Sanchez v. Jacquez
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS re 1 Petition for Writ of Habeas Corpus filed by Robert A. Sanchez, ***Civil Case Terminated.. Signed by Judge Yvonne Gonzalez Rogers on 8/23/12. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 8/23/2012)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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OAKLAND DIVISION
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ROBERT A. SANCHEZ,
Petitioner,
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No. C 10-5561 YGR (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
v.
FRANCISCO JACQUEZ, Warden,
Respondent.
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INTRODUCTION
Petitioner Robert A. Sanchez seeks federal habeas relief from his state convictions.
For the reasons set forth below, the petition for such relief is DENIED.
BACKGROUND
In 2006, a Santa Clara County Superior Court jury found Petitioner guilty of murder,
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attempted murder and assault, consequent to which he was sentenced to a total term of 70
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years-to-life, plus eight months. Evidence presented at trial showed that in 2003, Petitioner,
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Jorge Ayala (Ayala) and Alex Diaz (Diaz), motivated by gang loyalties, attacked Christian
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Jimenez (Jimenez), aged 15, and Luis L., aged 14, resulting in Jimenez’s death. As
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stipulated at trial, Diaz alone shot and killed Jimenez during this attack. Petitioner and Ayala
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No. C 10-5561 YGR (PR)
ORDER DENYING PETITION
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were tried together. At trial, the prosecutor presented evidence showing that Petitioner and
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Ayala were members of “sister” Norteño gangs, whose inveterate enemies are the Surenos, to
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which gang Petitioner and Ayala believed the victims belonged. (Ans., Ex. 6 at 1–8.)
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Petitioner, Ayala, and Diaz found the victims in a park, posed as friends, and attacked them.
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The state appellate court concluded that the evidence showed the following about Petitioner’s
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involvement:
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For the Northern District of California
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[Petitioner] directly participated in the planned attack upon the victims —
singling them out, following them through the park, falsely posing as a Sureño,
consulting with Diaz in the bushes, assaulting one while Diaz shot the other,
then either attempting to shoot Luis or assisting Diaz in the attempt. Under
those circumstances, no reasonable jury could find that unpremeditated second
degree murder was reasonably foreseeable but that first degree murder
(premeditated or by lying in wait) was not.
(Id. at 20.)
Petitioner was denied relief on state judicial review, with the exception of a few
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instances not relevant to the federal habeas claims.1 This federal habeas petition followed.
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As grounds for federal habeas relief, Petitioner claims: (1) the trial court violated his right to
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an impartial jury; (2) the trial court gave two improper jury instructions;2 (3) defense counsel
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rendered ineffective assistance; and (4) the admission of gang evidence violated due process.
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STANDARD OF REVIEW
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Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
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this Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody
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pursuant to the judgment of a State court only on the ground that he is in custody in violation
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of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The
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petition may not be granted with respect to any claim adjudicated on the merits in state court
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unless the state court’s adjudication of the claim: “(1) resulted in a decision that was
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The state appellate directed the trial court to modify the judgment to strike an
enhancement and to resentence Petitioner under another statute, stay a term, clarify a restitution
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matter, and send out a copy of the abstract of judgment. (Ans., Ex. 6 at 40–42.)
This is a consolidation of all Petitioner’s jury instruction claims.
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No. C 10-5561 YGR (PR)
ORDER DENYING PETITION
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contrary to, or involved an unreasonable application of, clearly established Federal law, as
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determined by the Supreme Court of the United States; or (2) resulted in a decision that was
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based on an unreasonable determination of the facts in light of the evidence presented in the
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State court proceeding.” 28 U.S.C. § 2254(d). The state court decision to which Section
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2254(d) applies is the “last reasoned decision” of the state court, see Barker v. Fleming, 423
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F.3d 1085, 1091–92 (9th Cir. 2005), which in the instant matter is the state appellate court
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decision on direct review (Ans., Ex. 6).
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“Under the ‘contrary to’ clause of Section 2254(d), a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that reached by [the United States
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United States District Court
For the Northern District of California
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Supreme] Court on a question of law or if the state court decides a case differently than [the]
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Court has on a set of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529
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U.S. 362, 412–13 (2000). “Under the ‘unreasonable application’ clause, a federal habeas
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court may grant the writ if the state court identifies the correct governing legal principle from
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[the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s
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case.” Id. at 413. “[A] federal habeas court may not issue the writ simply because that court
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concludes in its independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly. Rather, that application must also be
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unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application”
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inquiry should ask whether the state court’s application of clearly established federal law was
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“objectively unreasonable.” Id. at 409.
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No. C 10-5561 YGR (PR)
ORDER DENYING PETITION
DISCUSSION
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I.
Impartial Jury3
During deliberations, jurors reported to the trial court their concerns that defense
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witness Simon Ortiz, and defendant Ayala’s mother Benita, were “watching them” outside
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the courtroom. In response, the trial court had bailiffs escort the jurors to their cars that
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evening. The trial court informed counsel the next day. Defense counsel moved for a
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mistrial, or, in the alternative, an evidentiary hearing to determine if the jurors had been
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prejudiced. The trial court denied the mistrial motion and the request for an evidentiary
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hearing, but did question the bailiff in front of counsel:
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The bailiff explained that two of the female jurors had become fearful when
they observed Ortiz and one or two other people watching them get in their
cars at the end of the day. Two other jurors also expressed concern. The jury
also told the bailiff that Benita Ayala and her family members had been present
in the jury area. The bailiff had promptly consulted with the court and, as the
court explained to counsel, the court responded by arranging for the escorts.
The court had directed the deputies not to say anything to the jury other than
that the escort was a “routine precaution.” [Defendant] Ayala’s counsel
informed the court that Ayala’s father had been called for jury duty, which
could have explained Benita Ayala’s presence in the jury assembly area.
In declining to hold an evidentiary hearing, the court stated, “I cannot see what
an evidentiary hearing would add to our factual background. There’s grave
danger in that evidentiary hearing and compounds whatever problem, if any,
we already have.” The court noted that both Ortiz and Benita Ayala were
entitled to be where the jury had observed them. “But even if the mere
presence of Mr. Ortiz and Ms. Ayala amounts to some sort of witness or
spectator misconduct because of them making themselves deliberately
conspicuous to the jurors, there is nothing to me to suggest that one or more —
the concern of one or more of the jurors was not an understandable concern or
that such a concern elevates to some sort of juror misconduct or denies either
defendant a fair trial.”
The court then had the jury brought in and the court read the following
admonition: “Yesterday, I was informed by the bailiff that one or more of you
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Petitioner also contends that the jury was prejudiced by flyers handed out by protestors
outside the courthouse. This claim is DENIED. First, while the flyer fairly summarizes the facts
25 of the case (Pet. at 5), and contains Benita Ayala’s name and telephone number, there is no
mention of the name of the action or anyone involved. Second, the flyer declares the prosecution
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defense. Third, Petitioner admits that the jurors, when questioned by the trial court, denied
27 having seen the flyer. (Id. at 4.). On such a record, Petitioner has not shown that the flyer or the
protestors prejudiced the jury.
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had noticed that Mr. Ortiz and/or other persons associated with the trial were
present in the parking structure at times that you were going to and from your
cars, and that Mrs. Ayala was present in the area of the jury assembly room on
the second floor.
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For the Northern District of California
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‘First, let me note that our records indicate that Javier Ayala Senior was
summoned for jury duty yesterday. I guess it’s fair to say we all have to do it
from time to time. That may well account for Mrs. Ayala’s presence in or near
the jury assembly room. In any event, please put these circumstances from
your mind, and do not let them influence your deliberations or decisions in any
way. Each of you took an oath to render a true verdict according only to the
evidence, and I further instructed each of you to decide what happened in this
case based only on the evidence that was presented to you during the course of
the trial.
‘Specifically, do not consider the presence or absence of any witnesses, family
members, or other persons associated with the trial in or near the courtroom at
any time during the trial, except of course if a witness testified, you may
consider their evidence as you were previously instructed.
‘To help ensure that you are not otherwise distracted during the course of your
deliberations, I’ve made arrangements for you to park together in a new
location. You’ll be transported together to the courthouse in the morning, and
back to your cars at the end of the day. This is a routine response to your
concerns, expressed by one or more of the jurors.
‘And you may now resume your deliberations. I know you sent us a question,
and we’re going to get to that in just a minute . . . [¶] . . . [¶]
‘Like I said, we will be able to answer that question for you, probably after
lunch. We’re going to provide you lunch today, so you can work through
lunch or not as you choose. But remember, it’s all 12 or none. You have to be
together.
‘Finally, reminder: If at any time during the trial, you feel that you are unable
to decide the case fairly and impartially according to the law and your oath,
please let me know, using our existing procedures.’
(Ans., Ex. 6 at 30–32.)
Petitioner claims that the trial court violated his right to a fair and impartial jury. The
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state appellate court concluded that the trial court acted well within its discretion (“Indeed,
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had the court conducted a hearing, it may well have created concern where none actually
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existed”), and rejected Petitioner’s claim:
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In the present case, there was no suggestion that either Ortiz or Benita Ayala
had said anything to any of the jurors or made any gestures. At worst, they
were alleged to have been “watching” the jurors. And there was an entirely
innocent explanation for Benita Ayala’s presence in the jury assembly area.
This is far less troubling than the cases defendants cite, where the tampering
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ORDER DENYING PETITION
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involved an anonymous telephone call in which the caller told the juror, “I
know where you live” [citation omitted] and where one juror was repeatedly
approached outside the courthouse, promised cash, a job and a new car if he
voted to acquit one of the two defendants [citation omitted]. We do not
assume, without more, that a juror’s safety concerns demonstrate bias either for
or against a defendant. [Citation omitted.]
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For the Northern District of California
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The trial court quite reasonably worried that if it were to question the jurors
about the incidents it would make the incidents seem more ominous than the
jury actually believed them to be. That the jury was not overly concerned is
evidenced by the fact that, even as the court and counsel were discussing the
issue, the jury had resumed its deliberations and had submitted a question
related to the substance of the deliberations and unrelated to the fears the jury
had communicated to the bailiff the night before. To the extent that the
presence of a defense witness made some of the jurors fearful, the court’s
safety measures — the morning and evening escort and the opportunity to work
through lunch — were designed to quell those fears.
The court’s admonition avoided stirring up further fears by assuring the jury
that the safety measures were routine and intended to eliminate distractions. It
also gave the jury a completely innocent explanation for Benita Ayala’s
presence in the jury area. Finally, the trial court instructed the jury to inform
the court if, at any time, “you feel that you are unable to decide the case fairly
and impartially.” Absent any further indication of concern from the jury, we
presume the jury was able to follow the admonitions it was given. [Citation
omitted.]
(Id. at 33–34.)
The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of
impartial jurors. U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S. 717, 722 (1961).
“Even if only one juror is unduly biased or prejudiced, the defendant is denied his
constitutional right to an impartial jury.” Tinsley v. Borg, 895 F.2d 520, 523–24 (9th Cir.
1990) (internal quotations omitted). Due process requires that the defendant have a jury
capable and willing to decide the case solely on the evidence before it and a trial judge ever
watchful to prevent prejudicial occurrences and to determine the effect of such occurrences
when they happen. Smith v. Phillips, 455 U.S. 209, 217 (1982).
Due process does not require, however, that the trial court hold a hearing every time
there is evidence or a question of juror bias. Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th
Cir. 2003). Rather, a case-by-case determination is appropriate. “[I]n determining whether a
hearing must be held, the court must consider the content of the allegations, the seriousness
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ORDER DENYING PETITION
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of the alleged misconduct or bias, and the credibility of the source.” United States v. Angulo,
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4 F.3d 843, 847 (9th Cir.1993) (Lay, J., concurring).
Petitioner’s claim cannot succeed. First, the mere fact that the trial court did not hold
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a hearing does not violate any clearly established federal right. See Tracey, 341 F.3d at
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1044. Second, the state appellate court reasonably determined that the trial court’s decision
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not to hold a hearing did not violate Petitioner’s rights. As noted above, (1) the jurors never
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indicated that they could not be fair or impartial, but rather registered their fears about Ortiz
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and Benita, (2) the encounters with Ortiz and Benita were brief and of ambiguous meaning;
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(3) the trial court acted to calm such fears by giving reasonable explanations for Benita’s
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For the Northern District of California
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presence in the courthouse and by having the jurors escorted to their cars, (4) after the court
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spoke with the jurors, they never raised the issue of their fears, and in fact, appeared to
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resume fair and impartial deliberations, and (5) the jurors were instructed to inform the court
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if any one of them could not be fair and impartial. On such a record, the state appellate
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court’s determination was reasonable. Furthermore, jurors are presumed to follow their
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instructions, see Richardson v. Marsh, 481 U.S. 200, 206 (1987). This Court, then, must
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presume that the jury discounted their fears and adhered to their instructions to be fair and
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impartial. Petitioner has not overcome this presumption. Accordingly, this claim is
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DENIED.
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II.
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Jury Instructions
Because it was stipulated that Diaz was the shooter, the prosecutor had to rely on
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vicarious theories of liability to try Petitioner and Ayala for the killing of Jimenez, here the
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“natural and probable consequences” doctrine. The trial court issued instructions on this
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doctrine, telling the jurors that “defendants could be guilty of murder or attempted murder,
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even if their intent was to aid and abet only disturbing the peace, fighting or challenging
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someone to fight, simple assault, or aggravated assault, if the more serious crimes were the
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natural and probable consequence of the less serious crimes.” (Ans., Ex. 6 at 14.) Petitioner
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raises two jury instructions claims, (A) & (B).
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No. C 10-5561 YGR (PR)
ORDER DENYING PETITION
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A.
Liability for First Degree Murder
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Petitioner claims that he could not permissibly be found guilty of first degree murder
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unless the jury found that first degree murder was a natural and probable consequence of the
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underlying crimes.
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Under California law,
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a trial court has the sua sponte duty, when a defendant’s liability for first
degree murder is as an accomplice under a natural and probable consequences
theory, to instruct the jury that it must determine whether premeditation and
deliberation, as it relates to the murder, was a natural and probable
consequence of the target crime. The duty arises, however, only when the
evidence would support a finding that a lesser degree of murder was
foreseeable and that the greater degree of the crime was not foreseeable.
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(Id. at 19–20.) The state appellate court concluded that the trial court’s duty to give such an
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instruction for Petitioner was at best “questionable”:
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[Petitioner] directly participated in the planned attack upon the victims —
singling them out, following them through the park, falsely posing as a Sureño,
consulting with Diaz in the bushes, assaulting one while Diaz shot the other,
then either attempting to shoot Luis or assisting Diaz in the attempt. Under
those circumstances, no reasonable jury could find that unpremeditated second
degree murder was reasonably foreseeable but that first degree murder
(premeditated or by lying in wait) was not.
(Id. at 20.)
Petitioner’s claim is without merit. His claim is essentially that the trial court did not
sua sponte instruct on lesser-included homicide offenses. The failure of a state trial court to
instruct on lesser-included offenses in a non-capital case does not present a federal
constitutional claim. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000).
Under circuit law, however, “the defendant’s right to adequate jury instructions on his
or her theory of the case might, in some cases, constitute an exception to the general rule.”
Id. at 929 (citation omitted). However, Petitioner is not entitled to relief under this putative
exception. First, circuit precedent does not constitute clearly established federal law under
AEDPA. Renico v. Lett, 130 S. Ct. 1855, 1865–66 (2010). Second, even if Solis applied, it
requires that there must be substantial evidence to warrant Petitioner’s desired instruction.
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See id. at 929–30. The evidence cited by the state appellate court shows that Petitioner was
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active in the criminal events leading to the death of Jimenez. The record, then, defeats any
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claim that Petitioner’s theory of the case constituted an exception to the general rule. This
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claim is DENIED.
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B.
Liability Based on Aiding and Abetting Misdemeanor Offenses
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Petitioner claims that the instructions violated his right to due process because it
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allowed the jury to find that murder, a crime requiring “malice aforethought,” was a natural
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and probable consequence of his aiding and abetting the misdemeanor crimes of simple
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assault and breach of the peace. The state appellate court rejected this claim as a
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For the Northern District of California
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misunderstanding of the natural and probable consequences doctrine:
[Petitioner’s] argument misses the salient point of the natural and probable
consequences doctrine. “‘[A] defendant whose liability is predicated on his
status as an aider and abettor need not have intended to encourage or facilitate
the particular offense ultimately committed by the perpetrator. His knowledge
that an act which is criminal was intended, and his action taken with the intent
that the act be encouraged or facilitated, are sufficient to impose liability on
him for any reasonably foreseeable offense committed as a consequence by the
perpetrator. It is the intent to encourage and bring about conduct that is
criminal, not the specific intent that is an element of the target offense, which
. . . must be found by the jury.’” [Citation omitted.] It follows that the jury
was not required to find [Petitioner] shared Diaz’s intent to kill in order to find
[him] guilty of murder and attempted murder under the natural and probable
consequences doctrine.
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[A]lthough murder (or attempted murder) may not always be a natural and
probable consequence of a simple assault [citation omitted], under certain
factual situations, particularly in the gang context, a jury is entitled to find that
it was [citations omitted].
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(Ans., Ex. 6 at 16–17.)
Petitioner alleges that the instruction offended due process because it was in conflict
with the state law requirement that malice aforethought was required for a finding of murder,
such malice not being inferable from his aiding and abetting the commission of
misdemeanors. Such claim is a matter of state law, violations of which are not remediable on
federal habeas review, even if state law were erroneously interpreted or applied. See
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ORDER DENYING PETITION
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Swarthout v. Cooke, 131 S. Ct. 859, 861–62 (2011). Furthermore, this Court is bound by the
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state appellate court’s determination that the instruction correctly stated the law. Bradshaw
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v. Richey, 546 U.S. 74, 76 (2005); see also Spivey v. Rocha, 194 F.3d 971, 977 (9th Cir.
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1999) (denying habeas relief on claim that aiding and abetting a misdemeanor was a
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misstatement of the law). Accordingly, Petitioner’s claim is DENIED.
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III.
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Assistance of Counsel
Petitioner claims that defense counsel rendered ineffective assistance by failing to
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object to the state expert witness’s opinion that the crime was planned. According to
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Petitioner, such opinion implied that he possessed murderous intent sufficient to prove his
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For the Northern District of California
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guilt of first degree homicide. The relevant facts are as follows:
The challenged testimony in this case came in the course of the prosecutor’s
exploration of the gang allegation. The prosecutor proposed a lengthy
hypothetical based upon the prosecution’s version of the events [ ]. The
prosecutor then proceeded to establish the expert’s opinion as to whether, as
alleged in the indictment, the murder [ ], “under these circumstances” would
“benefit the criminal street gangs” VMF and VNC.4 Based upon the
circumstances described by the prosecutor and his own understanding of gang
culture and the level of trust that existed among gang members, [the gang
expert] opined that the crimes had been planned in advance and were
committed at the direction of the gang.
(Ans., Ex. 6 at 22–23.)
The state appellate court reasoned that no objection was needed. The expert gave his
opinion on a hypothetical situation, not his opinion on the defendants’ “individual knowledge
and intent.” Furthermore, the trial court prevented any prejudice by continually issuing
admonitions regarding the expert. For example:
[E]arly on during the direct examination of [the expert witness], the trial court
overruled an objection, stating, ‘The jurors may place whatever value on the
expert’s opinion they choose.’ Later, after overruling another defense
objection, the court gave the jury a four paragraph admonition, concluding,
‘Experts’ opinions may be worth nothing, they may be worth everything, or
something in between. Ultimately the value that you place on an expert’s
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Sc. the Vario Meadow Fair and the Vario Norte Catorce gangs. They “are ‘sister’
Norteño gangs in the San Jose area. The two gangs are on friendly terms and their members
often socialize together. [Petitioner] and Ayala belonged to VMF. Diaz was a member of
27 VNC.” (Ans., Ex. 6 at 4.)
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opinion is entirely for you to decide.’
(Id. at 24.)
Claims of ineffective assistance of counsel are examined under Strickland v.
Washington, 466 U.S. 668 (1984). In order to prevail on a claim of ineffectiveness of
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counsel, the petitioner must establish two factors. First, he must establish that counsel’s
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performance was deficient, i.e., that it fell below an “objective standard of reasonableness”
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under prevailing professional norms, id. at 687–68, “not whether it deviated from best
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practices or most common custom,” Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (citing
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Strickland, 466 U.S. at 690 ). “A court considering a claim of ineffective assistance must
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apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of
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reasonable professional assistance.” Id. at 787 (quoting Strickland, 466 U.S. at 689).
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Second, he must establish that he was prejudiced by counsel’s deficient performance, i.e.,
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that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
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of the proceeding would have been different.” Strickland, 466 U.S. at 694. A reasonable
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probability is a probability sufficient to undermine confidence in the outcome. Id. Where
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the defendant is challenging his conviction, the appropriate question is “whether there is a
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reasonable probability that, absent the errors, the factfinder would have had a reasonable
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doubt respecting guilt.” Id. at 695. “The likelihood of a different result must be substantial,
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not just conceivable.” Richter, 131 S. Ct. at 792 (citing Strickland, 466 U.S. at 693).
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The admission of evidence is not subject to federal habeas review unless a specific
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constitutional guarantee is violated or the error is of such magnitude that the result is a denial
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of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d
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1021, 1031 (9th Cir. 1999). Habeas relief may be granted, however, only if there are no
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permissible inferences that the jury may draw from the evidence. See Jammal v. Van de
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Kamp, 926 F.2d 918, 920 (9th Cir. 1991).
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It is “well-established . . . that expert testimony concerning an ultimate issue is not per
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se improper.” Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir.
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2004). Although “[a] witness is not permitted to give a direct opinion about the defendant’s
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guilt or innocence . . . an expert may otherwise testify regarding even an ultimate issue to be
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resolved by the trier of fact.” United States v. Lockett, 919 F.2d 585, 590 (9th Cir. 1990).
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Petitioner’s claim fails. The state appellate court reasonably determined that there
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was no ineffective assistance. It was a reasonable tactical decision to decline to object,
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considering that the expert witness did not opine as to Petitioner’s guilt, but rather responded
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to a hypothetical. Furthermore, there was no prejudice. The trial court repeatedly instructed
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the jurors as to how to regard expert witness testimony, as noted above. Jurors are presumed
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to follow their instructions. Marsh, 481 U.S. at 206. Accordingly, this claim is DENIED.
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For the Northern District of California
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Relief is also precluded because, per Jammal, the jurors could have drawn the
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permissible inference as to how gangs are thought to behave. Furthermore, Petitioner cannot
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obtain relief because the Supreme Court “has not yet made a clear ruling that admission of
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irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to
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warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009).
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Petitioner’s claim is DENIED.
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IV.
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Admission of Gang Evidence
Petitioner claims that the trial court violated his right to due process by allowing the
18
prosecutor to admit “evidence of Diaz’s cell phone entry for [Petitioner] labeled as “Hitman,”
19
[Petitioner’s] “Fuck the World” tattoo, and the Nuestra Familia document [Petitioner]
20
possessed during trial.”5
21
This evidence was relevant to the “prosecution’s overall theory [ ] that [Petitioner] and
22
Ayala were members of a gang that had planned the crimes in retaliation for a prior attack
23
upon a fellow gang member.” The state appellate court found the evidence relevant, and
24
rejected this claim:
25
26
5
“While the trial was in progress, [Petitioner] was found in possession of a handwritten
document that explained the history of the Nuestra Familia prison gang and described the
27 Sureños as enemies of the Norteños.” (Ans., Ex. 6 at 10.)
28
12
No. C 10-5561 YGR (PR)
ORDER DENYING PETITION
5
All the evidence [Petitioner] challenges was relevant in that it established his
gang involvement. The cell phone entry showed that [Petitioner] had a
nickname and it was established at trial that gang members used nicknames.
The tattoo reflected an antisocial attitude that was common among gang
members. The Nuestra Familia document confirmed that, for Norteños,
Sureños were the enemy. It supported the inference that [Petitioner] had a
continued interest in the Norteño lifestyle, which reinforced evidence that
[Petitioner] was a committed gang member and committed the crimes as part of
a plan to retaliate against the sworn enemies of his gang.
6
(Ans., Ex. 6 at 25.) The court rejected as unpersuasive Petitioner’s allegations that “Hitman”
7
was prejudicial:
1
2
3
4
8
9
United States District Court
For the Northern District of California
10
11
This is, at best, an exaggeration. As the trial court observed, “Who knows why
people adopt nicknames.” “Hit,” is used colloquially both as a noun and as a
verb in a variety of contexts. For example, “Hitman” could easily have
referred (in Diaz’s mind) to a history of asking for things, as in hitting on
someone for a favor. The word is not as inherently prejudicial as defendant
maintains.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
(Id. at 25–26.)
As to the tattoo, the state appellate court concluded that any possible prejudice was
eliminated by the trial court’s instructions that such evidence was not admitted to show
“whether or not the person who wears such a tattoo is a good or bad person but only to
provide some factual background from which you might get some expert testimony about
what the tattoos might signify . . . In other words, it’s not character evidence.” (Id. at 26.)
Petitioner’s claim cannot succeed. First, there is no question that the evidence was
relevant — it provided evidence of motive and intent. Second, the state appellate court
reasonably determined that no prejudice resulted. Its explanation of the use of nicknames
and the Nuestra Familia document is plausible and supported by the record. Third, Petitioner
has not shown prejudice. The evidence was cumulative of other significant evidence of gang
association. An unexhaustive list of such evidence would include the following: (1) Luis
testified that Petitioner and the others pretended to be Surenos (and his testimony on this
topic was corroborated by eyewitness Diana); (2) Jose Aguilar, who lived in a house popular
27
28
13
No. C 10-5561 YGR (PR)
ORDER DENYING PETITION
1
as a gang gathering place and who drove Petitioner and Diaz to the park,6 overheard Diaz and
2
Ayala discuss their intentions to beat up or kill rival gang members; and (3) Jonathan Pipkin,
3
a friend of many Norteño gang members, testified that he heard Diaz discuss gang retaliation
4
while at a meeting with Ayala and Petitioner. Petitioner even admits that his gang
5
associations were established by other evidence, and that defense counsel did not dispute his
6
gang membership. (Pet. at 20 and 24.) Fourth, as noted above, relief is precluded because
7
there is no clearly established law holding that the admission of prejudicial or irrelevant
8
evidence can be the basis for issuance of the habeas writ. Holley, 568 F.3d at 1101.
9
Petitioner’s claim is DENIED.
United States District Court
For the Northern District of California
10
CONCLUSION
11
The state court’s adjudication of the claim did not result in a decision that was
12
contrary to, or involved an unreasonable application of, clearly established federal law, nor
13
did it result in a decision that was based on an unreasonable determination of the facts in
14
light of the evidence presented in the state court proceeding. Accordingly, the petition is
15
DENIED. A certificate of appealability will not issue. Reasonable jurists would not “find
16
the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
17
McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from
18
the Court of Appeals. The Clerk shall enter judgment in favor of Respondents and close the
19
file.
20
21
IT IS SO ORDERED.
DATED: August 23, 2012
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
22
23
24
25
26
6
27
The record indicates that Aguilar knew nothing about the planned attack that day. (Ans.,
Ex. 6 at 5.)
28
14
No. C 10-5561 YGR (PR)
ORDER DENYING PETITION
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