Unpublished Disposition, 843 F.2d 502 (9th Cir. 1988)

MEMORANDUM^** 

Following a jury trial appellant was convicted and sentenced to life imprisonment for conspiracy to commit murder, assault with a deadly weapon, and discharging a weapon into an inhabited dwelling. After exhausting his state remedies, appellant filed this petition for writ of habeas corpus. The district court adopted the magistrate's recommendation and denied the writ without a hearing. Appellant appealed.

Appellant contends he was denied equal protection because Mexican-Americans were underrepresented on the Kern County grand jury. See Castaneda v. Partida, 430 U.S. 482, 492 (1977). Assuming appellant established a prima facie case of statistical underrepresentation, the state rebutted that prima facie case by showing the underrepresentation resulted not from purposeful discrimination but from neutral and acceptable juror qualifications. The record indicates a fair selection process was used. Jurors were drawn from voter registration rolls and Department of Motor Vehicle records, and the statistical underrepresentation was due to the ineligibility of many Hispanics because they were underage or unable to speak English.

Appellant's contention that the state court violated state law by convicting appellant on the uncorroborated testimony of an accomplice does not present a federal question cognizable in habeas corpus. See Engle v. Isaac, 456 U.S. 107, 121 n. 21 (1982); Lisenba v. California, 314 U.S. 219, 226-27 (1941); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986).

Appellant contends his Sixth Amendment right to confrontation was violated when testimony of an unindicted co-conspirator regarding statements made by appellant's co-defendant Arroyo was admitted over appellant's objection. However, a statement made by an unavailable co-defendant is admissible if it meets established indicia of reliability. See Ohio v. Roberts, 448 U.S. 56, 66 (1980); United States v. Kurka, 818 F.2d 1427, 1431 (9th Cir. 1987)). Arroyo's statements meet those indicia: it was a spontaneous assertion of past fact based on Arroyo's personal knowledge; the witness was subject to cross-examination; and there was no indication the witness's recollection was faulty. See Barker v. Morris, 761 F.2d 1396, 1401-03 (9th Cir. 1985). Nor is there any suggestion that the witness's statement misrepresented Arroyo's role in the conspiracy. See United States v. Kurka, 818 F.2d at 1431. To the contrary, the statement was essentially an admission of the witness's own guilt.

There was no constitutional error in admitting the testimony of Jose de la Cabos or in admitting appellant's own statements. The cases appellant relies on involve the quite different situation of admitting a co-defendant's confession in a joint trial with the defendant. See Cruz v. New York, 107 S. Ct. 1714, 1719 (1987).

AFFIRMED.