Cruz v. Vasquez

Filing 24

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus, filed by David Christopher Cruz. The Court DENIES Petitioner's request for an evidentiary hearing. In addition, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) a pproving and adopting this Report and Recommendation, and (2) directing that Judgment be entered DENYING the Petition. Objections to R&R due by 9/11/2017. Replies due by 10/2/2017. Signed by Magistrate Judge Barbara Lynn Major on 8/14/2017.(All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16cv3106-AJB (BLM)

DAVID CHRISTOPHER CRUZ,

(1) REPORT AND RECOMMENDATION
RE DENIAL OF PETITION FOR WRIT
OF HABEAS CORPUS

Petitioner,

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v.

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PATRICIA VASQUEZ, Warden,

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(2) ORDER DENYING REQUEST FOR
EVIDENTIARY HEARING

Respondent.

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I.

INTRODUCTION

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Petitioner David Christopher Cruz (“Petitioner” or “Cruz”), a state prisoner proceeding pro

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se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his

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San Diego Superior Court conviction in case number SCE309627. (Pet. at 1, ECF No. 1 “Pet.”)1

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Cruz also requests an evidentiary hearing. (Id.) The Court has reviewed the Petition, the Answer

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and Memorandum of Points and Authorities in Support of the Answer, the Traverse, the

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lodgments, and all the supporting documents submitted by both parties.

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discussed below, the Court DENIES the request for an evidentiary hearing and RECOMMENDS

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the Petition be DENIED.

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For the reasons

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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 system.
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II.

FACTUAL BACKGROUND

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This Court gives deference to state court findings of fact and presumes them to be

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correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing

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evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36

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(1992) (holding findings of historical fact, including inferences properly drawn from those facts,

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are entitled to statutory presumption of correctness). The following facts are taken from the

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California Court of Appeal opinion:

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In early 2011, Cruz began dating Sharika Summers. Shortly thereafter,
Cruz offered to care for Summers’s infant son, Cordero Cisneros, Jr., so Summers
could save money on daycare. (Undesignated date references are to the year
2011.) In March, Summers noticed bruises on Cisneros on multiple occasions.
Summers wondered if Cruz was hurting Cisneros, but she dismissed the thought
because Cruz acted liked everything was fine.
According to Summers, Cruz treated Cisneros like his own son. Later that
month, when Cisneros was approximately seven months old, Summers’s neighbor
saw Cruz outside holding Cisneros. Cruz was panicking and asking for help. The
neighbor brought Cruz and Cisneros into his apartment and called 911. The
neighbor’s mother began performing CPR on Cisneros who was not breathing.
Cisneros had swelling in the arms, chest and head area. He also had black, purple
and green bruises on his legs, face, and chest.
San Diego County Sheriff’s Deputy Damon Chandler arrived at the
neighbor’s apartment before paramedics. Cruz was standing outside the
apartment and told Deputy Chandler, “‘Please help me. I don’t know what’s wrong
with my baby.’” Deputy Chandler observed that Cisneros had “purple blotches” on
his face and an abrasion under his chin. Deputy Chandler could not find a pulse
on Cisneros and administered CPR until the paramedics arrived.
Deputy Chandler tried to obtain information from Cruz regarding what
happened to Cisneros. Cruz said he had given Cisneros formula, some solid baby
food, and then put him down for a nap. When Cruz checked on Cisneros two
hours later, Cisneros was unresponsive. Cruz stated he administered CPR for
approximately 15 minutes.
San Diego County Sheriff’s Deputy Janine Alioto also responded to the
scene. When she arrived, Deputy Alioto heard Cruz say, “‘It’s my fault. It’s my
fault.’” Cruz told her that while he was babysitting Cisneros, he heard a loud crash
like shelves falling. Cruz further said that when he went into Cisneros’s room,
Cisneros was not moving.
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While she was at work, Summers received a call about her son. She rushed
home to see what happened. When she got there, Cruz ran up to her, got down
on his knees, and said, “‘I’m sorry, I’m sorry, I’m sorry.’” Cruz told Summers that
he was playing a video game in the living room when he heard a crash in Cisneros’s
room. Cruz stated that when he went in Cisneros’s room, Cisneros was lying on
his side.

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Summers saw Cisneros at the hospital. Cisneros had a large dark mark on
his face like somebody had hit him. A doctor informed Summers that Cisneros
was brain dead and could not be saved.

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That same night, deputies arrested Cruz. San Diego County Sheriff’s
Detective Donnie Sossaman interviewed Cruz at the Sheriff’s station. Cruz stated
that he got angry when Cisneros would not stop fussing. Cruz snatched Cisneros
up and shook him. At that point, Cruz got scared because Cisneros’s head snapped
back. Cruz also stated that he had hit Cisneros in the stomach, causing Cisneros
to fall off the couch and onto the floor. Cruz put Cisneros in his crib and noticed
that Cisneros would not sit up. Thus, Cruz attempted to do CPR on Cisneros and
slapped him to try to revive him. Cruz admitted to getting mad and shaking
Cisneros on three occasions.

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An autopsy revealed that Cisneros had numerous bruises and abrasions on
his face and body. He had multiple rib fractures that had occurred at different
times and factures on the bones between his elbow and wrist. Cisneros also had
multiple hemorrhages on the tissues below the surface of his scalp.

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The medical examiner classified Cisneros’s death as a homicide. He stated
the cause of death was brain damage resulting from a lack of oxygen and blood
flow to the brain caused by head injury. A defense expert testified that it was
possible that Cisneros died from an “ear infection that either spread to the blood
and developed sepsis or caused thrombosis of the big vein in the head.”

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(Lodgment No. 6 at 2-4.)

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III.

PROCEDURAL BACKGROUND

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On January 4, 2012, Petitioner was charged by information with assault on a child by

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means of force likely to produce great bodily injury resulting in death (Cal. Penal Code §

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273ab(a) (count one) and murder (Cal. Penal Code § 187(a) (count two). (Lodgment No. 1,

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vol. 1 at 5-6.)

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On October 9, 2013, a jury found Cruz guilty on both counts. (Lodgment No. 1, vol. 2 at

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307-08; Lodgment No. 2, vol. 5 at 961-62.) On November 22, 2013, the trial court sentenced

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Cruz to a prison term of 25 years-to-life.2 (Lodgment No. 1, vol. 2 at 368, 427-28; Lodgment

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No. 2, vol. 6 at 990-91.)

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Cruz appealed his conviction to the California Court of Appeal, arguing (1) the trial court

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erred in denying his request to represent himself; (2) California Penal Code section 237ab(a)

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improperly omits a mens rea element; and (3) section 237ab(a) violates the Equal Protection

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Clause and the Due Process Clause. (See Lodgment 3.) On May 20, 2015, the Court of Appeal

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denied Cruz’s claims and affirmed his conviction in a reasoned opinion. (See Lodgment No. 6.)

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On June 8, 2015, Cruz filed a petition for review for in the California Supreme Court. (Lodgment

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No. 7.) The court denied the petition on July 29, 2015 without comment or citation. (Lodgment

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No. 8.)

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Cruz then filed a petition for writ of habeas corpus with the San Diego Superior Court on

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July 1, 2016. (Lodgment No. 9.) In it, Petitioner argued (1) defense counsel had coerced him

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not to testify in his own defense, in violation of the Sixth Amendment, (2) the prosecutor used

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evidence to mislead the jury, (3) the trial was unfair because Cruz’s initial interview with a

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detective was not presented to the jury and the evidence that was presented was improperly

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prejudicial, and (4) the trial court improperly denied his request to represent himself. (See id.)

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On July 12, 2016, the trial court denied the petition in a short opinion. (Lodgment No. 10.)

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On December 16, 2016, Cruz filed the instant federal petition for writ of habeas corpus

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in this Court. (ECF No. 1.) Respondent filed an Answer and Memorandum of Points and

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Authorities on March 6, 2017. (ECF No. 12.) On March 27, 2017, Petitioner filed a Traverse.

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(ECF No. 15.) Cruz filed a supplemental Traverse on May 26, 2017. (ECF No. 19.) Respondent

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submitted Supplemental Lodgments under seal on June 29, 2017. (ECF No. 23.)

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The trial court sentenced Cruz to 25 years-to-life on count one and 15 years-to-life on count two. The
court stayed the sentence on count two pursuant to Cal. Penal Code section 654. (See Lodgment No. 1,
vol. 2 at 368, 427-28.)

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IV.

STANDARD OF REVIEW

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Cruz’s Petition is governed by the provisions of the Antiterrorism and Effective Death

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Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a

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habeas petition will not be granted unless the adjudication: (1) resulted in a decision that was

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contrary to, or involved an unreasonable application of clearly established federal law; or (2)

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resulted in a decision that was based on an unreasonable determination of the facts in light of

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the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537

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U.S. 3, 8 (2002).

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A federal court is not called upon to decide whether it agrees with the state court’s

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determination; rather, the court applies an extraordinarily deferential review, inquiring only

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whether the state court’s decision was objectively unreasonable. See Yarborough v. Gentry,

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540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In order to grant

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relief under § 2254(d)(2), a federal court “must be convinced that an appellate panel, applying

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the normal standards of appellate review, could not reasonably conclude that the finding is

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supported by the record.” See Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).

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A federal habeas court may grant relief under the “contrary to” clause if the state court

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applied a rule different from the governing law set forth in Supreme Court cases, or if it decided

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a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell

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v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable

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application” clause if the state court correctly identified the governing legal principle from

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Supreme Court decisions but unreasonably applied those decisions to the facts of a particular

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case. Id. Additionally, the “unreasonable application” clause requires that the state court

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decision be more than incorrect or erroneous; to warrant habeas relief, the state court’s

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application of clearly established federal law must be “objectively unreasonable.” See Lockyer

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v. Andrade, 538 U.S. 63, 75 (2003).

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

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

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also be unreasonable.”

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

Williams v. Taylor, 529 U.S. 362, 411 (2000).
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“A state court’s

16cv3106 AJB(BLM)

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determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded

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

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562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

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Where there is no reasoned decision from the state’s highest court, the Court “looks

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through” to the underlying appellate court decision and presumes it provides the basis for the

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higher court’s denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991).

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If the dispositive state court order does not “furnish a basis for its reasoning,” federal habeas

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courts must conduct an independent review of the record to determine whether the state court’s

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decision is contrary to, or an unreasonable application of, clearly established Supreme Court

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law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by

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Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

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However, a state court need not cite Supreme Court precedent when resolving a habeas corpus

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claim. See Early, 537 U.S. at 8. “[S]o long as neither the reasoning nor the result of the state-

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court decision contradicts [Supreme Court precedent,]” the state court decision will not be

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“contrary to” clearly established federal law. Id. Clearly established federal law, for purposes

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of § 2254(d), means “the governing principle or principles set forth by the Supreme Court at the

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time the state court renders its decision.” Andrade, 538 U.S. at 72.

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V.

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DISCUSSION
Cruz raises five claims in his Petition, however, because some of the claims overlap or

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are redundant, the Court has grouped them as two general claims.

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Petitioner contends his conviction under California Penal Code section 243ab(a) was a violation

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of his due process rights because the statute fails to set forth a sufficient mens rea element.

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(Pet. at 6, ECF No. 1.) In claims two, four and five, Petitioner argues his Sixth Amendment

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rights were violated when the trial court denied his request to represent himself. (Id. at 6-7.)

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Cruz also asks for an evidentiary hearing. (Id. at 1.) Respondent argues both claims must be

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denied because Petitioner has failed to establish the state court’s decision was contrary to, or

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an unreasonable application of, clearly established law. (See generally, P. & A. in Supp. Answer,

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ECF No. 10-1.)
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In claims one and three,

16cv3106 AJB(BLM)

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A.

California Penal Code § 273ab(a)

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In claims one and three, Cruz argues that California Penal Code section 273ab(a) lacked

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a sufficient “mens rea” requirement, in violation of the Due Process clause. He asserts that due

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process requires there be a mens rea that “bears some relationship to the penalty.” (Pet. at 6,

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ECF No. 1.)

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Cruz raised this claim in his petition for review to the California Supreme Court and it was

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denied without comment or citation. (Lodgment Nos. 7 & 8.) This Court therefore looks through

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to the last reasoned decision to address the claim – that of the California Court of Appeal. See

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Ylst, 501 U.S. at 805-06. The appellate court denied that claim, stating:

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Cruz argues his assault conviction violates due process because the offense
does not have a requirement that the defendant know his act could result in death
and thus it is an improper strict liability offense. In a related argument, he claims
the trial court did not properly instruct the jury because CALCRIM No. 820, the
instruction on assault on a child likely to produce great bodily injury resulting in
death, did not require the jury to find that he knew or a reasonable person would
have known his act was likely to result in death.
Cruz was convicted of assault on a child with force likely to produce great
bodily injury resulting in death in violation of Penal Code, section 237ab,
subdivision (a) (section 237ab). That statute provides the following: “Any person
who, having the care or custody of a child who is under eight years of age, assaults
the child by means of force that to a reasonable person would be likely to produce
great bodily injury, resulting in the child’s death, shall be punished by
imprisonment in the state prison for 25 years to life.” Thus, a violation of section
237ab requires proof that (1) a person had the care or custody of a child under
eight years of age; (2) that person committed an assault upon the child; (3) the
assault was committed by means of force that to a reasonable person would be
likely to produce great bodily injury; and (4) the assault resulted in the death of
the child. (People v. Albritton (1998) 67 Cal.App.4th 647, 655 (Albritton);
CALCRIM No. 820.)
In Albritton, supra, 67 Cal.App.4th 647, this Court rejected the same
argument that Cruz makes here, namely that section 237ab is an unconstitutional
strict liability offense. We explained that “[s]ection 273ab is a general intent crime.
The mens rea for the crime is willfully assaulting a child under eight years of age
with force that objectively is likely to result in great bodily injury -- that is, the
assault must be intentional.” (Albritton, at p. 658.) We concluded that in order
to violate section 273ab, “[o]nly a general criminal intent to commit the proscribed
act -- assault on a child under eight years old with force that objectively is likely
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to result in great bodily injury--is required. Whether the intended act in its nature
is one likely to produce great bodily harm is a question for the jury. It is not
required that the actor intend to produce great bodily injury or death, nor is it
required that he know or should know the act is intrinsically capable of causing
such consequences.” (Albritton, at p. 659.)
Cruz asserts that due process requires the offense have a mens rea element
associated with the death because the accused faces the same 25 years to life
penalty as first degree murder. It is “immaterial that the punishment for a violation
of section 273ab is the same as first degree murder. The Legislature exercised its
prerogative in selecting the range of punishment, and there is no principle of law
that precludes the same punishment for different crimes.” (People v. Norman
(2003) 109 Cal.App.4th 221, 228.)
Lastly, we reject Cruz’s instructional error claim. He contends the jury
instructions were incomplete because CALCRIM No. 820 did not include a
requirement that he knew or a reasonable person would have known his act would
result in death. As we explained, a violation of section 237ab does not require
that the defendant knew his act would result in death. CALCRIM No. 820 properly
instructs the jury that the People must prove the defendant committed the assault
by means of force that to a reasonable person would be likely to produce great
bodily injury. In that regard, the instruction requires the jury to find “[w]hen the
defendant acted, he was aware of facts that would lead a reasonable person to
realize that his act by its nature would directly and probably result in great bodily
injury to the child.” (CALCRIM No. 820.) No further knowledge element was
required. Thus, Cruz’s instructional error claim fails.
(Lodgment No. 6 at 10-13.)

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First, to the extent Cruz contends his conviction under California Penal Code section

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273ab(a) amounted to a violation of California state law, he fails to state a cognizable claim on

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federal habeas. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (finding issues regarding
state law are not cognizable on federal habeas corpus review and it is not the province of the
federal habeas court to re-examine state-court determinations on state-law questions).
To the extent Cruz argues section 273ab(a) runs afoul of the Due Process Clause, his
claim fails.

Under California law, to prove assault against a child resulting in death, the

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prosecutor must introduce evidence satisfying the following four elements: “(1) [a] person had

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the care and custody of a child under eight years of age; (2) [t]hat person committed an assault

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upon the child; (3) [t]he assault was committed by means of force that to a reasonable person

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would be likely to produce great bodily injury; and (4) [t]he assault resulted in the death of the

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child.” People v. Stewart, 77 Cal. App. 4th 785, 794 (Cal. Ct. App. 2000) (internal quotations
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omitted); People v. Wyatt, 48 Cal. 4th 776, 780 (Cal. 2010).
Contrary to Petitioner’s assertion, section 273ab(a) contains a mens rea element. As the
state court noted, the statute requires general intent – specifically, intent to commit assault on
a child under the age of eight with use of force objectively likely to produce great bodily injury.

People v. Albritton, 67 Cal. App. 4th 647, 658-59 (Cal. Ct. App. 1998). Under section 273ab a

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defendant “need not know or be subjectively aware that his act is capable of causing great

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bodily injury. This means the requisite mens rea may be found even when the defendant

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honestly believes his act is not likely to result in such injury.” Wyatt, 48 Cal.4th at 781 (citations

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omitted). On habeas, federal courts must defer to a state court’s interpretation of state law,

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except in the “highly unusual case in which the ‘interpretation is clearly untenable and amounts

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to a subterfuge to avoid federal review’ of a constitutional violation.” Butler v. Curry, 528 F.3d

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624, 642 (9th Cir. 2008) (quoting Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir.1982); see

Mullaney v. Wilbur, 421 U.S. 684, 691 n. 11 (1975). Here, the state court’s interpretation of
section 273ab and its mens rea requirement is not unreasonable.3
Petitioner also argues his right to due process was violated because section 273ab allows
imposition of the same punishment as that for first degree murder (25 years to life) without

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proof of the same mens rea required to support a murder conviction. (See Pet. at 5-6, 12-17,

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ECF No. 1.) State legislatures have broad authority to define crimes and impose punishments.

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“The elements of a state crime are determined by state law, and state legislatures have broad

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discretion to define the elements of a crime.” Medley v. Runnels, 506 F.3d 857, 865 (9th Cir.

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2007) (citing Patterson v. New York, 432 U.S. 197, 208-09 (1977)); see also, e.g., Brecht v.

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Abrahamson, 507 U.S. 619, 635 (1993) (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982)). The
Due Process Clause prevents only imposition of punishments based on “arbitrary” distinctions.

See Chapman v. United States, 500 U.S. 453, 465 (1991).
When a State’s power to define criminal conduct is challenged under the Due Process
Clause, courts consider only whether the law “offends some principle of justice so rooted in the

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Even if the statute did not contain a mens rea element, Cruz would not be entitled to habeas relief.
“There is no clearly established Supreme Court law defining the precise criteria courts should employ in
determining which crimes constitutionally require a mental element and which crimes do not.” Hujazi v.
Superior Court of California, 890 F.Supp. 2d 1226, 1237 (C.D. Cal. 2012) (citing Morissette v. United
States, 342 U.S. 246, 260 (1952)); see also Powell v. State of Texas, 392 U.S. 514, 535 (1968).
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traditions and conscience of our people as to be ranked as fundamental.” Patterson, 432 U.S.
at 202 (internal quotation marks omitted).

Montana v. Egelhoff, 518 U.S. 37, 58 (1996)

(Ginsburg, J., concurring). Here, establishing the same penalty for assault on a child resulting
in death as that of first degree murder does not amount to an “arbitrary distinction,” nor does
it offend fundamental principles of justice. As such, Cruz has failed to establish a due process
violation.
In sum, the California Court of Appeal’s denial of the claim was neither contrary to, nor

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an unreasonable application of controlling federal authority.

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Williams, 529 U.S. at 407-08. The Court RECOMMENDS grounds one and three be DENIED.

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B.

See 28 U.S.C. § 2254(d)(1),

Faretta Motion

In grounds two, four and five, Cruz argues his Sixth Amendment rights were violated
when the trial court denied his request to represent himself. (See Pet. at 5-6, 17-21, ECF No.
1.) Cruz raised this issue in his petition for review to the California Supreme Court, which was
denied without comment or citation. (See Lodgment Nos. 7 & 8.) As such, this Court looks
through to the opinion of the California Court of Appeal, the last reasoned state court decision
to address this issue. See Ylst, 501 U.S. at 805-06. The appellate court denied the claim,
stating:
A.

Facts

One month before trial, defense counsel informed the court that Cruz
wished to bring a motion for substitution of appointed counsel under People v.
Marsden (1970) 2 Cal.3d 118 (Marsden). The trial court conducted a Marsden
hearing outside the presence of the prosecutor. Cruz complained that defense
counsel refused to call a character witness and continuously told him to take a
plea deal. Cruz thought defense counsel was not acting in Cruz’s best interest.
When the court inquired if Cruz had other complaints, Cruz responded, “There’s
not really much I can say to deter your mind. It seems like your mind is set up
that I have a pretty good lawyer, even though I feel otherwise.”
Defense counsel responded to Cruz’s allegations, explaining that he
informed Cruz of the tactical dangers of opening the door to negative character
evidence. Defense counsel indicated he conferred with multiple colleagues who
all agreed that the defense should not open the door to character evidence.
Defense counsel also stated he continued to discuss the possibility of a plea
agreement with Cruz because of the mounting evidence against Cruz. Counsel
believed a plea deal was in Cruz’s best interest based on the charges and evidence
in the case.
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The trial court denied the Marsden motion, explaining that defense counsel
was doing a great job and using “Herculean efforts” to represent Cruz. The court
stated it did not find any shortcomings in defense counsel’s advice to Cruz. Shortly
thereafter, defense counsel informed the court that Cruz wanted to address the
court about representing himself. Defense counsel stated it was the first time Cruz
had made the request.
The court instructed Cruz to fill out an “Acknowledgement Regarding SelfRepresentation and Waiver of Right to Counsel” pursuant to People v. Lopez
(1977) 71 Cal.App.3d 568 (Lopez waiver). Cruz completed the Lopez waiver,
stating that he wanted to represent himself and acknowledging the dangers and
disadvantages of self-representation.
After receiving Cruz’s Lopez waiver, the court confirmed with Cruz that this
was the first time he was seeking to represent himself and commented the case
was two and a half years old. The court then inquired whether Cruz would be
ready to proceed with trial at the scheduled date, which was in approximately one
month. Cruz stated that he would not be ready to proceed and needed time to
research. Cruz agreed with the court that they would be “starting from scratch
timewise.”
The court denied Cruz’s Faretta motion, stating, “[N]ow, virtually at the last
minute, and certainly comparatively the last minute, the defendant is making a
request that he’s never made before and he’s making it immediately after his
request to relieve his attorney was denied which causes [the court] to question
whether or not this is an unequivocal request. [The court does not] think that it
is. [The court] think[s] it’s a result of ‘if I can’t get rid of this attorney, then I’ll
represent myself.’ That’s not unequivocal.” The court also found the request was
not timely made because the case was two and a half years old, Cruz would not
be ready for trial on the date set and Cruz required a continuance of undetermined
length.
B.

Analysis

Cruz contends the trial court erred in denying his pretrial Faretta motion.
We disagree. A criminal defendant has the right under the Sixth Amendment of
the federal Constitution to conduct his or her own defense. (Faretta, supra, 422
U.S. at p. 819; People v. Jenkins (2000) 22 Cal.4th 900, 959.) Accordingly, when
a defendant voluntarily and intelligently makes a timely, unequivocal assertion of
the right to proceed pro se, the court must honor that request regardless of how
unwise the decision may seem. (People v. Windham (1977) 19 Cal.3d 121, 127128.) The right to self-representation must be invoked within a reasonable time
before the commencement of trial and the trial court should consider the quality
of counsel’s representation of the defendant, the defendant’s prior proclivity to
substitute counsel, the reasons for the request, the length and stage of the
proceedings, and the disruption or delay that might reasonably be expected to
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follow the granting of such a motion. (People v. Marshall (1996) 13 Cal.4th 799,
827.)
To determine whether the defendant invoked the right to selfrepresentation, we review the entire record, including facts following the Faretta
ruling, de novo. Even if the trial court denied the request for an improper reason,
if the record as a whole establishes the request would properly be denied on other
grounds, we will nonetheless affirm the judgment. (People v. Dent (2003) 30
Cal.4th 213, 218.)
1.

Timelineness Requirement

A Faretta motion is timely if made “within a reasonable time prior to the
commencement of trial.” (People v. Windham, supra, 19 Cal.3d at p. 128; People
v. Clark (1992) 3 Cal.4th 41, 98-99.) In California, there is no bright-line test for
determining the timeliness of a Faretta motion. (People v. Clark, at p. 99.)
However, courts have held that Faretta motions with a request for continuance
were untimely when made shortly before commencement of trial, subject to the
court’s discretion. (People v. Frierson (1991) 53 Cal.3d 730, 740, 742; People v.
Burton (1989) 48 Cal.3d 843, 853; People v. Moore (1988) 47 Cal.3d 63, 78-79;
People v. Scott (2001) 91 Cal.App.4th 1197, 1205; People v. Hill (1983) 148
Cal.App.3d 744, 757; People v. Ruiz (1983) 142 Cal.App.3d 780, 784-791; People
v. Morgan (1980) 101 Cal.App.3d 523, 531; People v. Hall (1978) 87 Cal.App.3d
125, 132.)
Here, Cruz made his Faretta motion approximately one month prior to trial,
an amount of time that was certainly not untimely on its face. However, Cruz
stated that he would not be ready to start trial in one month as he needed time to
research. He did not offer the court a specific date when he would be ready and
agreed with the court that they would be “starting from scratch timewise.” At that
point, the case was two and a half years old. On this record, we conclude the trial
court did not err in denying the Faretta motion as granting it would have interfered
with the orderly administration of justice.
2.

Unequivocal Requirement

The requirement that a Faretta motion be unequivocal “is necessary in order
to protect the courts against clever defendants who attempt to build reversible
error into the record by making an equivocal request for self-representation.”
(People v. Williams (2003) 110 Cal.App.4th 1577, 1586.) To determine whether a
request was unequivocal, a reviewing court should examine a defendant’s words
and conduct to decide whether that defendant truly desired to give up counsel and
represent himself or herself. (People v. Marshall (1997) 15 Cal.4th 1, 25-26
(Marshall).) “Equivocation of the right of self-representation may occur where the
defendant tries to manipulate the proceedings by switching between requests for
counsel and for self-representation, or where such actions are the product of whim
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or frustration.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.)
A Faretta motion made “in passing anger or frustration” or “to frustrate the
orderly administration of justice” is not unequivocal and may be denied. (Marshall,
supra, 15 Cal.4th at p. 23.) Moreover, a Faretta motion made immediately
following an unsuccessful Marsden motion may be seen as equivocal if the
circumstances show the defendant’s true desire was actually different
representation and not self-representation. (See People v. Valdez (2004) 32
Cal.4th 73, 99 [defendant’s single reference to right of self-representation, made
immediately following denial of Marsden motion, supports conclusion that
defendant did not make an unequivocal Faretta motion]; People v. Scott (2001)
91 Cal.App.4th 1197, 1203-1206 [Faretta motion was equivocal where defendant
made the motion immediately after the trial court denied his Marsden motion and
defendant’s comments suggested he made the motion because the court would
not replace his attorney with a different public defender].)
Here, in light of the totality of the circumstances, Cruz’s Faretta motion
could be seen as equivocal. He sought self-representation after the trial court
denied his Marsden motion to substitute appointed counsel. It was clear that Cruz
was frustrated with the court during the Marsden hearing. Even before the court
made its ruling, Cruz was perturbed, commenting that the court had already made
up its mind and there was nothing he could do to change it.
Cruz’s emotional response “‘did not demonstrate to a reasonable certainty
that he in fact wished to represent himself.’” (Marshall, supra, 15 Cal.4th at p.
22.)
Cruz’s Lopez waiver does not convince us that his request was unequivocal.
Although he completed the waiver, he did so immediately after the court denied
his Marsden motion and he expressed frustration with the court. The test of a
valid waiver of counsel is not whether the defendant completed a particular form
and received specific advisements; rather, the record as a whole must demonstrate
that defendant truly desired to represent himself. (People v. Bloom (1989) 48
Cal.3d 1194, 1225; Marshall, supra, 15 Cal.4th at pp. 25-26.) Cruz had never
before requested to represent himself and did not renew the motion at any time
after the court denied it. (See People v. Hines (1997) 15 Cal.4th 997, 1028, [noting
that a “self-representation request that was an ‘impulsive response’ to the trial
court's denial of the defendant’s motion for substitute counsel and was not
renewed at a later court date was not unequivocal”].) Based on the record before
us, it appears that Cruz’s Faretta motion resulted from his “passing anger or
frustration.” (People v. Butler (2009) 47 Cal.4th 814, 825.) Accordingly, we
conclude the trial court did not err in denying Cruz’s request for selfrepresentation.
(Lodgment No. 6 at 4-10.)
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The Sixth Amendment to the United States Constitution guarantees a defendant in a

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criminal case the right to be represented by counsel. Faretta v. California, 422 U.S. 806, 807

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(1975).

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represent himself, but in order to invoke this right, a defendant must waive his Sixth Amendment

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right to counsel. See id. at 835. That waiver must be “knowing, voluntary and intelligent.”

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Iowa v. Tovar, 541 U.S. 77, 88 (2004) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

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Moreover, a Faretta request for self-representation must be timely, unequivocal, and not made

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for purposes of delay.

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McCormick v. Adams, 621 F.3d 970, 975 (9th Cir. 2010).

The Sixth and Fourteenth Amendments also guarantee a defendant the right to

Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir. 2007); see also

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Here, the California Court of Appeal concluded that Cruz’s request for self-representation

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was equivocal and untimely. When a state court concludes that a Faretta request was equivocal,

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a federal habeas court must determine whether that decision was an unreasonable

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determination of the facts. Woods v. Sinclair, 764 F.3d 1109, 1123 (9th Cir. 2014); Stenson,

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504 F.3d at 883. In doing so, federal courts examine three factors: “the timing of the request,

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the manner in which the request was made, and whether the defendant repeatedly made the

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request.” Stenson, 504 F.3d at 882.

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In applying these factors, a federal habeas court “must give significant deference to the

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trial court’s factual findings.” Id. (citing 28 U.S.C. § 2254(e)(1).) As such, Cruz’s burden here

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is not to convince this Court that his request was unequivocal, but that the state court’s finding

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

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presented in the State court proceeding.” Id. at 883.

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After considering the record as a whole, the California Court of Appeal concluded that

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Cruz’s request was equivocal. The court noted that Cruz made his request immediately after

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the trial court denied his Marsden motion to substitute counsel. (Lodgment No. 2, vol. 1 at 32-

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33.) During the Marsden hearing, Cruz expressed frustration with defense counsel’s decision

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not to call a character witness at trial. (Supp. Lodgment at 13-15.) Cruz also stated that he

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was dismayed that defense counsel advised him to consider taking a plea deal. (Id. at 15-16.)

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After hearing from defense counsel, however, the trial court concluded Cruz’s counsel was
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providing “great representation” and that there were no shortcomings in the advice defense

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counsel was providing Cruz. (Id. at 29.) The court stated that “the only conclusion I can reach

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is that you don’t like your predicament, but you’re in that predicament.” (Id. at 29-30.)

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Immediately following the denial of his Marsden motion, Cruz made his Faretta motion.

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(Lodgment No. 2, vol. 1 at 31.) As the trial court noted, at that point, the case was two-and-a-

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half years old and was set to go to trial in 30 days. (Id. at 34-35.) Cruz acknowledged he would

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need a continuance if the motion was granted. (Id. at 35.) The trial court then stated:

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What concerns me is now, the length of age of this case. The complexity
is not really a factor because a person has a constitutional right to represent
themselves no matter what the complexity of the case is, but in this instance, it’s
been around for two and a half years. And now, virtually at the last minute, and
certainly comparatively the last minute, the defendant is making a request that
he’s never made before and he’s making it immediately after his request to relieve
his attorney was denied which causes me to question whether or not this is an
unequivocal request. I don’t think that it is. I think it’s a result of “If I can’t get
rid of this attorney, then I’ll represent myself.” That’s not unequivocal.
The other considerations, and we discussed this during the Marsden
hearing, the quality of representation afforded to the defendant which he has
received, the reasons for the request don’t speak well in his favor because of the
denial of the Marsden motion. The fact that his matter has been around for two
and a half years and the indication from the defendant that he would not be
prepared for trial on the date set and would require an additional continuance of
an undermined length.
For those reasons, I find that the request is not timely, is not made
unequivocally and is therefore denied.
(Lodgment No. 2, vol. 1 at 35-36.)
Nothing in this case suggests that the state court’s conclusion that Cruz’s request was
equivocal was based on an unreasonable determination of the facts or an unreasonable
application of federal law. As for the timing of the request, the Ninth Circuit has held that a
relevant consideration in evaluating the equivocal nature of the request is whether the defendant
made it “in the context of a substitution motion.” See Wafer v. Hedgpeth, 627 Fed. Appx. 586,
587 (9th Cir. 2015); Stenson, 504 F.3d at 883 (“A clear preference for receiving new counsel
over representing oneself [may] be an indication that the request, in light of the record as whole,
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is equivocal.”) When the record shows that a defendant’s assertion that he wishes to represent

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himself was made as an emotional or impulsive response to a trial court ruling, it is not

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unequivocal. Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). Here, given the timing of

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Cruz’s request, the trial court reasonably determined it arose out of Cruz’s dissatisfaction with

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counsel, the desire for a new attorney, and in response to the denial of his Marsden motion.

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Cruz’s clear preference was appointment of new counsel. Cruz had never before asked to

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represent himself and did not renew his request in the weeks leading up to his trial. (See

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Lodgment No. 2, vol. 1 at 34.) The trial court, which was in the best position to assess the

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context of Cruz’s words, reasonably concluded he did not really want to represent himself. 4 See

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United States v. Mendez-Sanchez, 563 F.3d 935, 939 (9th Cir. 2009) (concluding that “a request

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to represent oneself made while at the same time stating a preference for representation by a

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different lawyer and rearguing the change of counsel motion is insufficient to invoke Faretta”).

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When Cruz’s request to represent himself is considered in the context of the entire record,

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the state court’s conclusion that the request was equivocal is neither contrary to, nor an

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unreasonable application of, clearly established law. 28 U.S.C. § 2254(d)(1), Williams, 529 U.S.

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at 407-08.

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determinationof the facts.

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Court therefore RECOMMENDS claims two, four and five be DENIED.

Moreover, the state court’s decision was not based on an unreasonable
28 U.S.C. § 2254(d)(2), see also Stenson, 504 F.3d at 883. The

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C.

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Cruz asks this Court to conduct an evidentiary hearing on his claims. (See Pet. at 1, ECF

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Request for Evidentiary Hearing

No. 1.) Cruz does not, however, identify what evidence, if any, he intends to present.

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Petitioner’s request is foreclosed by the Supreme Court’s decision in Cullen v. Pinholster,

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563 U.S. –, 131 S.Ct. 1388 (2011). There, the Supreme Court held that where habeas claims

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have been decided on their merits in state court, a federal court's review under 28

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U.S.C.§ 2254(d)(1) – whether the state court determination was contrary to or an unreasonable

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4

Having concluded that the state court reasonably found Cruz’s Faretta request to be equivocal, this
Court need not address the timeliness of the request. See Stenson, 504 F.3d at 882.
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application of established federal law – must be confined to the record that was before the state

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court. Pinholster, 131 S.Ct. at 1398. The Court specifically found that the district court should

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not have held an evidentiary hearing regarding Pinholster’s claims of ineffective assistance of

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counsel until after the Court determined that the petition survived review under section

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2254(d)(1). Id. at 1398; see also Gonzalez v. Wong, 667 F.3d 965, 979 (9th Cir. 2011).

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Here, for the reasons discussed in Sections IV(A)-(B) of this Report and Recommendation,

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none of Petitioner's claims survive review under section 2254(d). The Ninth Circuit has stated

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that “an evidentiary hearing is pointless once the district court has determined that § 2254(d)

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precludes habeas relief.” Sully v. Ayers, 725 F.3d 1057, 1075–76 (9th Cir. 2013). Accordingly,

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Petitioner’s request for an evidentiary hearing is DENIED.

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VI.

CONCLUSION AND RECOMMENDATION

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The Court submits this Report and Recommendation to United States District Judge

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Anthony J. Battaglia under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States

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District Court for the Southern District of California. For the reasons outlined above, the Court

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DENIES Petitioner’s request for an evidentiary hearing.

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In addition, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1)

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approving and adopting this Report and Recommendation, and (2) directing that Judgment be

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entered DENYING the Petition.

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IT IS HEREBY ORDERED that any party to this action may file written objections

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with the Court and serve a copy on all parties no later than September 11, 2017. The

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document should be captioned “Objections to Report and Recommendation.”

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///

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///

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///

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///

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///

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///

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///
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IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with the Court

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and served on all parties no later than October 2, 2017. The parties are advised that failure

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to file objections within the specified time may waive the right to raise those objections on

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appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

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v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

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Dated: 8/14/2017

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