.S. at 405-06.
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adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal
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habeas court is “unconstrained by § 2254(d)(1).” See Williams, 529 U.S. at 406. However,
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the state court need not cite or even be aware of the controlling Supreme Court cases, “so
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long as neither the reasoning nor the result of the state-court decision contradicts them.”
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See Early, 537 U.S. at 8.
When a state court decision
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State court decisions that are not “contrary to” Supreme Court law may be set aside
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on federal habeas review only “if they are not merely erroneous, but ‘an unreasonable
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application’ of clearly established federal law, or based on ‘an unreasonable determination
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of the facts.’” See Early, 537 U.S. at 11 (citing 28 U.S.C. § 2254(d)) (emphasis added). A
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state-court decision that correctly identified the governing legal rule may be rejected if it
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unreasonably applied the rule to the facts of a particular case. See Williams, 529 U.S. at
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406-10, 413 (e.g., the rejected decision may state the Strickland standard correctly but
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apply it unreasonably); Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002) (per curiam).
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However, to obtain federal habeas relief for such an “unreasonable application,” a
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petitioner must show that the state court’s application of Supreme Court law was
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“objectively unreasonable.” Visciotti, 537 U.S. at 24-27; Williams, 529 U.S. at 413. An
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“unreasonable application” is different from an erroneous or incorrect one. See Williams,
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529 U.S. at 409-10; Visciotti, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 699 (2002).
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Moreover, review of state court decisions under § 2254(d)(1) “is limited to the record that
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was before the state court that adjudicated the claim on the merits.” See Cullen v.
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Pinholster, 563 U.S. 170, 181-82 (2011).
As the Supreme Court explained in Harrington v. Richter, 562 U.S. 86 (2011):
Under § 2254(d), a habeas court must determine what arguments or theories
supported or, as here [i.e., where there was no reasoned state-court decision],
could have supported, the state court’s decision; and then it must ask whether
it is possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of this Court.
Id. at 102.
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Furthermore, “[a]s a condition for obtaining habeas corpus from a federal court, a
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state prisoner must show that the state court’s ruling on the claim being presented in federal
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court was so lacking in justification that there was an error well understood and
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comprehended in existing law beyond any possibility for fairminded disagreement.” See
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id. at 103.
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Here, claims encompassing Grounds 1-3 of the Petition were raised by Petitioner on
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direct appeal and denied by the Court of Appeal in a reasoned decision. Those same claims
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encompassing Grounds 1-3 were then presented in Petitioner’s Petition for Review, which
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the California Supreme Court denied. Accordingly, for purposes of applying the AEDPA
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standard of review to Grounds 1-3 herein, the Court of Appeal decision on direct appeal
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constitutes the relevant state court adjudication on the merits. See Berghuis v. Thompkins,
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560 U.S. 370, 380 (2010) (where state supreme court denied discretionary review of
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decision on direct appeal, the decision on direct appeal is the relevant state-court decision
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for purposes of the AEDPA standard of review).
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DISCUSSION
A.
Habeas Relief is Not Warranted With Respect to Ground 1 of the
Petition.
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In Ground 1 of the Petition, Petitioner claims the trial court violated the due process
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clause of the Fourteenth Amendment by failing to properly instruct the jury on the required
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elements of the conspiracy charges. (Pet. at 2, 6.) Petitioner contends that the trial court
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failed to properly instruct the jury by not giving clearer instructions for CALCRIM Nos.
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415 and 563.
3
interchangeably with “the defendant” in the conspiracy instructions confused the jury, and
4
that the consistent use of the phrase “the defendant” throughout the jury instructions would
5
have prevented confusion because it would have specifically referred to Petitioner. (Id.)
(Id. at 6.)
Petitioner further contends the use of “a defendant”
6
Petitioner also claims that the trial court misled the jury by giving aiding and abetting
7
instructions, CALCRIM Nos. 400 and 401, which did not limit criminal liability as an aider
8
and abettor to the offenses of attempted murder and aggravated assault. (Id.) Petitioner
9
contends that the aiding and abetting instructions given to the jury were confusing and
10
misleading in light of the prosecution’s theory of the case, which conflated the burden of
11
proof for conspiracy with the burden of proof for aiding and abetting. (Id. at 6-9.)
12
Lastly, Petitioner claims that there was insufficient evidence to prove beyond a
13
reasonable doubt that he participated in any conspiracy, or even had knowledge of one.
14
(Id. at 7.)
15
involvement in a conspiracy to commit murder, which is why the prosecution confused the
16
jury with the aiding and abetting instruction. (Id.)
Petitioner contends that the prosecution had no evidence to prove his
17
18
1.
Applicable Federal Law
19
“What the factfinder must determine to return a verdict of guilty is prescribed by the
20
Due Process Clause.” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). “[T]he Due
21
Process Clause protects the accused against conviction except upon proof beyond a
22
reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
23
In re Winship, 397 U.S. 358, 364 (1970). A “jury instruction violates due process if it fails
24
to give effect to that requirement.” Middleton v. McNeil, 541 U.S. 433, 437 (2004) (citing
25
Sandstrom v. Montana, 442 U.S. 510, 520-21 (1079)).
26
On federal habeas review of instructional error by a state court, federal courts are
27
bound by a state court’s interpretation of state law. Bradshaw v. Richey, 546 U.S. 74, 76
28
(2005); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (the fact that a jury
13
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1
instruction “was allegedly incorrect under state law is not a basis for habeas relief”).
2
Federal habeas relief based on instructional error is warranted only if the petitioner shows
3
“both that the instruction was ambiguous and that there was ‘“a reasonable likelihood”’
4
that the jury applied the instruction in a way that relieved the State of its burden of proving
5
every element of the crime beyond a reasonable doubt.” Waddington v. Sarausad, 555
6
U.S. 179, 190-91 (2009) (citing Estelle, 502 U.S. at 73, n.4 (quoting Boyde v. California,
7
494 U.S. 370, 379-80 (1990))).
8
In making this determination, the jury instruction “‘may not be judged in artificial
9
isolation,’ but must be considered in the context of the instructions as a whole and the trial
10
record.” Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
11
“[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level
12
of a due process violation.” Middleton, 541 U.S. at 437. “Because it is not enough that
13
there is some ‘slight possibility’ that the jury misapplied the instruction, Weeks v. Angelone,
14
528 U.S. 225, 236 (2000), the pertinent question ‘is “whether the ailing instruction by itself
15
so infected the entire trial that the resulting conviction violates due process,”’ Estelle, 502
16
U.S. at 72 (quoting Cupp, 414 U.S. at 147).” Waddington, 555 U.S. at 191.
17
18
2.
19
Conspiracy Instructions
a.
Background
20
Petitioner’s jury received the following relevant conspiracy instructions:
21
415. CONSPIRACY
22
I have explained that a defendant may be guilty of a crime if he either commits
the crime or aids and abets the crime. He may also be guilty if he is a member
of a conspiracy.
23
24
25
26
27
To prove that a defendant was a member of a conspiracy in this case,
the People must prove that:
1.
A defendant intended to agree and did agree with one or more of
inmates loyal to the Mexican mafia to commit the crime of
murder;
28
14
16-cv-02133-WQH (RNB)
1
2.
At the time of the agreement, a defendant and one or more of the
other alleged members of the conspiracy intended that one or
more of them would commit murder;
3.
One of the defendants or one of the inmates loyal to the Mexican
mafia, committed at least one of the following alleged overt acts
to accomplish the crime of murder:
2
3
4
5
•
On or about July 2, 2010, Jose Manuel Garcia, told his cell
mate, Juan Morones, to write an inmate message (“Kite”)
to have inmates Victoriano Ortiz [Cyco] and Manual
Gonzalez [Stomper] murdered immediately (“whacked”).
Specifically, Garcia told Morones to write the following:
Direct orders from the Carnal, Cyco from Brole and
Stomper from Market are to be whacked on the next yard
ASAP. No exceptions.
11
•
Eduardo Macias took a razor to the yard.
12
•
On or about July 5, 2010, inmates Ortiz and Gonzalez
were in the prison yard for their group yard activities.
While in the yard, Ortiz was assaulted by inmates Polina,
Macias, Valencia And Quinteros;
•
On or about July 5, 2010, Polina used an inmate
manufactured weapon in his possession to try to cut the
neck of inmate Ortiz, who sustained a cut to his hand when
he shielded his neck from being cut by Polina in the attack;
•
On or about July 5, 2010, Polina, Macias, Valencia, And
Quinteros inflicted other cuts to the body of inmate Ortiz
while Valencia and Quinteros punched and tried to hold
the arms of Ortiz during the attack.
6
7
8
9
10
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4.
An overt act was committed in California.
To decide whether a defendant committed one of these overt acts,
consider all of the evidence presented about the acts.
To decide whether a defendant and one or more of the other
alleged members of the conspiracy intended to commit the crime
of murder, please refer to the separate instructions that I will give
you on that crime.
The People must prove that the members of the alleged
conspiracy had an agreement and intent to commit the crime of
murder. The People do not have to prove that any of the members
of the alleged conspiracy actually met or came to a detailed or
15
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1
formal agreement to commit the crime of murder. An agreement
may be inferred from conduct if you conclude that members of
the alleged conspiracy acted with a common purpose to commit
the crime.
2
3
An overt act is an act by one or more of the members of the
conspiracy that is done to help accomplish the agreed upon
crime. The overt act must happen after a defendant has agreed to
commit the crime. The overt act must be more than the act of
agreeing or planning to commit the crime, but it does not have to
be a criminal act itself.
4
5
6
7
8
You must all agree that at least one alleged overt act was
committed in California by at least one alleged member of the
conspiracy, but you do not have to all agree on which specific
overt act or acts were committed or who committed the overt act
or acts.
9
10
11
You must make a separate decision as to whether each defendant
was a member of the alleged conspiracy.
12
13
The People allege that a defendant conspired to commit murder.
You may not find a defendant guilty of conspiracy unless all of
you agree that the People have proved that a defendant conspired
to commit murder.
14
15
16
A member of a conspiracy does not have to personally know the
identity or roles of all the other members.
17
Someone who merely accompanies or associates with members
of a conspiracy but who does not intend to commit the crime is
not a member of the conspiracy.
18
19
20
Evidence that a person did an act or made a statement that helped
accomplish the goal of the conspiracy is not enough, by itself, to
prove that the person was a member of the conspiracy.
21
22
23
24
25
563. CONSPIRACY TO COMMIT MURDER
The defendants are charged in Count One with conspiracy to commit murder.
To prove that a defendant is guilty of this crime, the People must prove that:
1.
A defendant intended to agree and did agree with one or more
inmate loyal to the Mexican mafia to commit the crime of
murder;
2.
At the time of the agreement, a defendant and one or more of the
other alleged members of the conspiracy intended that one or
26
27
28
16
16-cv-02133-WQH (RNB)
1
more of them would commit murder;
3
One of the defendants or one of the inmates loyal to the Mexican
mafia, committed at least one of the following alleged overt acts
to accomplish the crime of murder:
4
•
On or about July 2, 2010, Jose Manuel Garcia, told his cell
mate, Juan Morones, to write an inmate message (“Kite”)
to have inmates Victoriano Ortiz [Cyco] and Manual
Gonzalez [Stomper] murdered immediately (“whacked”).
Specifically, Garcia told Morones to write the following:
Direct orders from the Carnal, Cyco from Brole and
Stomper from Market are to be whacked on the next yard
ASAP. No exceptions.
•
On or about July 5, 2010, inmates Ortiz and Gonzalez
were in the prison yard for their group yard activities.
While in the yard, Ortiz was assaulted by inmates Polina,
Macias, Valencia And Quinteros;
•
On or about July 5, 2010, Polina used an inmate
manufactured weapon in his possession to try to cut the
neck of inmate Ortiz, who sustained a cut to his hand when
he shielded his neck from being cut by Polina in the attack;
•
On or about July 5, 2010, Polina, Macias, Valencia, And
Quinteros inflicted other cuts to the body of inmate Ortiz
while Valencia and Quinteros punched and tried to hold
the arms of Ortiz during the attack.
2
3.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4.
An overt act was committed in California.
To decide whether a defendant committed these overt acts,
consider all of the evidence presented about the overt acts.
To decide whether a defendant and one or more of the other
alleged members of the conspiracy intended to commit murder, please
refer to Instructions which define the crime of murder. (Please see
Definition of Homicide below.)
The People must prove that the members of the alleged
conspiracy had an agreement and intent to commit murder. The People
do not have to prove that any of the members of the alleged conspiracy
actually met or came to a detailed or formal agreement to commit that
crime. An agreement may be inferred from conduct if you conclude that
members of the alleged conspiracy acted with a common purpose to
commit the crime.
17
16-cv-02133-WQH (RNB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
An overt act is an act by one or more of the members of the
conspiracy that is done to help accomplish the agreed upon crime. The
overt act must happen after the defendant has agreed to commit the
crime. The overt act must be more than the act of agreeing or planning
to commit the crime, but it does not have to be a criminal act itself.
You must all agree that at least one alleged overt act was
committed in California by at least one alleged member of the
conspiracy, but you do not have to all agree on which specific overt act
or acts were committed or who committed the overt act or acts.
You must make a separate decision as to whether each defendant
was a member of the alleged conspiracy.
A member of a conspiracy does not have to personally know the
identity or roles of all the other members.
Someone who merely accompanies or associates with members
of a conspiracy but who does not intend to commit the crime is not a
member of the conspiracy.
Evidence that a person did an act or made a statement that helped
accomplish the goal of the conspiracy is not enough, by itself, to prove
that the person was a member of the conspiracy.
15
(ECF No. 16-1 at 114-16, 122-24; ECF No. 16-14 at 12-15 (underlining emphasis added).)
16
Before the Court of Appeal, Petitioner contended that his conviction on Count 1 of
17
18
19
20
21
22
23
24
25
26
27
28
conspiracy to commit murder must be reversed because:
“… the conspiracy instructions did not require the jury to find that he
personally participated in the conspiracy and personally harbored the specific
intent to kill Ortiz.” In support of this claim of instructional error, [Petitioner]
assert[ed] “the conspiracy instructions only required the jury to find that ‘[a]
defendant’ intended to agree and did agree with one or more inmates to
[murder Ortiz].” (Italics added.) He also assert[ed] that the term “[a]
defendant” as used in the conspiracy instructions “mean[t] any one of the three
defendants on trial [([Petitioner], Macias, or Quinteros)], must have entered
into such an agreement with other inmates loyal to the Mexican Mafia.”
(Italics added.)
Based on his foregoing interpretation of the term “[a] defendant” as used in
the conspiracy instructions given to the jury, [Petitioner] further assert[ed] that
“the instructions given permitted the jury to convict [him] of conspiracy even
if the jury concluded only Macias was an actual participant in the conspiracy
and harbored the specific intent to kill.” Thus, he contend[ed], “his conviction
18
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
for conspiracy must be reversed for instructional error because it is reasonably
probable, based on the evidence presented at trial and the instructions given,
that the jury found him guilty of conspiracy without finding he specifically
intended to agree to murder Ortiz and also specifically intended to murder
him.”
(ECF No. 16-14 at 21-22 (emphasis in original).)
Although the Court of Appeal acknowledged that the standard conspiracy
instructions set forth in CALCRIM Nos. 563 and 415 use the terms “The/the defendant”
rather than “A/a defendant” in explaining the specific intent elements, the Court of Appeal
rejected Petitioner’s claim that the conspiracy instructions given at trial incorrectly stated
the law regarding the elements of conspiracy to commit murder.
(Id. at 23-24.)
Specifically, the Court of Appeal rejected Petitioner’s assertion that “the term ‘[a]
defendant,’ as used in the portions of the conspiracy instructions pertaining to the specific
intent elements of the count 1 conspiracy offense, meant ‘any one of the three
defendants’—[Petitioner], Macias, or Quinteros—that were on trial in th[e] case, for the
simple reason that the two terms are not synonymous.” (Id.) The Court of Appeal added:
As noted, the first sentence of the modified version of CALCRIM No.
563 given to the jury, using the plural term “The defendants,” stated: “The
defendants are charged in Count One with conspiracy to commit murder.”
(Italics added.) Obviously, this sentence informed the jury that each of the
three defendants in this case was charged in count 1 with conspiracy to
commit murder.
Immediately after thus informing the jury that each of the three
defendants in this case was charged in count 1 with conspiracy to commit
murder, the instruction then used the singular term “a defendant” in explaining
to the jury the elements that the prosecution was required to prove in order for
the jury to find a given defendant guilty of count 1. Specifically, as already
noted, the instruction stated:
“To prove that a defendant is guilty of this crime, the People
must prove that: [¶] 1. A defendant intended to agree and did
agree with one or more of inmate loyal to the Mexican mafia to
commit the crime of murder; [¶] 2. At the time of the agreement,
a defendant and one or more of the other alleged members of the
conspiracy intended that one or more of them would commit
19
16-cv-02133-WQH (RNB)
1
2
murder . . . .” (Italics added.)
(Id. at 24 (emphasis in original).)
3
Thus, the Court of Appeal held that “[a]ny reasonable jury would understand that
4
the term ‘a defendant’ in the first clause—’To prove that a defendant is guilty of this crime’
5
(italics added)—meant ‘a given defendant,’ and that the subsequent use of the term ‘a
6
defendant’ in this portion of the instruction meant the same defendant, not ‘any one of the
7
three defendants.’” (Id.) The Court of Appeal accordingly rejected Petitioner’s claim that
8
the conspiracy instructions incorrectly stated the law regarding the elements of conspiracy
9
to commit murder. (Id.)
10
b.
11
Analysis
12
As a preliminary matter, the Court is bound by the Court of Appeal’s determination
13
that the conspiracy instructions given, CALCRIM Nos. 415 and 563, correctly stated
14
California law regarding the elements of conspiracy to commit murder. See Bradshaw,
15
546 U.S. at 76; Estelle, 502 U.S. at 71-72.
16
Next, the Court finds the Court of Appeal reasonably concluded that the trial court’s
17
instructions to the jury on conspiracy were not ambiguous. See Waddington, 555 U.S. at
18
191 (finding the Washington courts reasonably concluded a certain jury instruction was
19
not ambiguous where it was “impossible to assign any meaning to th[e] instruction different
20
from the meaning given to it by the Washington courts”). For the same reasons given by
21
the Court of Appeal, as set forth above, the Court finds that CALCRIM Nos. 415 and 563,
22
as given at trial, were not ambiguous, as it is impossible to assign any meaning to the
23
instructions different than the meaning given by the Court of Appeal. Because the
24
conclusion of the Court of Appeal that the jury instructions were unambiguous was not
25
objectively unreasonable, the Court’s § 2254(d)(1) inquiry should end here. See id. at 190-
26
92.
27
However, even if assuming arguendo that the instructions were ambiguous, the
28
Court finds that the Court of Appeal reasonably applied Supreme Court precedent when it
20
16-cv-02133-WQH (RNB)
1
determined that there was no “reasonable” likelihood that the jury applied the conspiracy
2
instructions in a way that relieved the prosecution of its burden of proving every element
3
of the crime beyond a reasonable doubt. See id. at 192-93; see also ECF No. 16-14 at 22.
4
(“Petitioner “has failed to demonstrate a reasonable probability that the jury convicted him
5
of count 1 [conspiracy] without finding that he (1) specifically intended to agree or conspire
6
to murder Ortiz, and (2) specifically intended to murder him.”).
7
The record reflects that during jury instructions, the trial judge began by stating: “All
8
the defendants in this case are charged with the same crimes. You must separately consider
9
the evidence as it applies to each defendant. You must decide each charge for each
10
defendant separately.” (ECF No. 16-9 at 23 (emphasis added).) The trial judge then went
11
on to instruct the jury that in order to be guilty of the crime of conspiracy, a defendant must
12
have done so with a specific intent or mental state, and that if the prosecution does not
13
prove their case beyond a reasonable doubt, the jury “must find the defendants, or any
14
individual defendant against whom the case has not been proven, not guilty.” (Id. at 30,
15
31 (emphasis added).) Later, when instructing the jury on the conspiracy charge, the trial
16
judge specifically stated, on multiple occasions, that the jury “must make a separate
17
decision as to whether each defendant was a member of the alleged conspiracy.” (Id. at
18
40, 47 (emphasis added).)
19
Thereafter, in closing arguments, the prosecutor stated:
20
During jury selection I told you you will be given a verdict form, and
the verdict form would simply ask you one question per count. Did I prove
the count beyond a reasonable doubt as to each defendant?
21
22
24
Nothing has changed. My burden of proof has not changed one bit. I
still have to convince you that the evidence we presented in this trial convinces
you beyond a reasonable doubt that each defendant is guilty of each charge.
25
...
23
26
27
28
The verdict form looks like this. You’re going to get one for each
defendant. . . . [W]e’re asking you to answer the same question for each count.
Only that question for all defendants, each defendant, is to be – the decision
as to each defendant has to be independent. Consider the totality of the
21
16-cv-02133-WQH (RNB)
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
evidence for each defendant, but each decision has to be independent, each
count is independent.
(Id. at 67-68 (emphasis added).)
The prosecutor proceeded to walk the jury through each charge and argue why “each
defendant is guilty of that particular charge.” (Id. at 70.) For the conspiracy to commit
murder charge, the prosecutor argued that all three defendants joined the conspiracy, at the
very least, “at the time of the attack, because [it was] a coordinated attack” and “as soon as
they ma[d]e a move to attack Ortiz, that shows their membership in that conspiracy . . . .”
(Id. at 83.)
Based on the foregoing, regardless of any alleged ambiguity in the use of the terms
“a defendant” and “the defendant” in the conspiracy instructions, the jury was properly
instructed that it must find guilt as to each defendant individually. The trial record also
evidences that the jury understood the conspiracy instructions, as it found two of the three
defendants, Petitioner and Macias, guilty of conspiracy, and found the third defendant,
Quinteros, not guilty of conspiracy. (Id. at 202-05.)11
Given the foregoing, the Court finds the allegedly ailing conspiracy instructions, by
themselves, did not so infect the entire trial that the resulting conviction violated due
process, and that it was not objectively unreasonable for the Court of Appeal to conclude
the jury convicted Petitioner of conspiracy only because it believed he specifically intended
to agree or conspire to murder Ortiz, and that he specifically intended to murder him.
Accordingly, Petitioner is not entitled to habeas relief on this part of Ground 1.
11
Moreover, the trial record supports the jury’s finding that Quinteros was not
part of the conspiracy, thus further indicating the jurors understood the conspiracy
instructions. Unlike Petitioner and Macias, Quinteros’s name was not mentioned in the
alleged kite, and he was not mentioned on the prison recording. (See ECF No. 16-4 at 13135; ECF No. 16-5 at 116-84; ECF No. 16-7 at 10; ECF No. 16-9 at 148.) In addition, the
parties stipulated during the trial that Quinteros was not a documented street gang member
and not a validated Mexican Mafia associate, and had been in Ad. Seg. Yard for only 17
days as of July 5, 2010, the date of the incident. (See ECF No. 16-6 at 137; ECF No. 16-7
at 90.)
22
16-cv-02133-WQH (RNB)
1
2
3.
3
Aiding and Abetting Instructions
a.
Background
4
Petitioner’s jury received the following aiding and abetting instructions:
5
400. AIDING AND ABETTING: GENERAL PRINCIPLES
6
A person may be guilty of a crime in two ways. One, he may have directly
committed the crime. Two, he may have aided and abetted someone else, who
committed the crime. In these instructions, I will call that other person the
“perpetrator.” A person is equally guilty of the crime whether he committed
it personally or aided and abetted the perpetrator who committed it.
7
8
9
10
401. AIDING AND ABETTING: INTENDED CRIMES
11
To prove that a defendant is guilty of a crime based on aiding and abetting
that crime, the People must prove that:
12
1.
The perpetrator committed the crime;
13
2.
The defendant knew that the perpetrator intended to commit the
crime;
3.
Before or during the commission of the crime, the defendant
intended to aid and abet the perpetrator in committing the crime;
AND
4.
The defendant’s words or conduct did in fact aid and abet the
perpetrator’s commission of the crime.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he specifically intends to, and does in fact, aid,
facilitate, promote, encourage, or instigate the perpetrator’s commission of
that crime.
If all of these requirements are proved, the defendant does not need to actually
have been present when the crime was committed to be guilty as an aider and
abettor.
A person who aids and abets a crime is not guilty of that crime if he withdraws
before the crime is committed. To withdraw, a person must do two things:
1.
He must notify everyone else he knows is involved in the
commission of the crime that he is no longer participating. The
notification must be made early enough to prevent the
commission of the crime. AND
28
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16-cv-02133-WQH (RNB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
2.
He must do everything reasonably within his power to prevent
the crime from being committed. He does not have to actually
prevent the crime.
The People have the burden of proving beyond a reasonable doubt that a
defendant did not withdraw. If the People have not met this burden, you may
not find the defendant guilty under an aiding and abetting theory.
(ECF No. 16-1 at 111-13.)
b.
Analysis
Petitioner contends the prosecution confused the jury by not limiting the aiding and
abetting instructions given at trial, CALCRIM Nos. 400 and 401, to the offenses of
attempted murder and aggravated assault. (Pet. at 6.) Petitioner further contends that the
prosecution’s closing argument regarding the conspiracy charge – that all three defendants
joined the conspiracy, at the very least, “at the time of the attack, because it [was] a
coordinated attack” – was confusing to the jury. (See id. at 6-7; ECF No. 16-9 at 83.)
Petitioner asserts that this line of argument may have caused the jury to confuse the theory
of aiding and abetting, which does not require a prior agreement, with conspiracy, which
does require such an agreement. (ECF No. 16-12 at 26.) In other words, Petitioner argues
the jury may have found Petitioner guilty of conspiracy on an aiding and abetting theory,
which is insufficient under the law.
As the Court of Appeal stated:
24
A conviction for conspiracy requires proof of four elements: (1) an agreement
between two or more people, (2) who have the specific intent to agree or
conspire to commit an offense, (3) the specific intent to commit that offense,
and (4) an overt act committed by one or more of the parties to the agreement
for the purpose of carrying out the object of the conspiracy. (People v. Vu
(2006) 143 Cal.App.4th 1009, 1024.)
25
(ECF No. 16-14 at 19.) Liability on an aiding and abetting theory, on the other hand, does
26
not require an agreement between two or more people.
27
(CALCRIM 401).) Therefore, Petitioner argues that a person can aid and abet without
28
entering a conspiracy; however, an aider and abettor cannot be held liable for the crime of
21
22
23
(ECF No. 16-1 at 112-13
24
16-cv-02133-WQH (RNB)
1
conspiracy without more. (See Pet. at 8.)
2
The Court of Appeal addressed this argument and rejected Petitioner’s contention
3
that the prosecution relied on an improper legal theory. (ECF No. 16-14 at 26.) The Court
4
of Appeal reasoned:
5
Finally, contrary to [Petitioner]’s contention, the record does not show
that the prosecution relied on the improper legal theory that [Petitioner] could
be found guilty of conspiracy by aiding and abetting the assault on Ortiz in
the prison yard. CALCRIM No. 415, which the court gave to the jury,
informed the jury that conspiracy was separate and distinct from aiding and
abetting. Specifically, the instruction explained that “a defendant may be
guilty of a crime if he either commits the crime or aids and abets the crime.
He may also be guilty if he is a member of a conspiracy.” During his closing
argument, the prosecutor specifically argued that [Petitioner], Macias, and
Quinteros “all committed the crime of conspiracy to commit murder” and that
aiding and abetting was only relevant to the attempted murder charge, and
only as to Quinteros.
6
7
8
9
10
11
12
13
14
(Id.)
15
Even assuming the aiding and abetting instructions given to the jury were
16
ambiguous, Petitioner is not entitled to relief unless he demonstrates that there was a
17
“reasonable likelihood” that the jury applied the instructions in a way that relieved the
18
People of its burden of proving every element of the crime beyond a reasonable doubt. See
19
Waddington, 555 U.S. at 190-91. Here, the Court finds that the Court of Appeal reasonably
20
determined that the prosecutor’s closing argument did not cause the jury to apply the aiding
21
and abetting instructions in a way that relieved the People of its burden as to the conspiracy
22
charge. See id. at 192-93.
23
///
24
///
25
///
26
///
27
///
28
///
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1
At no point did the trial court, the prosecution, Petitioner’s counsel,12 or the jury
2
instructions indicate that the jury could find Petitioner liable for conspiracy to commit
3
murder on an aiding and abetting theory. (See e.g., ECF No. 16-9 at 73-95; ECF No. 16-1
4
at 114-16 (CALCRIM No. 415); 117-18 (CALCRIM No. 417).) At all times during the
5
trial, it was clear that the prosecution needed to prove, and the jury needed to find, that
6
Petitioner intended to enter an agreement, and did enter an agreement, in order to be held
7
liable for the crime of conspiracy to commit murder. As the prosecutor clearly stated in
8
his closing remarks:
9
10
11
12
13
14
15
16
17
We’re asking you to make a finding that [Petitioner] joined the
conspiracy, that [Petitioner] attempted a murder, either by himself when he
was going for the jugular or for the neck, or as an aider and abettor when he’s
holding Ortiz as Macias is slashing him like in the movies, and that he
participated in the assault by means likely to cause great bodily harm.
I did not prove to you when -- I’m sorry, let me rephrase that. I proved
to you that these defendants joined the conspiracy in the yard. And I conceded
the fact that maybe they knew ahead of time in their cells, but I don’t know.
Okay. I don’t have to prove to you the -- if they joined the conspiracy before
the yard, I just have to prove to you they in fact joined the conspiracy. . . . .
(ECF No. 16-9 at 187.)
18
Based on the foregoing, the Court finds that Petitioner has failed to demonstrate that
19
the Court of Appeal’s rejection of his aiding and abetting jury instruction claim either was
20
contrary to, or involved an unreasonable application of, clearly established Supreme Court
21
22
23
24
25
26
27
28
12
Petitioner’s counsel argued during closing arguments that the prosecution
failed to prove each and every element of a conspiracy beyond a reasonable doubt, claiming
that there was no evidence of an agreement, and no overt act because Petitioner did not
have a weapon. (ECF No. 16-9 at 133-34.) Petitioner’s counsel argued the incident at
issue “was simply a fight.” (Id. at 136.) Petitioner’s counsel also addressed the aiding and
abetting claim stating that one of the elements is “intent,” and the prosecution has “to prove
beyond a reasonable doubt that [Petitioner] knew what Mr. Macias was going to do,” and
asserting “[t]here’s no proof of that.” (Id. at 139-40.) Petitioner’s counsel did not discuss
aiding and abetting in regards to the conspiracy charge.
26
16-cv-02133-WQH (RNB)
1
2
law.
Accordingly, Petitioner is not entitled to habeas relief on this part of Ground 1.
3
4
4.
Petitioner’s Related Sufficiency of the Evidence Claim
5
As the final part of his due process claim, Petitioner contends there was insufficient
6
evidence to prove beyond a reasonable doubt that he participated in any conspiracy, or even
7
had knowledge of one. (Pet. at 7.) Petitioner argues that the prosecution had no evidence
8
to prove his involvement in a conspiracy to commit murder, which is why the prosecution
9
confused the jury with the aiding and abetting instruction. (Id.)
10
11
a.
Applicable Federal Law
12
The Due Process Clause of the Fourteenth Amendment protects a criminal defendant
13
from conviction “except upon proof beyond a reasonable doubt of every fact necessary to
14
constitute the crime with which he is charged.” In re Winship, 397 U.S. at 364; accord
15
Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Thus, a state prisoner who alleges
16
that the evidence introduced at trial was insufficient to support the jury’s findings states a
17
cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 401-02 (1993). But
18
the prisoner faces a “heavy burden” to prevail on such a claim. Juan H., 408 F.3d at 1274,
19
1275 n.13. The question is whether, “after viewing the evidence in the light most favorable
20
to the prosecution, any rational trier of fact could have found the essential elements of the
21
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
22
(emphasis in original).
23
When determining the sufficiency of the evidence, a reviewing court makes no
24
determination of the facts in the ordinary sense of resolving factual disputes. Sarausad v.
25
Porter, 479 F.3d 671, 678 (9th Cir.), vacated in part, 503 F.3d 822 (9th Cir. 2007), rev’d
26
on other grounds, 555 U.S. 179 (2009). Rather, the reviewing court “must respect the
27
province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts,
28
and draw reasonable inferences from proven facts by assuming that the jury resolved all
27
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1
conflicts in a manner that supports the verdict.” Walters v. Maass, 45 F.3d 1355, 1358 (9th
2
Cir. 1995); see also Jackson, 443 U.S. at 319, 324, 326. Thus, in determining the
3
sufficiency of the evidence, “the assessment of the credibility of witnesses is generally
4
beyond the scope of review.” Schlup v. Delo, 513 U.S. 298, 330 (1995); see also United
5
States v. Lindsey, 634 F.3d 541, 552 (9th Cir. 2011); Bruce v. Terhune, 376 F.3d 950, 957
6
(9th Cir. 2004) (“A jury’s credibility determinations are . . . entitled to near-total deference
7
under Jackson.”).
8
While “mere suspicion or speculation cannot be the basis for the creation of logical
9
inferences,” Maass, 45 F.3d at 1358 (citation and internal quotation marks omitted),
10
“[c]ircumstantial evidence can be used to prove any fact, including facts from which
11
another fact is to be inferred, and is not to be distinguished from testimonial evidence
12
insofar as the jury’s fact-finding function is concerned.” United States v. Stauffer, 922 F.2d
13
508, 514 (9th Cir. 1990). Furthermore, “to establish sufficient evidence, the prosecution
14
need not affirmatively rule out every hypothesis except that of guilt.” Schell v. Witek, 218
15
F.3d 1017, 1023 (9th Cir. 2000) (en banc) (citation and internal quotation marks omitted).
16
In post-AEDPA cases, where, as here, a state court has issued a reasoned decision
17
rejecting a claim of insufficient evidence under a standard that is not “contrary to” Jackson,
18
a reviewing federal court applies an additional layer of deference. Juan H., 408 F.3d at
19
1274. “[A] federal court may not overturn a state court decision rejecting a sufficiency of
20
the evidence challenge simply because the federal court disagrees with the state court. The
21
federal court instead may do so only if the state court decision was objectively
22
unreasonable.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (citation and internal
23
quotation marks omitted); see also Juan H., 408 F.3d at 1275 n.13. This “double dose of
24
deference . . . can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir.
25
2011); see also Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (“We have
26
made clear that Jackson claims face a high bar in federal habeas proceedings because they
27
are subject to two layers of judicial deference”).
28
Thus, a state court’s resolution of an insufficiency of the evidence claim is evaluated
28
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1
under 28 U.S.C. § 2254(d)(1), not § 2254(d)(2). See Emery v. Clark, 643 F.3d 1210, 1213-
2
14 (9th Cir. 2011) (“When we undertake collateral review of a state court decision rejecting
3
a claim of insufficiency of the evidence pursuant to 28 U.S.C. § 2254(d)(1) . . . we ask only
4
whether the state court’s decision was contrary to or reflected an unreasonable application
5
of Jackson to the facts of a particular case”); see also Long v. Johnson, 736 F.3d 891, 896
6
(9th Cir. 2013) (“The pivotal question, then, is whether the California Court of Appeal . . .
7
unreasonably applied Jackson in affirming Petitioner’s conviction for second-degree
8
murder”); Boyer, 659 F.3d at 965 (“[T]he state court’s application of the Jackson standard
9
must be ‘objectively unreasonable’ to warrant habeas relief for a state court prisoner”);
10
Juan H., 408 F.3d at 1275 (“[W]e must ask whether the decision of the California Court of
11
Appeal reflected an ‘unreasonable application of’ Jackson and Winship to the facts of this
12
case”) (citing 28 U.S.C. § 2254(d)(1)).
13
Finally, in adjudicating an insufficiency of the evidence claim, a federal habeas court
14
“look[s] to [state] law only to establish the elements of [the crime] and then turn[s] to the
15
federal question of whether the [state court] was objectively unreasonable in concluding
16
that sufficient evidence supported [the conviction].” Juan H., 408 F.3d at 1278 n.14
17
(citation omitted); see also McCurdy v. Attorney Gen., 229 F. App’x. 665, 666-67 (9th Cir.
18
2007) (“We look to [state] law only to establish the elements of the crime and then turn to
19
the federal question of whether the state court was objectively unreasonable in concluding
20
that sufficient evidence supported the conviction”)(citation, internal alterations and
21
quotation marks omitted); Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc)
22
(“The Jackson standard must be applied with explicit reference to the substantive elements
23
of the criminal offense as defined by state law”) (citation and internal quotation marks
24
omitted). In determining whether the evidence was sufficient, a federal court must follow
25
the California courts’ interpretation of state law. Bradshaw, 546 U.S. at 76; Emery, 643
26
F.3d at 1214.
27
///
28
///
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1
2
3
4
5
6
7
8
b.
Analysis
Under California law, a conviction for conspiracy requires proof of the following
four elements:
(1) an agreement between two or more people, (2) who have the specific intent
to agree or conspire to commit an offense, (3) the specific intent to commit
that offense, and (4) an overt act committed by one or more of the parties to
the agreement for the purpose of carrying out the object of the conspiracy.
(People v. Vu (2006) 143 Cal.App.4th 1009, 1024.)
(See ECF No. 16-14 at 19; see also Trav. at 9-10.)
9
In rejecting Petitioner’s insufficiency of the evidence claim, the Court of Appeal did
10
not explicitly refer to Jackson. (See ECF No. 16-14 at 25-26.) However, the California
11
standard for determining sufficiency of the evidence to support a conviction has been held
12
by the California Supreme Court to be identical to the federal standard enunciated by the
13
United States Supreme Court in Jackson. See People v. Johnson, 26 Cal. 3d 557, 576
14
(1980).
15
16
17
18
19
20
21
22
23
24
In finding that there was sufficient evidence to support a conspiracy conviction, the
Court of Appeal reasoned as follows:
[Petitioner] specifically acknowledges that “[t]he initiators of the
conspiracy, Jose Manuel Garcia and Juan Gabriel Morones, were recorded
discussing direct orders to kill several inmates, including [[Petitioner]] and
Ortiz,” and “[t]here was some evidence that [[Petitioner]] . . . had [his] name[]
taken out of the ‘hat’ by some other inmate with the proviso that [he]
participate in the pending assault [on Ortiz].” This evidence, when considered
with Ortiz’s testimony that [Petitioner] tried to cut his neck during the
videotaped prison yard assault, is sufficient to “support[] an inference that the
parties . . . tacitly came to a mutual understanding to commit a crime” (People
v. Prevost, supra, 60 Cal.App.4th at p. 1399), here the murder of Ortiz.
(ECF No. 16-14 at 25-26.)
25
The gravamen of Petitioner’s challenge to the Court of Appeal’s rejection of his
26
insufficiency claim appears to be that he disputes the Court of Appeal’s statement in its
27
opinion that “it is not necessary to demonstrate that the parties met and actually agreed to
28
undertake the unlawful act,” but rather a conspiracy may be proved through circumstantial
30
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1
evidence. (See Pet. at 6-9; Trav. at 12 (citing ECF No. 16-14 at 25 (citing People v. Prevost,
2
60 Cal. App. 4th 1382, 1399 (1998); People v. Vu, 143 Cal. App. 4th 1009, 1024-25
3
(2006)).) According to Petitioner, this is an inaccurate statement of the law. (See Trav. at
4
12.) However, the fallacy of Petitioner’s contention is that the Supreme Court has
5
“repeatedly held that a state court’s interpretation of state law, including one announced on
6
direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”
7
See Bradshaw, 546 U.S. at 76. Moreover, as noted above, for purposes of the Jackson
8
standard, circumstantial evidence can be used to prove any fact. See Stauffer, 922 F.2d at
9
514.
10
For the foregoing reasons, the Court finds that Petitioner has failed to establish that
11
the Court of Appeal’s rejection of his insufficiency of the evidence claim was contrary to,
12
or involved an unreasonable application of, clearly established Supreme Court law.
13
Accordingly, Petitioner is not entitled to habeas relief on this last part of Ground 1.
14
15
B.
16
In Ground 2 of the Petition, Petitioner claims his Sixth and Fourteenth Amendment
17
rights were violated when the trial judge refused to call a mistrial after the jury witnessed
18
Petitioner’s co-defendant Macias “slash” his own attorney. (Pet. at 10-12.)
Habeas Relief is Not Warranted with Respect to Ground 2 of the Petition.
19
20
1.
Background of the Macias incident
21
Based on its independent review of the record, the Court adopts the following factual
22
summary of the Macias incident from the Court of Appeal opinion as a fair and accurate
23
summary of the underlying facts13:
24
25
26
27
28
13
The Court notes that Petitioner does not contend the Court of Appeal’s
recitation of the background facts related to the Macias incident is inaccurate in any respect.
Moreover, Petitioner’s discussions of the Macias incident in his filings before the Court of
Appeal and California Supreme Court are not inconsistent with the Court of Appeal’s
factual summary. (See ECF No. 16-12 at 30-39; ECF No. 16-15 at 26-31.) The Court
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[a].
Macias’s courtroom assault on his attorney and related
proceedings that day
On December 13, 2012, after Quinteros, Macias, and [Petitioner] rested
their cases, the prosecution recalled Ignacio Bravo, a correctional officer at
Donovan Prison, as its first rebuttal witness. As Officer Bravo was testifying,
Macias slashed his attorney, William Burgener, in the face with a small razor
blade he had concealed in his mouth. Burgener jumped up and exclaimed,
“What the fuck did you do to me?” Macias tried to stand up but could not do
so because he was bolted down. A bailiff said, “Call first aid.” The bailiffs
then jumped on Macias. The court said, “Everybody stay right there.”
Immediately thereafter, Macias stated, “It didn’t have nothing to do
with you guys. Officer Bravo—” The court silenced him, stating, “Mr.
Macias, you need to keep quiet.” The jurors left the courtroom after the
defendants were removed from the courtroom. Burgener was taken to the
hospital where he received stitches for his wound.
Outside the presence of the jury, in another courtroom, the trial judge
summarized what had occurred:
“So we were in a different department, Department 25, when
Officer Bravo was about to testify as a rebuttal witness for the
prosecution. He was the last witness before we were going to
instruct the jurors. And as soon as Mr. Bravo took the stand, Mr.
Macias apparently had secreted a small—very small razor blade
that had some cloth wrapped around the bottom of it, so it was
probably maybe a quarter of an inch point, maybe, or maybe
three-eighths of an inch point. And he slashed—I guess it was
in his mouth. He took it out of his mouth and he slashed Mr.
Burgener with it.
“[Macias] was I bolted to the floor so he couldn’t get up. And so
then Mr. Burgener jumped up and yelled and had blood on his
22
23
24
25
26
27
28
further notes that it was not provided with a transcript of the trial court’s December 14,
2012 in camera hearing during which the trial judge questioned each juror to see if they
felt they could proceed with the trial. (See ECF No. 16-2 at 98.) However, the Court of
Appeal’s opinion does not conflict with Petitioner’s discussion of what occurred during
this hearing, Respondent’s account of what occurred, or the trial court’s discussion of the
outcome. (See ECF No. 16-13 at 29-37; ECF No. 16-8 at 56-73.)
32
16-cv-02133-WQH (RNB)
face, and apparently, according to Agent Epperson,[14] had a
pretty deep cut on his jawline on his right side.
1
2
“So Mr. Burgener had to go to the hospital because it looks like
he might have to have stitches. He definitely needs to have that
wound thoroughly cleaned. And he’s no longer here today.
3
4
“But we have a jury that we swore in and listened to the entire
proceedings and we were about to instruct. And so since Mr.
Burgener is at the hospital and cannot be here, I wanted to have
Mr. Macias represented when we decide what kind of--how we
are going to proceed from here.
5
6
7
8
“And so that’s why you are here, Mr. Cline.[15] And so now I
don’t know if you had an opportunity to talk to [[Petitioner]’s
attorney] or [Quinteros’s attorney], but I kind of wanted to get an
idea of what they think should happen next in their judgment.”
9
10
11
12
13
14
15
16
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18
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22
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25
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28
At that point, Quinteros’s counsel made a motion for mistrial, stating
that defendant Macias’s conduct in the courtroom involved “the same thing
that all three defendants are charged with in this case.” [Petitioner]’s attorney
stated he was leaning toward a mistrial motion, but first he needed to speak
with his client. When Quinteros’s attorney pointed out that Macias had been
in the courtroom out of the presence of the jury for 30 minutes before he
attacked his attorney, the prosecutor responded that Macias attacked Burgener
“[o]nly after the jury was brought in[ and] only when the witness took the
stand,” which suggested Macias slashed his attorney “for the benefit of the
jury.”
Indicating that the court needed to speak with Macias’s attorney to
determine whether he wanted to “conflict out,” the prosecutor stated that
Macias should not benefit from his conduct. The prosecutor suggested Macias
would be entitled to a mistrial if Burgener decided he could not continue as
Macias’s trial counsel because “no one else is ready to represent him at this
time.” The prosecutor also suggested that the court question the jurors to
determine whether they could be fair and that it draft a special jury instruction
indicating Macias’s conduct could not be used against Quinteros and
14
Steve Epperson, a special agent at the Special Service Unit of the California
Department of Corrections, had previously testified during the People’s case-in-chief.
Agent Epperson, who was in the courtroom at the time Macias slashed Burgener with the
razor blade, assisted Burgener in the courtroom before he was taken to the hospital.
15
Attorney Stephen Cline made a special appearance on behalf of Macias.
33
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1
[Petitioner].
2
After further discussion, the prosecutor told the court he was going to
“change [his] position,” noting that he had consulted with a senior deputy
attorney general, and he believed “[Petitioner] and [Quinteros] have a built in
reversal issue because of the horrific act done by Macias.” The court noted
that the jury had witnessed a “slash attack” that was potentially traumatizing
and upsetting for them. Stating that “we’re asking a lot” of the jurors by asking
them to “forget what [they] saw” and deliberate, the court commented that
“we’re probably going to do the mistrial route as to [[Petitioner] and
Quinteros].”
3
4
5
6
7
8
9
10
11
12
13
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16
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After a recess, [Petitioner]’s attorney indicated that he had conferred
with [Petitioner] and that they “wish[ed] to continue on with the trial and
finish it up.” Quinteros’s counsel, however, requested that the court declare
a mistrial. Cline, the attorney specially appearing for Macias, stated he
thought a mistrial “would be appropriate under the circumstances,” but he
would “defer to the court.” In response, the prosecutor suggested that the
court send the jury home to allow the parties to conduct research regarding
the issue.
Noting that it also wished to hear from Macias’s counsel, Burgener, the
court declared a recess.
The court brought the jurors back into the courtroom and gave the
following admonishment:
“First of all, I want to apologize for you[r] having to witness what
some of you witnessed. And I also want to apologize for the
inconvenience of having you all interviewed because an alleged
crime occurred in your presence, and so you were witnesses to
that alleged crime, so you were interviewed as witnesses.
“Now, I’ve been doing criminal cases, either as a lawyer or as a
judge, for 30 years, and this is the first time something like this
has ever happened, and so I think all--and there are
countervailing constitutional rights at play here for defendants,
for the prosecutor, and so most of us have not experienced
something like this either, so I think we all just need to--the
lawyers need to all call time out and do a little research and try
to figure out how we should proceed.
“So what that means for you, is that we’d like you to return
tomorrow morning at 10:00, and we’re going to have a little
conference between 9:30 and 10:00 with the lawyers, and then
we’re going to try to figure out what our next step is. So it may
34
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be that we’re going forward and doing closing argument. It may
be that we are declaring a mistrial and you’ll all be excused. But
before we figure out what the answer to some of those questions
are, we need to have a little time to research it. Okay.
“So now this is going to be the hardest part of the next 22 hours,
is that you are not to form or express an opinion about this case,
you’re not to discuss it among yourselves or with others, so that’s
really important, because I know that this incident is going to be
on the news, and so if you can avoid watching the news, that
would be great. It’s also going to be in the paper, so please do
not read a newspaper article about it, and please do not discuss it
with your loved ones. Just say I can’t talk about it until the trial
is over.
“And I appreciate your work on this case. We’re actually, before
this happened, we were making very good progress, and we were
going to be doing closing argument, some today and some on
Friday.
“So we’re actually way, way ahead of schedule. And so, I mean,
we still have a little more time to dedicate to this case, like we
told you.
“So anyway, so tomorrow morning at 10:00 o’clock in
Department 25. Not here. This is our normal department, but that
department is a little bit bigger and it accommodates everybody
a little better.
“So you’re ordered to appear tomorrow morning at 10:00 o’clock
outside Department 25. And like I said, I know it’s going to be
really hard to compartmentalize this, but I’m going to ask you do
that. And if we do go forward with argument and deliberations,
that you not let what happened in the courtroom affect what you
think the evidence does or does not show about what happened
at Donovan.
“So what happened at Donovan is what you’re charged with
deciding, not what happened in our courtroom. Okay. [¶]
Alright. Thank you very much. And you are excused for the day.”
(Italics added.)
Outside the presence of the jury, attorney Cline represented to the court
that Burgener’s wound did not appear to be life threatening and he was being
evaluated by a plastic surgeon. Cline also stated that Burgener believed he
had a conflict with Macias and he could not effectively represent him. The
35
16-cv-02133-WQH (RNB)
1
court then adjourned the hearing to give the parties time to conduct research.
[b].
2
3
4
5
6
7
8
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The court’s in-camera interviews of the jurors and alternate
jurors
The following day, December 14, the prosecution filed an opposition
to the defense motion for mistrial. The prosecution urged the court, before
deciding whether a mistrial should be declared, to inquire of the jurors
whether they could “put the incident aside and decide this case solely on the
facts as presented [at] trial and not be influenced by [Macias’s] conduct.” The
prosecution argued that Macias’s attack on his attorney warranted his removal
from the courtroom and that by his actions he had forfeited his right to
appointed counsel if Burgener was unable to continue representing him.
At the follow-up hearing that day, outside the presence of the jury,
attorney Burgener told the court he was prepared to go forward with closing
arguments on behalf of Macias. In response to the court’s inquiry, the
prosecutor informed the court that any prosecution of Macias for his
courtroom behavior would be handled by the Attorney General’s Office. The
prosecutor argued that the incident in the courtroom did not necessarily create
a conflict between Burgener and Macias and that it was “allowable and
appropriate” for Burgener to continue representing Macias.
The trial court then indicated it believed Burgener had an actual conflict
with Macias, notwithstanding Burgener’s willingness to continue with the
trial, and despite the prosecutor’s argument to the contrary. Cline, who again
was specially appearing on behalf of Macias, told the court he also believed
that an actual conflict existed between Burgener and Macias and then
represented that Macias did not believe he could work with Burgener.
Burgener reiterated that he was “happy to go forward” despite the fact he had
received several fine stitches along his jawline.
The court then held an in camera Marsden16 hearing with Macias,
Burgener, and Cline to determine whether Burgener should continue
representing Macias. Following the hearing, the court relieved Burgener as
Macias’s counsel. The court also found that Macias had forfeited his right to
appointed counsel, indicating that Macias should not benefit from his own
wrongdoing. The court appointed Cline as Macias’s standby counsel. The
court then stated it would conduct an in camera hearing with each individual
juror to determine whether he or she could be fair and impartial, and then it
would address any mistrial motions by the defendants.
During the in camera hearing, the court, with counsel present,
16
People v. Marsden (1970) 2 Cal. 3d 118.
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individually and privately questioned each of the 12 jurors and three alternate
jurors outside the presence of the defendants and the other jurors. The court
generally asked each juror four questions: (1) whether the juror could put aside
what the juror saw, and fairly and impartially evaluate the evidence; (2)
whether the juror could not let what the juror saw affect how he or she looked
at Quinteros and [Petitioner], given that neither of these defendants was
involved in the incident; (3) whether the juror could fairly and impartially set
aside what the juror saw with regard to defendant Macias and decide the
charges based on what Macias allegedly did on the date of the charged
incident; and (4) whether the juror was interviewed by the sheriff.
As pertinent here, jurors Nos. 1, 3, 4, and 7 through 15 indicated that
they were able to put aside their observations of the Macias incident and fairly
and impartially evaluate the evidence and that the incident would not
influence how they viewed the evidence against Quinteros, [Petitioner], and
Macias.
Juror No. 2, when asked the first question, stated: “My feeling is yes,
but I think if once we adjourn to go through the case, we’ll be doing a lot of
talking.” The court indicated that the conversation should not be about what
happened in court between Macias and Burgener, and juror No. 2 replied, “I
understand.” When the court asked juror No. 2 whether he could abide by an
instruction not to consider what had happened in court, he indicated he could
do so. Juror No. 2 then indicated he would “certainly try” to not let the
incident affect his deliberations with regard to Quinteros and [Petitioner], but
indicated that “there’s got to be an effect” and noted that he observed “a young
man that had a very bad temper.” The court asked juror No. 2 whether—as to
Macias—he could set aside what happened in court and decide the case on
what was said on the witness stand. Juror No. 2 replied, “Yes, we could go
through our notes and tally it up and figure what’s correct.”
Jurors Nos. 5 and 6 indicated they did not believe they could be fair and
impartial after observing Macias’s conduct. The court excused those jurors
and replaced them with alternate jurors.
[i].
Quinteros’s mistrial motion;[Petitioner]’s joinder and
motion to sever
Following the in camera interviews of the jurors, and out of the
presence of the jury, Quinteros moved for a mistrial based on the slashing
incident in the courtroom. Quinteros’s counsel argued that Macias, by cutting
his attorney with a razor in the courtroom, painted Quinteros and [Petitioner]
in a bad light, although they were not involved in that incident. He also
indicated the Macias incident undermined Quinteros’s trial defense of
37
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
downplaying Ortiz’s injuries. Quinteros’s counsel also argued the jurors
could not put the courtroom incident aside even if they said they could.
[Petitioner] and Macias joined Quinteros’s mistrial motion. [Petitioner]
also moved for severance of his trial.
The court noted that 13 of the 15 jurors interviewed said they could be
fair and impartial and could set aside what happened, while the two who said
they could not were excused. The court stated it did not see how the Macias
incident undercut any argument Quinteros intended to make as to the severity
of Ortiz’s injuries. The court also noted that both Quinteros and [Petitioner]
sat still during the Macias incident, they appeared to be unaware that Macias
was going to do what he did to Burgener, and the jurors indicated they would
not hold Macias’s actions against Quinteros and [Petitioner].
Following further discussion, the court denied the motions for mistrial,
reiterating that the jurors indicated they could be fair and impartial and the
court had to “take them at their word” and “trust them.” The court also denied
[Petitioner]’s severance motion.
[c]
Special jury instructions
Prior to deliberations, the jury was instructed that it must decide the
case based only on the evidence presented in the courtroom. The court also
gave the jury the following special limiting instruction:
“Your task is deciding what occurred on July 5th, 2010, at R.J.
Donovan state prison. Once you agree . . . on what the facts are
in this case, you are to apply the law set forth in these instructions
to those facts.
“Ultimately, you will decide whether this case has been proven
beyond a reasonable doubt. If it has not been proven beyond a
reasonable doubt, you must find the defendants, or any individual
defendant against whom the case has not been proven, not guilty.
“In reaching your determination, you are not to consider
anything that you observed, or heard in the courtroom on
December 13, 2012. Those events should not enter into or affect
your deliberations in any way.” (Italics added.)
[d].
Jury deliberations, verdicts, and denial of [Petitioner]’s new
trial motion
After about four and a half hours of deliberations, the jury found
[Petitioner] guilty of all three charged offenses (conspiracy to commit murder,
attempted murder, and assault with a deadly weapon by a prisoner) and found
to be true the gang enhancement allegation attached to each of those three
38
16-cv-02133-WQH (RNB)
1
counts.
The jury also found Macias guilty on all three counts.
2
4
The jury found Quinteros guilty of assault with a deadly weapon by a
prisoner, but found him not guilty of conspiracy to commit murder and
attempted murder, and also found the related gang allegations to be not true.
5
Thereafter, the court denied [Petitioner]’s motion for a new trial.
3
6
(ECF No. 16-14 at 27-36 (emphasis in original).)
7
8
2.
Analysis
9
A criminal defendant has a Sixth Amendment right to an impartial jury where jurors
10
consider only the evidence which is presented to them in open court. Turner v. Louisiana,
11
379 U.S. 466, 472-73 (1965) (“The requirement that a jury’s verdict must be based upon
12
the evidence developed at the trial goes to the fundamental integrity of all that is embraced
13
in the constitutional concept of trial by jury.”). However, “due process does not require a
14
new trial every time a juror has been placed in a potentially compromising situation . . . .
15
Due process means a jury capable and willing to decide the case solely on the evidence
16
before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine
17
the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217
18
(1982).
19
Pursuant to clearly established Supreme Court precedent, “[a] court confronted with
20
a colorable claim of juror bias must undertake an investigation of the relevant facts and
21
circumstances.” Dyer v. Calderon, 151 F.3d 970, 974 (9th Cir. 1998) (citing 28 U.S.C. §
22
2254(d)(3)(1994); Remmer v. United States, 350 U.S. 377, 379 (1956); Remmer v. United
23
States, 347 U.S. 227, 230 (1954)17); see also Godoy v. Spearman, 861 F.3d 956, 962, 969
24
25
26
27
28
17
Remmer provides that “[i]n a criminal case, any private communication,
contact, or tampering directly or indirectly, with a juror during a trial about the matter
pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not
made in pursuance of known rules of the court and the instructions and directions of the
court made during the trial, with full knowledge of the parties. The presumption is not
39
16-cv-02133-WQH (RNB)
1
(9th Cir. 2017). “An informal in camera hearing may be adequate for this purpose; due
2
process requires only that all parties be represented, and that the investigation be
3
reasonably calculated to resolve the doubts raised about the juror’s impartiality.” Id. at
4
974-75 (citing Smith, 455 U.S. at 217; United States v. Boylan, 898 F.2d 230, 258 (1st Cir.
5
1990)). “So long as the fact-finding process is objective and reasonably explores the issues
6
presented, the state trial judge’s findings based on that investigation are entitled to a
7
presumption of correctness.” Id. at 975 (citing Tinsley v. Borg, 895 F.2d 520, 526 (9th Cir.
8
1990)).
9
Here, the record reflects the trial court complied with Supreme Court precedent by
10
investigating the relevant facts and circumstances of alleged juror bias. In accordance with
11
Remmer and Smith, as set forth above, a hearing was held to determine whether Petitioner
12
suffered prejudice as a result of the Macias incident. After Petitioner’s co-defendants made
13
a motion for mistrial, the trial judge held an in camera hearing with counsel present, and
14
“individually and privately questioned each of the 12 jurors and three alternate jurors
15
outside the presence of the defendants and other jurors.” (ECF No. 16-14 at 28, 33; see
16
also ECF No. 16-8 at 37, 57.) The trial judge generally asked each juror four questions:
17
18
19
20
21
22
23
24
25
26
27
28
(1) whether the juror could put aside what the juror saw, and fairly and
impartially evaluate the evidence; (2) whether the juror could not let what the
juror saw affect how he or she looked at Quinteros and [Petitioner], given that
neither of these defendants was involved in the incident; (3) whether the juror
could fairly and impartially set aside what the juror saw with regard to
defendant Macias and decide the charges based on what Macias allegedly did
on the date of the charged incident; and (4) whether the juror was interviewed
by the sheriff.
(ECF No. 16-14 at 33.)
After two jurors indicated they did not believe they could be fair and impartial after
conclusive, but the burden rests heavily upon the Government to establish, after notice to
and hearing of the defendant, that such contact with the juror was harmless to the
defendant.” Id. at 229 (citing Mattox v. United States, 146 U.S. 140, 148-50 (1892);
Wheaton v. United States, 133 F.2d 522, 527 (8th Cir. 1943)).
40
16-cv-02133-WQH (RNB)
1
observing Macias’s conduct, the trial judge excused and replaced them with alternate
2
jurors. (Id. at 34.) The remaining jurors indicated they could fairly and impartially evaluate
3
the evidence and the incident would not influence how they viewed the evidence against
4
Petitioner and his co-defendants. (Id. at 33.) The trial judge found them credible and let
5
them remain on the jury. (ECF No. 16-14 at 33-35; ECF No. 16-8 at 69-71.)
6
Following the in camera questioning of the jurors, all three defendants made a
7
motion for a mistrial, and Petitioner moved for severance of his trial. (ECF No. 16-14 at
8
34; ECF No. 16-8 at 61-73.) The trial court thereafter permitted defense counsel, outside
9
the presence of the jury, to make arguments in support of their motion. (ECF No. 16-8 at
10
61-73.) Defense counsel argued that Macias’s conduct painted Petitioner and co-defendant
11
Quinteros in a bad light, and that the jurors could not put the courtroom incident aside even
12
if they said they could. (ECF No. 16-8 at 61-73.) The trial court disagreed. (ECF No. 16-
13
14 at 34-35; ECF No. 16-8 at 70-73.) After taking into consideration the prosecution’s
14
arguments, the trial court denied the motions for a mistrial and Petitioner’s severance
15
motion. (Id.)
16
Subsequently, prior to deliberations, the trial court gave the jury the following
17
special limiting instruction: “In reaching your determination, you are not to consider
18
anything that you observed, or heard in the courtroom on December 13, 2012. Those events
19
should not enter into or affect your deliberations in any way.” (ECF No. 16-14 at 35; ECF
20
No. 16-1 at 100.)
21
Based on the foregoing, the Court finds the Court of Appeal’s determination that the
22
trial court did not abuse its discretion in denying Petitioner’s motion for mistrial on the
23
issue of juror bias was not contrary to, nor an unreasonable application of, Remmer and
24
Smith. See Hedlund v. Ryan, 854 F.3d 557, 574 (9th Cir. 2017) (citing Smith, 455 U.S. at
25
215) (stating that where the trial judge conducts a hearing to explore the issue of juror bias
26
and the defendant has the opportunity to prove actual bias, “[t]his is the remedy prescribed
27
by the Supreme Court.”)
28
Petitioner challenges the sufficiency of the trial court’s impartiality finding as to
41
16-cv-02133-WQH (RNB)
1
Juror No. 2. Petitioner argues that Juror No. 2 admitted he was affected by the attack, and
2
therefore this was evidence of actual bias.18 (Pet. at 11-12.) The trial court’s finding that
3
Juror No. 2 was not biased, is a factual finding that is subject to a presumption of
4
correctness on federal habeas review, because “resolution [of the juror impartiality issue]
5
depends heavily on the trial court’s appraisal of witness credibility and demeanor.” See,
6
e.g., Thompson v. Keohane, 516 U.S. 99, 111 (1995); Wainwright v. Witt, 469 U.S. 412,
7
428-29 (1985); Patton v. Yount, 467 U.S. 1025, 1038 (1984); see also Hedlund, 854 F.3d
8
at 574 (quoting Dyer, 151 F.3d at 975) (“So long as the fact-finding process is objective
9
and reasonably explores the issues presented, the state trial judge’s findings based on that
10
investigation are entitled to a presumption of correctness.”); Fields v. Woodford, 309 F.3d
11
1095, 1103 (9th Cir. 2002) (the determination of whether a juror is actually biased is a
12
question of fact).
13
Here, Petitioner has not met his burden of adducing clear and convincing evidence
14
to overcome this presumption. See 28 U.S.C. § 2254(e)(1); see also Smith, 455 U.S. at 218
15
(reiterating Supreme Court law that in § 2254 habeas proceedings the trial judge’s findings
16
are presumptively correct and cannot be overcome without clear and convincing evidence).
17
Petitioner simply points to Juror No. 2’s statements to the trial judge during the in camera
18
hearing as clear and convincing evidence rebutting this presumption. (Pet at 11-12; Trav.
19
at 18.) The Court disagrees.
20
As the Court of Appeal observed, after Juror No. 2 stated that the Macias incident
21
would have “an effect” and observed “a young man that had a very bad temper,” he stated
22
he could set aside what happened in court and decide the case on what was said on the
23
witness stand. (ECF No. 16-14 at 34.) The trial court found Juror No. 2’s statement that
24
he could be fair and impartial to be credible. (ECF No. 16-14 at 34.) In addition, although
25
26
27
28
18
See Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (defining actual bias
as “bias in fact,” which is typically found when a prospective juror states that he can not
be impartial, or expresses a view adverse to one party’s position and responds equivocally
as to whether he could be fair and impartial despite that view.”).
42
16-cv-02133-WQH (RNB)
1
Juror No. 2 stated that the jury would be “doing a lot of talking” about the incident once
2
the jurors adjourned, the trial judge indicated the conversation should not be about what
3
happened between Macias and his counsel, and Juror No. 2 stated he understood. (ECF
4
No. 16-14 at 33.) The trial court was satisfied that no actual bias was present.
5
An initial equivocal response by a juror does not rebut the presumption the trial
6
court’s finding was correct, so long as the juror ends his answer with an unqualified
7
affirmative or negative regarding impartiality, which occurred here. See Hedlund, 854 F.3d
8
at 574, n. 11 (citing United States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir. 2000)).
9
Petitioner points to no authority requiring more assurance from Juror No. 2 than an
10
unqualified statement that he could be fair and impartial. See id. at 574 & n. 11 (citing
11
Bashor v. Risley, 730 F.2d 1228, 1237 (9th Cir. 1984) (no error in keeping juror when juror
12
responded to the question whether she could be impartial with, “Yes, I think I could.”))
13
(finding that petitioner did not rebut the presumption where the juror stated that she
14
“believed” she could be impartial, where the juror did not equivocate, and the trial court
15
“credited her response after asking further questions, observing her demeanor, and judging
16
her credibility”).
17
Petitioner also challenges the Court of Appeal’s finding that the jurors who
18
convicted him were not inherently biased. Petitioner contends there was incurable and
19
inherent prejudice caused by the Macias incident, and that even if the jurors stated they
20
could be impartial, it was erroneous to determine they could be under the circumstances.
21
(Pet. at 12.) Petitioner argues that it is “highly unlikely” that any juror could have exercised
22
independent judgment after witnessing Macias’s attack on his attorney, even if the juror
23
stated that he or she could. (Id. at 10-12.)
24
Implied bias is “bias conclusively presumed as a matter of law.” United States v.
25
Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009) (citing Gonzalez, 214 F.3d at 1111). Both
26
the Ninth Circuit and the Supreme Court have presumed bias based on the circumstances
27
in “extraordinary cases.” See Mitchell, 568 F.3d at 1151; Dyer, 151 F.3d at 981 (collecting
28
cases); Estrada v. Scribner, 512 F.3d 1227, 1240 (9th Cir. 2008). Implied bias is a mixed
43
16-cv-02133-WQH (RNB)
1
question of law and fact. Estrada, 512 F.3d at 1240; see also Hamilton v. Ayers, 583 F.3d
2
1100, 1107 (9th Cir. 2009). “[M]ixed questions of law and fact, including the prejudice
3
determinations in jury misconduct . . . petitions, are generally reviewed under section
4
2254(d)(1), not section 2254(d)(2).” Tong Xiong v. Felker, 681 F.3d 1067, 1074 (9th Cir.
5
2012).
6
However, there is no clearly established Supreme Court law regarding the issue of
7
implied bias.19 See Hedlund, 854 F.3d at 575; Fields, 309 F.3d at 1104 (“The Supreme
8
Court has never explicitly adopted (or rejected) the doctrine of implied bias.”); see also
9
Garcia v. Sherman, No. 1:13-cv-00448-SKO HC, 2016 WL 454439, at *8 (E.D. Cal. Feb.
10
5, 2016) (“Implicit Supreme Court approval and exceptions recognized by the Ninth Circuit
11
are not clearly established Federal law, as determined by the Supreme Court of the United
12
States.”). Accordingly, the Court cannot grant habeas relief on Petitioner’s implied bias
13
claim. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (where Supreme Court “cases
14
give no clear answer to the question presented, . . . it cannot be said that the state court
15
unreasonably applied clearly established Federal law.”); see also Quinteros v. Paramo, No.
16
16-cv-583-JLS (JLB), 2017 WL 1838929, at *6 n.2 (S.D. Cal. May 8, 2017).
17
Petitioner therefore is not entitled to habeas relief on Ground 2.
18
19
C.
20
In Ground 3 of the Petition, Petitioner claims his Sixth and Fourteenth Amendment
21
rights were violated when the trial court refused to declare a mistrial after the jury was
22
prejudiced to believe he was “violent, dangerous, and unpredictable because he was
23
‘shackled’ in the same way as his co-defendant [who] ‘slashed’ his attorney in court, in
24
front of the jury.” (Pet. at 13.) Petitioner contends the trial court had a responsibility to
25
26
27
28
Habeas Relief is Not Warranted with Respect to Ground 3 of the Petition.
19
Petitioner cites two circuit cases, Braswell v. United States, 200 F.2d 597 (5th
Cir. 1952) and United States v. Mannie, 509 F.3d 851 (7th Cir. 2007), in support of his
implied bias claim. (Pet at. 12.) However, neither case constitutes clearly established
federal law under the AEDPA.
44
16-cv-02133-WQH (RNB)
1
hold a hearing to ensure he would not suffer from a prejudiced jury, and to consider an
2
alternative remedy to shackling. (Id.) Petitioner further contends that his rights were
3
violated when the trial judge failed to guarantee his right to a fair trial by abdicating
4
decision-making responsibility to security personnel regarding Petitioner’s shackling. (Id.
5
at 13-14.)
6
7
1.
Background
8
Based on its independent review of the record, the Court adopts the following factual
9
summary of the shackling incidents from the Court of Appeal opinion as a fair and accurate
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
summary of the underlying facts20:
On December 13, 2012,21 in the presence of the jury about one minute
after Officer Bravo took the witness stand, Macias slashed his attorney’s
cheek with a small razor. All three defendants were removed from the
courtroom before the jury left the courtroom. Later that morning, outside the
presence of the jury, the court made a brief record (discussed, ante) of the
details of Macias’s attack on his attorney.
The next morning, December 14, outside the presence of the jury, the
court conducted a hearing at which Burgener, who had received what he
described as “fine” stitches for his facial wound, informed the court he was
prepared to go forward with closing argument on Macias’s behalf. In
discussing the courtroom attack with the parties’ attorneys, the court began by
finding that Quinteros was currently serving a 13-year prison sentence,
Macias was serving a 26-year prison sentence, and [Petitioner] had a “long
prison record.”
The court then made the following record—still outside the presence of
the jury—pertaining to the use of physical restraints in this case before and
20
The Court notes that Petitioner does not contend the Court of Appeal’s
recitation of the background facts related to the shackling incidents is inaccurate in any
respect. Moreover, Petitioner’s discussion of the shackling incidents in his filings before
the Court of Appeal and California Supreme Court is not inconsistent with the Court of
Appeal’s factual summary. (See ECF No. 16-12 at 42-48; ECF No. 16-15 at 31-35.)
21
All further dates are to calendar year 2012.
45
16-cv-02133-WQH (RNB)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
after Macias’s courtroom attack on Burgener:
“So during the entire course of the trial, all—I don’t know if we
ever put this on the record—all three defendants have been
bolted down with an I-bolt to the floor. So that means that they
have leg chains on that are strung to an I-bolt that’s cemented
into the floor so they can’t stand up all the way. But there’s a
skirt around the table, so the fact that they’re bolted down ... is
not apparent to the jury.
“And so that was done because of the fact that they all have long
and violent histories, and because two of them are sentenced
prisoners, and so as a precautionary measure, we had them bolted
down, although their hands were free.
“Now that Mr. Macias has attacked Mr. Burgener, I think it’s
appropriate and necessary to have Mr. Macias chained even in
the presence of the jury, with him not have [sic] his hands free,
although once the jury comes in, [Petitioner] and [Quinteros]
will appear unhandcuffed with their hands not restrained.
“And then when Mr. Macias testified, we excused the jury. Mr.
Macias got on the stand. He did have leg chains on, but there—
it may be apparent to one alternate juror, but not to the other
jurors because of the configuration of the witness stand. And
then when he was done testifying, we sent the jury out and he
came off the stand, so they did not see that he had leg chains on.
“So I just want to put that on the record, because we had not put
that on the record before. There was no objection from any of
the attorneys or the defendants to being chained down, bolted
down that way, so that’s the way we proceeded, because we
needed that extra security. And apparently that was not even
good enough to prevent what happened yesterday.” (Italics
added.)
Later that morning, as already discussed, the court conducted an in
camera hearing and individually questioned each of the 12 jurors and three
alternate jurors to determine whether they were able to put aside their
observations of the Macias’s courtroom attack on Burgener and fairly and
impartially evaluate the evidence. Although the defense attorneys were
present during the hearing, the defendants—Quinteros, Macias, and
[Petitioner]—were not present.
Later, at around 12:16 p.m. that same day (December 14), the court
conducted a brief hearing at which Quinteros, Macias, [Petitioner], and their
46
16-cv-02133-WQH (RNB)
1
counsel appeared in the presence of the jury. At that hearing, which the record
shows lasted only a few minutes, the court admonished and excused the jury,
directing them to return on December 19. Outside the presence of the jury,
the court conducted a hearing on [Petitioner]’s mistrial motion, which
Quinteros joined. As discussed, ante, the court denied the motion.
2
3
4
At the next hearing, held outside the presence of the jury on December
19, [Petitioner]’s attorney, apparently joined by Quinteros’s counsel, renewed
the motion for a mistrial, asserting that the jury saw [Petitioner] (and
Quinteros) shackled on December 14. The court denied the motion, noting
that [Petitioner] and Quinteros were “shackled in front of the jury very
briefly,” but were no longer shackled and would not be shackled.
[Petitioner]’s and Quinteros’s attorneys declined the trial court’s offer to
provide the jury a limiting instruction regarding shackles. The court noted
that some of the jurors may have seen the defendants getting unchained from
the floor22 on the day of Macias’s courtroom attack on his attorney when they
were taken out of the courtroom, but this would have been the first time the
jurors became aware that the defendants were restrained. The court further
noted that, except for “that one brief hearing” at which [Petitioner]’s and
Quinteros’s hands were shackled for about five minutes, their hands had never
been shackled in court and only Macias continued to be shackled. The court
then indicated it intended to instruct the jury that the fact Macias was shackled
was not evidence and must be disregarded in deciding the issues of the case.
5
6
7
8
9
10
11
12
13
14
15
16
Shortly thereafter, the jurors were brought back into the courtroom and
the court instructed them under CALCRIM No. 204 as follows:
17
18
“[T]he fact that physical restraints have been placed on
defendant Eduardo Macias is not evidence. Do not
speculate about the reason. You must completely
disregard this circumstance in deciding the issues in this
case. Do not consider it for any purpose or discuss it during
your deliberations.”
19
20
21
22
23
(ECF No. 16-14 at 42-45 (emphasis in original).)
24
///
25
///
26
27
28
22
The court explained that, although the three defendants had been “I-bolted
down,” there was “a skirt around the table so the jurors [could not] see that.”
47
16-cv-02133-WQH (RNB)
1
2.
Applicable Federal Law
2
During the guilt phase of a criminal trial “the Fifth and Fourteenth Amendments
3
prohibit the use of physical restraints visible to the jury absent a trial court determination,
4
in the exercise of its discretion, that they are justified by a state interest specific to a
5
particular trial. Such a determination may . . . take into account the factors that courts have
6
traditionally relied on in gauging potential security problems and the risk of escape at trial.”
7
Deck v. Missouri, 544 U.S. 622, 629 (2005); see also Cox v. Ayers, 613 F.3d 883, 890 (9th
8
Cir. 2010) (“The appearance of a defendant in shackles before a jury in either the guilt
9
phase or the penalty phase of a trial may constitute a violation of the defendant’s right to
10
due process.”).
11
The Supreme Court has recognized that the shackling of defendants in front of the
12
jury during the guilt phase “undermines the presumption of innocence and the related
13
fairness of the factfinding process,” “diminishes” the accused’s ability to community with
14
his lawyer, and “affront[s] the dignity and decorum of judicial proceedings that the judge
15
is seeking to uphold.” Deck, 544 U.S. at 630-32 (citations omitted). Therefore, although
16
it acknowledges there will be cases “where these perils of shackling are unavoidable,” . . .
17
“given their prejudicial effect, due process does not permit the use of visible restraints if
18
the trial court has not taken account of the circumstances of the particular case.” Id. at 632
19
(emphasis added); see also Larson v. Palmateer, 515 F.3d 1057, 1063 (9th Cir. 2008)
20
(noting the Supreme Court in Deck specifically rejected “post-hoc rationales” for imposing
21
security restraints; and finding that the petitioner’s “due process rights were violated when
22
the trial court failed to make a finding on the record justifying the necessity of physical
23
restraints, and that the absence of such a finding cannot be cured by the reviewing court’s
24
after-the-fact justifications.)
25
26
3.
Analysis
27
In order to demonstrate that his shackling at trial amounted to a constitutional
28
violation, Petitioner must demonstrate: (1) that he was physically restrained in the presence
48
16-cv-02133-WQH (RNB)
1
of the jury, (2) that the shackling was seen by the jury, (3) that the physical restraint was
2
not justified by state interests, and (4) that he suffered prejudice as a result. See Cox, 613
3
F.3d at 890 (citing Ghent v. Woodford, 279 F.3d 1121, 1132 (9th Cir. 2002)). In the context
4
of a habeas proceeding, the use of physical restraints visible to the jury prejudices a
5
defendant if it “had substantial and injurious effect or influence in determining the jury’s
6
verdict.” Cox, 613 F.3d at 891 (citing Brecht v. Abrahamson, 507 U.S. 619, 623 (1993));
7
see also Elmore v. Sinclair, 799 F.3d 1238, 1247 (9th Cir. 2015); Ghent, 279 F.3d at 1132
8
n.9.
9
Here, with respect to the first prong, the record reflects that on December 14, 2012,
10
Petitioner and his co-defendants were shackled in front of the jury for a brief period of time
11
when the trial judge excused the jury for the weekend just prior to closing arguments. (See
12
ECF No. 16-8 at 51-52; 60-61; ECF No. 16-9 at 7-8.) With respect to the second prong,
13
the record reflects that at least some members of the jury witnessed, or were exposed to,
14
Petitioner and his co-defendants being unbolted from the floor as defendants were removed
15
from the courtroom after the Macias incident. (See ECF No. 16-8 at 51-52; ECF No. 16-9
16
at 7-8.)
17
With respect to the third prong, the record reflects that prior to Petitioner appearing
18
before the jury in shackles, the trial court made no determination that the use of physical
19
restraints visible to the jury was justified by a state interest specific to the trial. In fact, the
20
trial court made the opposite determination, by making a finding prior to trial that
21
Petitioner’s leg shackles should be concealed from the jury, and that he should not appear
22
in front of the jury in handcuffs. (See ECF No. 16-8 at 51.) Even after the Macias incident,
23
the trial court made the explicit determination that Petitioner should appear without
24
handcuffs in front of the jury. (See id.)
25
When Petitioner moved for a mistrial on the basis that he appeared briefly in front
26
of the jury in shackles, the trial court still did not make any attempt to determine that the
27
shackles were required by a state interest specific to the trial. (ECF No. 16-9 at 7.) Rather,
28
the trial judge, in denying Petitioner’s motion for a mistrial, stated:
49
16-cv-02133-WQH (RNB)
1
2
THE COURT: And I’m going to deny that.
5
Both Mr. Quinteros and [Petitioner] were shackled in front of the jury
very briefly, and I don’t think that – he’s not going to be shackled now, and
neither Mr. Quinteros nor [Petitioner]. And if you want me to do a limiting
instruction, I’m happy to do a limiting instruction, saying that if they were
shackled up on that day, you’re not to consider that in your deliberations.
6
...
7
They’ve been I-bolted down, as we said earlier, but there’s a skirt
around the table so the jurors can’t see that.
3
4
8
9
10
11
12
13
14
15
16
17
Now, the jurors did see them get un I-bolted on Thursday, the 13th,
when we were taking them out, because we made the jurors and everybody
stay here, and we took the defendants out first, so maybe some of the jurors
may have seen their – them getting unchained from the ground, but that would
have been – from the floor, but that would have been the first time that the
jurors would have been aware of that.
And then they have never been shackled. Their hands have never been
shackled in court before, but for that one brief hearing, which lasted about five
minutes, their hands were shackled. That’s true. But they are not shackled
now. Only Mr. Macias is shackled, but I have an instruction that talks about
that, too.
18
[Petitioner’s Counsel]: Well, I rather not do the instruction, your Honor.
I think that it will bring more attention to it.
19
(Id. at 7-8.) Thus, at no time did the trial court make a determination that Petitioner’s
20
visible shackling in front of the jury was justified by an essential state interest.
21
On appeal, the Court of Appeal did not dispute that Petitioner appeared in front of
22
the jury in shackles without a prior determination that such an appearance was justified.
23
(See ECF No. 16-14 at 42-45, 49-50.). Rather, the Court of Appeal concluded that there
24
was a “manifest need” for courtroom security personnel to act as they did immediately after
25
the Macias incident, and that “the [trial] court’s decision to allow the jury to ‘very briefly’
26
see [Petitioner] and his codefendants with their hands restrained the next morning was
27
28
50
16-cv-02133-WQH (RNB)
1
similarly justified.”23 (See id. at 49-50.) In addition, after noting Petitioner only appeared
2
in shackles before the jury for a few minutes, and that this was the only time Petitioner was
3
shackled in front of the jury, the Court of Appeal concluded that because “prejudicial error
4
does not occur simply because the defendant was seen in shackles for only a brief period
5
inside the courtroom by one or more jurors, . . . the [trial] court did not prejudicially abuse
6
its discretion or violate [Petitioner’s] federal constitutional due process right to a fair trial
7
by an impartial jury.” (Id. at 50.)
8
On collateral review, a federal court may not overturn the state court’s decision
9
unless it applied its harmless error standard in an “objectively unreasonable” manner.
10
Davis v. Ayala, 135 S.Ct. 2187, 2198-99 (2017) (citing Mitchell v. Esparza, 540 U.S. 12,
11
18 (2003)); see also Fry v. Pliler, 551 U.S. 112, 119 (2007) (a “federal court may not award
12
habeas relief under § 2254 unless the harmlessness determination itself was
13
unreasonable”). A state court decision is not unreasonable if fairminded jurists could
14
disagree on its correctness. Id. at 2199 (internal quotations omitted) (citing Richter, 562
15
U.S. at 101). Petitioner must therefore show that the state court’s decision to reject his
16
claim “was so lacking in justification that there was an error well understood and
17
comprehended in existing law beyond any possibility for fairminded disagreement.” Id.
18
(citing Richter, 562 U.S. at 103).
19
In determining whether visible physical restraints prejudiced a defendant, the Ninth
20
Circuit has “considered the appearance and visibility of the restraining device, the nature
21
of the crime with which the defendant was charged and the strength of the state’s evidence
22
against the defendant.” Larson, 515 F.3d at 1064 (citing Dyas v. Poole, 317 F.3d 934, 937
23
24
25
26
27
28
23
Under the authorities cited above, the Court of Appeal’s failure to recognize
the trial court’s error in allowing the shackling without a prior determination of the
necessity for visible restraints arguably was an unreasonable application of Deck.
However, for the reasons discussed herein, Petitioner still is not entitled to habeas relief on
this claim because the Court of Appeal reasonably concluded there was no prejudicial error.
51
16-cv-02133-WQH (RNB)
1
(9th Cir. 2003)). “‘[T]he greater the intensity of shackling . . . the greater the extent of
2
prejudice,’ because elaborate physical restraints are more likely to create the appearance
3
of the defendant’s dangerousness.” Id. (quoting Spain v. Rushen, 883 F.2d 712, 722 (9th
4
Cir. 1989)). “Hence, physical restraints such as a waist chain, leg irons or handcuffs may
5
create a more prejudicial appearance than more unobtrusive forms of restraint.” Id. (citing
6
Spain, 883 F.2d at 722). In addition, if the defendant is charged with a violent crime, then
7
the risk of prejudice increases, because shackling “essentially brand[s][him] as having a
8
violent nature.” Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir. 1999). Concerns about
9
prejudice may be mitigated, however, if the state’s evidence against the defendant was
10
“overwhelming,” or if the shackling is only for a brief period of time. See Dyas, 317 F.3d
11
at 937; Elmore, 799 at 1248; see also Cox, 613 F.3d at 891 (“[W]e have held that the
12
unconstitutional shackling of a defendant results in prejudice only if the evidence of guilt
13
is not ‘overwhelming.’”).
14
Here, Petitioner’s hands appeared shackled before the jury for a very brief period of
15
time, only minutes, after his co-defendant slashed his own counsel. (See ECF No. 16-2 at
16
98.) Otherwise, his hands were not shackled throughout the trial. In addition, although the
17
jurors were exposed to Petitioner being unbolted from the floor after the Macias incident,
18
it is unclear the extent to which the jurors saw or were even aware of the fact given all that
19
was going on. The trial court and the defendants also made the decision not to raise or
20
instruct the jury on the issue so as not to bring attention to it. Taken together, the Court
21
finds these factors weigh against a finding of prejudice.
22
Weighing in favor of a finding of prejudice is the fact Petitioner was charged with
23
conspiracy to commit murder, attempted murder, and assault by means likely to cause great
24
bodily harm, which are violent crimes.
25
presumption of innocence because it suggested to the jury that he is a dangerous person
26
who must be separated from society. (Trav. at 22.) Mitigating this impact, however, is the
27
fact the jury was fully aware Petitioner had been in prison, was a validated member of the
28
Mexican Mafia, and was on trial for attempted murder while in prison. Thus, the fact that
Petitioner argues the shackling eroded his
52
16-cv-02133-WQH (RNB)
1
Petitioner was restrained, though not visibly, during trial, and briefly shackled as the trial
2
court sorted through the Macias incident, could easily be viewed as a practical security
3
measure given Petitioner’s history rather than an indication of guilt.
4
In addition, although the Court does not necessarily find that the state’s evidence
5
against Petitioner was overwhelming on all counts, there was substantial evidence against
6
Petitioner, and the jury only deliberated for the afternoon before coming back and finding
7
Petitioner guilty on all counts. (See ECF No. 16-2 at 103-04; ECF No. 16-9 at 199-200.)
8
Lastly, as noted by the Court of Appeal, the jury found Quinteros not guilty on two counts,
9
even though the jury also saw Quinteros shackled and bolted to the floor during the trial.
10
This supports the conclusion that the jurors remained impartial and the outcome was not
11
influenced by Petitioner’s appearance in shackles.
12
Based on the foregoing, this Court finds the Court of Appeal did not apply its
13
harmless error standard in an objectively unreasonable manner when it determined there
14
was no prejudicial error. Moreover, the Court does not have “grave doubt” that Petitioner’s
15
brief appearance wearing shackles and leg restraints in front of the jury had a “substantial
16
and injurious effect or influence in determining the jury’s verdict.” See Davis, 135 S.Ct.
17
at 2197-98 (citing Brecht, 507 U.S. at 637; O’Neal v. McAninch, 513 U.S. 432, 436 (1995))
18
(“In a collateral proceeding . . . relief is proper only if the federal court has grave doubt
19
about whether a trial error of federal law had substantial and injurious effect or influence
20
in determining the jury’s verdict.”)
21
Accordingly, Petitioner is not entitled to habeas relief on Ground 3.
22
23
24
C.
Habeas Relief is Not Warranted with Respect to Petitioner’s Cumulative
Error Claim.
25
Petitioner appears to assert a cumulative error claim in his Petition. (See Pet. at 13-
26
14.) As Respondent points out, Petitioner never presented this claim to the California
27
Supreme Court for consideration, and therefore, it is not exhausted. See O’Sullivan v.
28
Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the state courts one full
53
16-cv-02133-WQH (RNB)
1
opportunity to resolve any constitutional issues by invoking one complete round of the
2
State’s established appellate review process.”). However, without waiving this argument,
3
Respondent asserts the claim should be rejected as meritless. (ECF No. 15-1 at 25-26.)
4
The AEDPA requires a petitioner to “exhaust[] the remedies available in the courts
5
of the State” before he may obtain federal habeas relief. See 28 U.S.C. § 2254(b)(1)(A);
6
Alfaro v. Johnson, 862 F.3d 1176, 1180 (9th Cir. 2017). The exhaustion requirement is
7
rooted in the principle of comity, and “reduces friction between the state and federal court
8
systems by avoiding the unseemliness of a federal district court’s overturning a state court
9
conviction without the state courts having had an opportunity to correct the constitutional
10
violation in the first instance.” O’Sullivan, 526 U.S. at 845 (internal alterations and
11
quotation marks omitted).
12
exhausting a given claim where (1) “there is an absence of available State corrective
13
process,” or (2) “circumstances exist that render such process ineffective to protect the
14
rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). Neither of these exceptions to
15
AEDPA’s exhaustion requirement applies in this case.
Nevertheless, a habeas petitioner may be excused from
16
“[A] district court is permitted to stay a mixed petition—a petition containing both
17
exhausted and unexhausted claims—in ‘limited circumstances,’ so that a petitioner may
18
present his unexhausted claims to the state court without losing his right to federal habeas
19
review due to the relevant one-year statute of limitations.” Wooten v. Kirkland, 540 F.3d
20
1019, 1023 (9th Cir. 2008) (citing Rhines v. Weber, 544 U.S. 269, 273-75, 277-78 (2005)).
21
However, “a district court must stay a mixed petition only if: (1) the petitioner has ‘good
22
cause’ for his failure to exhaust his claims in state court; (2) the unexhausted claims are
23
potentially meritorious; and (3) there is no indication that the petitioner intentionally
24
engaged in dilatory litigation tactics.” Id. (citing Rhines, 544 U.S. at 278).
25
The Court finds that Petitioner has not established good cause for his failure to
26
exhaust his cumulative error claim in state court. Moreover, it is unclear whether Petitioner
27
intends to assert this claim. In his Petition, Petitioner does not separate out this claim, and
28
in his Traverse, he does not address it at all. As such, the Court need not address the
54
16-cv-02133-WQH (RNB)
1
remaining two factors. See Wooten, 540 F.3d at 1023.
2
Regardless, the Court finds Petitioner is not entitled to habeas relief on a cumulative
3
error theory. The Supreme Court recognizes the possibility that the combined effect of
4
discrete trial errors, when none of them individually warrants relief, can be found to have
5
had a substantial and injurious effect on the jury’s verdict. See Parle v. Runnels, 505 F.3d
6
922, 927 (9th Cir. 2007) (“The Supreme Court has clearly established that the combined
7
effect of multiple trial court errors violates due process where it renders the resulting
8
criminal trial fundamentally unfair.”); Phillips v. Woodford, 267 F.3d 966, 985-86 (9th Cir.
9
2001) (“We consider the cumulative prejudicial effect of multiple trial errors in
10
determining whether relief is warranted.”), citing Mak v. Blodgett, 970 F.2d 614, 622 (9th
11
Cir. 1992) (per curiam) (holding “significant errors occurred that, considered cumulatively,
12
compel affirmance of the district court’s grant of habeas corpus,” citing Circuit cases
13
recognizing the cumulative impact of multiple deficiencies); see also Alcala v. Woodford,
14
334 F.3d 862, 882-83 (9th Cir. 2003) (holding “district court did not err in finding that the
15
combined prejudice of the multiple errors committed in this case deprived [petitioner] of a
16
fundamentally fair trial and constitutes a separate and independent basis for granting his
17
petition.”).
18
Because the only possible trial court error in this case was the trial court’s failure to
19
make a prior determination of the need for visible shackling, there was no prejudice here
20
to accumulate. See, e.g., Davis v. Woodford, 384 F.3d 628, 654 (9th Cir. 2004); Karis v.
21
Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003); see also
22
Jones v. Stotts, 59 F.3d 143, 147 (10th Cir. 1995) (noting that cumulative-error analysis
23
evaluates only effect of matters determined to be error, not cumulative effect of non-errors).
24
“One error is not cumulative error.” United States v. Sager, 227 F.3d 1138, 1149 (9th Cir.
25
2000). Therefore, this Court finds Petitioner cannot satisfy the standards for habeas relief
26
based on a theory of cumulative error. Petitioner has not established that two or more
27
substantial errors occurred in his case which, considered in combination, could overcome
28
their failures individually to satisfy the substantial and injurious effect on the outcome of
55
16-cv-02133-WQH (RNB)
1
his trial standard. See Parle, 505 F.3d. at 927.
2
3
RECOMMENDATION
4
IT IS THEREFORE RECOMMENDED that the District Judge issue an Order (1)
5
approving and adopting this Report and Recommendation; and (2) directing that judgment
6
be entered denying the Petition and dismissing this action with prejudice.
7
Any party having objections to the Court’s proposed findings and recommendations
8
shall serve and file specific written objections within fourteen (14) days after being served
9
with a copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The
10
objections should be captioned “Objections to Report and Recommendation.” A party may
11
respond to the other party’s objections within fourteen (14) days after being served with
12
a copy of the objections. See id. The failure to object within the time limit specified shall
13
be deemed a consent to any proposed findings of fact.
14
The parties are advised that Rule 11 provides that in habeas corpus matters pursuant
15
to 28 U.S.C. § 2254, the District Judge must issue or deny a Certificate of Appealability
16
when a final order adverse to the applicant is entered. The parties may wish to take this
17
Rule into consideration at the time they file any Objections to the Report and
18
Recommendation.
19
The Report and Recommendation of a Magistrate Judge is not a final appealable
20
order. Any Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1)
21
should not be filed until entry of a judgment and/or order by the District Judge.
22
23
24
25
IT IS SO ORDERED.
Dated: April 30, 2018
_________________________
HON. ROBERT N. BLOCK
United States Magistrate Judge
26
27
28
56
16-cv-02133-WQH (RNB)
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