Jose Fructuoso v. Daniel Paramo, No. 2:2014cv02481 - Document 37 (C.D. Cal. 2016)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. The Petition for Writ of Habeas Corpus is DENIED and Judgment shall be entered dismissing this action with prejudice. (See document for further details). (mr)

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Jose Fructuoso v. Daniel Paramo Doc. 37 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOSE FRUCTUOSO, 11 Case No. CV 14-2481 SS Petitioner, 12 v. 13 MEMORANDUM DECISION AND ORDER DANIEL PARAMO, Warden, 14 Respondent. 15 16 17 I. 18 INTRODUCTION 19 20 21 22 23 Effective March 20, 2014, Jose Fructuoso (“Petitioner”), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.1 (Dkt. No. 1). On October 31, 2014, Respondent filed an Answer to the Petition 24 25 26 27 28 “When a prisoner gives prison authorities a habeas petition or other pleading to mail to court, [pursuant to the mailbox rule,] the court deems the petition constructively ‘filed’ on the date it is signed[.]” Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Houston v. Lack, 487 U.S. 266, 276 (1988). Here, that date was March 20, 2014. 1 Dockets.Justia.com 1 with an accompanying Memorandum of Points and Authorities (“Ans. 2 Mem.”). 3 portions of the record from Petitioner’s state court proceedings, 4 including a one-volume copy of the Clerk’s Transcript (“CT”) and a 5 seven-volume 6 Petitioner’s trial. 7 Petitioner filed a Reply with an accompanying Memorandum of Points 8 and Authorities (“Reply Mem.”). 9 discussed below, the Court DENIES the Petition and DISMISSES this 10 (Dkt. No. 18). copy of Respondent has also lodged relevant the Reporter’s Transcript (Dkt. Nos. 13, 19). (“RT”) from On February 2, 2016, (Dkt. No. 35). For the reasons action with prejudice.2 11 12 II. 13 PRIOR PROCEEDINGS 14 15 On November 23, 2011, a Los Angeles County Superior Court jury 16 convicted Petitioner of one count of second degree murder in 17 violation of California Penal Code (“P.C.”) § 187, and also found 18 it to be true that Petitioner personally used a deadly or dangerous 19 weapon within the meaning of P.C. § 12022(b)(1). 20 73). 21 to 16 years to life in state prison. 22 08, 4808-09). (CT 266, 272- On February 10, 2012, the trial court sentenced Petitioner (CT 289-90, 292-93; RT 4507- 23 24 Petitioner appealed his convictions and sentence to the 25 California Court of Appeal (Second Appellate District, Div. 4), 26 which affirmed the judgment in an unpublished opinion filed on 27 2 28 The parties have consented to proceed before a Magistrate Judge. (See Dkt. Nos. 7, 11, 14). 2 1 April 8, 2013. 2 for review in the California Supreme Court, which denied the 3 petition 4 (Lodgments 8-9). (Lodgments 1-4). without citation Petitioner then filed a petition to authority on July 10, 2013. 5 6 III. 7 FACTUAL BACKGROUND 8 9 The following facts, taken from the California Court of 10 Appeal’s written decision on direct review, have not been rebutted 11 with clear and convincing evidence and must, therefore, be presumed 12 correct. 13 749 n.1 (9th Cir. 2009). 14 relevant to Petitioner’s habeas petition. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, The Court here only includes facts 15 16 On the afternoon of January 1, 2010, Bennett 17 Bradley’s downstairs neighbor saw him outside, watering 18 his garden while talking on a cordless telephone. 19 5:00 p.m. the same day, the neighbor heard footsteps 20 upstairs in Bradley’s apartment and the sound of someone 21 moving furniture. 22 did not appear for a meeting at work on January 2, a 23 coworker went to his apartment. 24 floor of the living room with his throat slashed and his 25 pants twisted and down around his legs. 26 doors to his apartment were open. 27 near his body, with the cash missing. At When Bradley, a theatrical director, 28 3 Bradley was dead on the The outside His wallet was found His bedroom had 1 been ransacked, and there was blood in the living room 2 and bathroom . . . 3 4 Telephone records established that numerous calls 5 were made from Bradley’s telephone to [Petitioner’s] 6 between December 31, 2009 and January 1, 2010, and that 7 [Petitioner] returned the calls. [Petitioner] lived one- 8 half block from Bradley’s apartment. 9 was found in [Petitioner’s] living room which had blood 10 A carving knife consistent with Bradley’s DNA profile on it. 11 12 [Petitioner] was arrested. During the booking 13 process, [Petitioner] told an officer that he had met 14 “‘the other guy’” when he was 16, and that he had sex 15 with the other guy. 16 He said he had encountered the victim again recently and 17 that 18 [Petitioner] said the victim was having sex with him “so 19 hard.” 20 because he was a recycler. they had [Petitioner] was then 25 years old. gone back to the victim’s place. He told the officer he had the knife with him 21 22 (Lodgment 4 at 2-3). 23 24 IV. 25 PETITIONER’S CLAIMS 26 27 28 The Petition raises six grounds for federal habeas relief. In Ground One, Petitioner contends the trial court improperly required 4 1 him 2 incrimination in order to preserve his Sixth Amendment right to 3 present a defense. 4 Two, Petitioner contends the prosecutor committed misconduct during 5 his cross-examination of Petitioner when he: (a) accused Petitioner 6 of being a prostitute; (b) asked Petitioner about a concealed 7 knife; and (c) questioned Petitioner about whether Petitioner had 8 ever observed animals being slaughtered. 9 Mem. at 15-22). to waive his Fifth Amendment privilege against (Petition at 7; Reply Mem. at 4-14). self- In Ground (Petition at 7; Reply In Ground Three, Petitioner asserts that admission 10 of expert witness testimony about DNA evidence violated his Sixth 11 Amendment right to confront the witnesses against him. 12 at 7; Reply Mem. at 22-37). 13 police officer transporting him to jail improperly questioned him 14 in violation of Miranda v. Arizona, 384 U.S. 436 (1966).3 (Petition 15 at 8; Reply Mem. at 37-43). 16 the trial court failed to adequately respond to the jury’s question 17 about 18 (Petition at 8; Reply Mem. at 43-49). 19 claims the evidence is insufficient to demonstrate he committed 20 second degree murder. 21 \\ 22 \\ 23 \\ 24 \\ 25 3 26 27 28 the difference (Petition In Ground Four, Petitioner claims a between In Ground Five, Petitioner alleges first and second degree murder. In Ground Six, Petitioner (Petition at 8-9; Reply Mem. at 50-55). Ground Four also initially alleged that Petitioner was denied his Sixth Amendment right to counsel. (See Petition at 8). However, Respondent argued the Sixth Amendment claim was unexhausted. Petitioner agreed, and requested the Court strike the unexhausted (Sixth Amendment) portion of Ground Four. The Court granted Petitioner’s request. (Dkt. Nos. 12, 15-16). 5 1 V. 2 STANDARD OF REVIEW 3 4 The Antiterrorism and Effective Death Penalty Act of 1996 5 (“AEDPA”) “bars relitigation of any claim ‘adjudicated on the 6 merits’ in state court, subject only to the exceptions in §§ 7 2254(d)(1) and (d)(2).” 8 (2011). 9 grant habeas relief only if the state court adjudication was 10 contrary to or an unreasonable application of clearly established 11 federal law, as determined by the Supreme Court, or was based upon 12 an unreasonable determination of the facts. 13 U.S.C. § 2254(d)). 14 deferential standard for evaluating state-court rulings, which 15 demands that state-court decisions be given the benefit of the 16 doubt[.]” 17 (citations and internal quotation marks omitted). Harrington v. Richter, 562 U.S. 86, 98 Under AEDPA’s deferential standard, a federal court may Cullen Id. at 100 (citing 28 “This is a difficult to meet and highly v. Pinholster, 563 U.S. 170, 181 (2011) 18 19 Petitioner raised his claims in his petition for review to 20 the California Supreme Court, which denied the petition without 21 comment or citation to authority. 22 “looks through” the California Supreme Court’s silent denial to 23 the last reasoned decision as the basis for the state court’s 24 judgment. 25 there has been one reasoned state judgment rejecting a federal 26 claim, 27 rejecting the same claim rest upon the same ground.”); Cannedy v. 28 Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (“[W]e conclude that (Lodgments 5-6). The Court See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where later unexplained orders 6 upholding that judgment or 1 Richter does not change our practice of ‘looking through’ summary 2 denials to the last reasoned decision – whether those denials are 3 on the merits or denials of discretionary review.” 4 omitted)), as amended, 733 F.3d 794 (9th Cir. 2013), cert. denied, 5 134 S. Ct. 1001 (2014). 6 through Four and Six, the Court will consider the California Court 7 of Appeal’s reasoned opinion addressing those claims. 8 Thompkins, 560 U.S. 370, 380 (2010). 9 address Ground Five de novo.4 (footnote Therefore, in addressing Grounds One Berghuis v. However, the Court will See Id. at 390 (“Courts can . . . 10 deny writs of habeas corpus under § 2254 by engaging in de novo 11 review when it is unclear whether AEDPA deference applies, because 12 a habeas petitioner will not be entitled to a writ of habeas corpus 13 if his or her claim is rejected on de novo review[.]”); Norris v. 14 Morgan, 622 F.3d 1276, 1290 (9th Cir. 2010) (affirming denial of 15 habeas 16 review); Frantz v. Hazey, 533 F.3d 724, 735-37 (9th Cir. 2008) (en 17 banc) (a federal habeas court can review constitutional issues de 18 novo before performing a § 2254(d)(1) analysis). 19 \\ 20 \\ corpus petition when claim failed even under de novo 21 22 23 24 25 26 27 28 4 Although Petitioner cited both state and federal law in relation to Ground Five (see Lodgment 1 at 74, 77-78, 83; see also Lodgment 5 at 32, 38 (petition for review citing both state and federal law)), the California Court of Appeal discussed only the state law aspect of Ground Five. (See Lodgment 4 at 28). Since Ground Five must be denied even on de novo review, the Court need not consider the applicability of the Johnson v. Williams presumption. See Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013) (“When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits — but that presumption can in some limited circumstances be rebutted.”). 7 1 VI. 2 DISCUSSION 3 4 A. Petitioner Is Not Entitled To Relief On Ground One 5 6 In Ground One, Petitioner claims the trial court improperly 7 required him to waive his Fifth Amendment privilege against self- 8 incrimination in order to preserve his Sixth Amendment right to 9 present a defense. (Petition at 7; see also Reply Mem. at 4-14). 10 More particularly, Petitioner complains that the trial court ruled 11 that Petitioner’s expert witness, Nancy Kaser-Boyd, Ph.D., could 12 not testify about statements Petitioner made to her unless those 13 statements were already in the record. 14 is that the expert cannot relay the statements about the incident 15 to the jurors, the statements made by [Petitioner]. . . . 16 [Petitioner] testifies and lays it all out as he told the doctor, 17 then that’s a different story. 18 evidence . . . will already be in the record.”)). (See RT 2798-99 (“My ruling If She can testify because that 19 20 1. Background 21 22 23 The California Court of Appeal set forth the following facts underlying this claim: 24 25 Before trial, the prosecutor moved to limit the 26 examination 27 psychologist] 28 inadmissible hearsay in the guise of expert opinion. of defense Dr. expert Kaser–Boyd, 8 witness, and to [forensic exclude One 1 of his arguments was that the defense could not put 2 [Petitioner’s] statements before the jury in the guise 3 of using them as a basis for Dr. Kaser–Boyd’s opinion 4 that he suffered from [post-traumatic stress disorder 5 (“PTSD”)]. 6 motion, the court [addressed] the order of the witnesses. 7 Defense counsel said: “As an offer of proof, I’m letting 8 the court know my client will be testifying.” 9 asked why At the outset of the discussion of that defense counsel did not The court plan to call 10 [Petitioner] right away since he planned to testify. 11 Defense counsel said she was not ready to have him 12 testify on direct because she had been preparing for the 13 examination of Dr. Kaser–Boyd. 14 15 The court then took up the prosecution’s motion to 16 require [Petitioner] to testify first in order to lay a 17 foundation for Dr. Kaser–Boyd’s testimony about the basis 18 for her opinion that he suffered from PTSD. 19 asked 20 Kaser–Boyd. 21 that he did not have to because the expert witness could 22 testify about hearsay statements which were used to form 23 her opinions. 24 backdoor 25 before the jury without his testimony. 26 said she was confused about the prosecutor’s concern 27 because 28 [Petitioner] would testify. whether [Petitioner] testify before Dr. Defense counsel said that he would not, and The prosecutor argued that this was a method she would The court of had placing [Petitioner’s] represented to statements Defense counsel the court that The court observed that if 9 1 [Petitioner] 2 prosecutor would have no way of challenging Dr. Kaser– 3 Boyd’s testimony about what [Petitioner] told her. changed his mind about testifying, the 4 5 The trial court tentatively ruled that Dr. Kaser– 6 Boyd could not testify unless [Petitioner] testified[.] 7 It took a recess to read [a case] cited by defense 8 counsel. . . . 9 ruling Defense counsel argued that the court’s would force [Petitioner] to choose between 10 invoking his Fifth Amendment privilege not to testify or 11 having Dr. Kaser–Boyd prevented from testifying about 12 the basis for her PTSD opinion. 13 rule that it had the discretion to weigh the probative 14 value of the inadmissible evidence relied upon by an 15 expert witness against the risk that the jury might 16 improperly consider it as independent proof of those 17 facts. . . . 18 testified about his history of sexual abuse, Dr. Kaser– 19 Boyd could not testify about his statements which were a 20 basis 21 [Petitioner] testified before Dr. Kaser–Boyd. for The court relied on the The court ruled that unless [Petitioner] her opinion that he suffered from PTSD. 22 23 (Lodgment 4 at 4-5 (citations omitted); see also CT 168-88; RT 24 2787-2800). 25 \\ 26 \\ 27 \\ 28 \\ 10 2. California Court of Appeal’s Opinion 3 The California 4 follows: 1 2 Court of Appeal set forth the issue, trial court erred as 5 6 [Petitioner] argues the in 7 requiring him to testify as to the factual basis for a 8 defense expert’s testimony that he suffered from [PTSD]. 9 He claims he was forced to waive his Fifth Amendment 10 privilege 11 preserve his Sixth Amendment right to present the PTSD 12 defense. 13 [Petitioner] is more properly framed as whether the trial 14 court erred in ruling that [Petitioner’s] testimony was 15 required to lay an adequate foundation for the testimony 16 of the expert witness on PTSD. 17 court’s ruling on that question for abuse of discretion. against [¶] self[-]incrimination . . . The in question order presented to by We review the trial 18 19 (Lodgment 4 at 3-4). 20 California case law and the California Evidence Code, concluded 21 that, on the record presented, there was “no abuse of the trial 22 court’s 23 factual foundation for Dr. Kaser-Boyd’s opinion that he suffered 24 from PTSD. . . . 25 concluding that admission of [Petitioner’s] statements through the 26 expert’s 27 statements for the truth of the matter asserted.” 28 7-10). discretion The California Court of Appeal, relying on in requiring [Petitioner] to testify to a [T]he trial court acted within its discretion in testimony would allow 11 the jury to consider those (Lodgment 4 at 1 3. Analysis 2 3 a. State Law Claims 4 5 Although Petitioner claims the trial court violated his Fifth 6 Amendment 7 relies almost entirely on California law. 8 at 8 (“The court’s ruling that [P]etitioner had to testify before 9 Dr. privilege Kaser-Boyd could against self-incrimination, testify was wrong his argument (See, e.g., Reply Mem. as a matter of law. 10 [California] Evidence Code [§] 802 allows an expert witness to 11 ‘state on direct examination the reasons for his opinion and the 12 matter . . . upon which it is based[.]’”)). 13 court, in conducting habeas review, is limited to deciding whether 14 a state court decision violates the Constitution, laws or treaties 15 of the United States. 16 562 U.S. 216, 219 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 17 62, 67-68 (1991). 18 errors of state law[,]” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); 19 see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) 20 (“[I]t is only noncompliance with federal law that renders a 21 State’s criminal judgment susceptible to collateral attack in the 22 federal courts.” (emphasis in original)), and Petitioner “may not 23 transform a state-law issue into a federal one merely by asserting 24 a violation of due process.” 25 (9th Cir. 1997). 26 Ground One or in any of his other claims for relief – that he is 27 entitled to habeas corpus relief due to an alleged state law 28 violation, or because the trial court abused its discretion, any However, a federal 28 U.S.C. § 2254(a); Swarthout v. Cooke, Federal habeas corpus relief “does not lie for Langford v. Day, 110 F.3d 1380, 1389 Therefore, to the extent Petitioner claims – in 12 1 such claim is not cognizable in this proceeding.5 See Williams v. 2 Borg, 139 F.3d 737, 740 (9th Cir. 1998) (Federal habeas relief is 3 available “only for constitutional violation, not for abuse of 4 discretion.”). 5 6 b. Ground One Is Without Merit 7 8 The Fifth Amendment provides, in pertinent part, that “[n]o 9 person . . . shall be compelled in any criminal case to be a witness 10 against himself.” U.S. Const. amend. V. 11 self-incrimination, 12 Fourteenth Amendment, “guarantees . . . the right of a person to 13 remain silent unless he chooses to speak in the unfettered exercise 14 of his own free will, and to suffer no penalty . . . for such 15 silence.” 16 v. New York, 401 U.S. 222, 225 (1971) (“Every criminal defendant 17 is privileged to testify in his own defense, or to refuse to do 18 so.”). 19 requirement that the State which proposes to convict and punish an 20 individual produce the evidence against him by the independent which applies to This privilege against the states through the Malloy v. Hogan, 378 U.S. 1, 8 (1964); see also Harris “The essence of this basic constitutional principle is ‘the 21 22 23 24 25 26 27 28 Indeed, “a state court’s interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam); see also Hicks on behalf of Feiock v. Feiock, 485 U.S. 624, 629-30 & n.3 (1988) (“We are not at liberty to depart from the state appellate court’s resolution of these issues of state law. Although petitioner marshals a number of sources in support of the contention that the state appellate court misapplied state law on these two points, the California Supreme Court denied review of this case, and we are not free in this situation to overturn the state court’s conclusions of state law.”). 5 13 1 labor of its officers, not by the simple, cruel expedient of forcing 2 it from his own lips.’” 3 (citations and emphasis omitted). 4 proscribes 5 compulsion of testimony.’ 6 accusation, the Fifth Amendment privilege is not violated by even 7 the most damning admissions.” 8 U.S. 181, 187 (1977). 9 “there are undoubted pressures[] generated by the strength of the 10 government’s case against [a criminal defendant] pushing [him] to 11 testify[,]” those pressures do not “constitute ‘compulsion’ for 12 Fifth Amendment purposes.” 13 523 U.S. 272, 287 (1998); Williams v. Florida, 399 U.S. 78, 83-84 14 (1970). only Estelle v. Smith, 451 U.S. 454, 462 (1981) However, “the Fifth Amendment self-incrimination obtained by a ‘genuine Absent some officially coerced self- United States v. Washington, 431 Thus, for instance, while in certain cases Ohio Adult Parole Auth. v. Woodard, 15 Petitioner 16 contends the trial court’s evidentiary ruling 17 limiting Dr. Kaser-Boyd’s testimony about statements Petitioner 18 made to her unless those statements were already in the record 19 forced him to choose between his Fifth Amendment privilege against 20 self-incrimination and his Sixth Amendment right to present a 21 defense, 22 argument.6 23 held not to infringe upon a petitioner’s privilege against self- but he cites no pertinent authority supporting this To the contrary, such decisions have consistently been 24 25 26 27 28 Petitioner’s claim is more than a little disingenuous since the trial court was informed Petitioner was going to testify regardless of the trial court’s ruling. (See, e.g., RT 2789 (“I [defense counsel] am representing to the court that [Petitioner] will be testifying. So [Dr. Kaser-Boyd’s] statements won’t be offered for the truth as a backdoor to get [Petitioner’s] statements in. [Petitioner] will testify. So that should be a non-issue.”)). 6 14 See Williams, 399 U.S. at 84 (“That the defendant 1 incrimination. 2 faces . . . a dilemma demanding a choice between complete silence 3 and presenting a defense has never been thought an invasion of the 4 privilege 5 Terhune, 422 F.3d 1012, 1032 (9th Cir. 2005) (“The judge did not 6 require the defendants to take the stand; he merely regulated the 7 admission of evidence, and his commentary as to what evidence might 8 constitute a foundation did not infringe on Petitioners’ right to 9 decide whether to testify.”); United States v. Perkins, 937 F.2d 10 1397, 1404–05 (9th Cir. 1991) (defendant’s “tactical decision to 11 testify” 12 constitutes a proper trial strategy” does not violate the Fifth 13 Amendment’s 14 defendant felt it necessary to testify because of the district 15 court’s evidentiary rulings); United States v. Garro, 268 F. App’x 16 573, 575 (9th Cir. 2008) (“[A]ny decision of Garro to testify in 17 order to lay [a] foundation for the tape’s admission was a tactical 18 one and not compelled in violation of the Fifth Amendment”); United 19 States v. Singh, 811 F.2d 758, 762 (2d Cir. 1987) (“[T]he court 20 did not compel appellant to testify at all. It merely refused to 21 accept the proffered testimony of other witnesses until a proper 22 foundation was laid. There was nothing erroneous about this.”). against based on compelled his privilege self-incrimination.”); “own against subjective Menendez perception self-incrimination, even of if v. what the 23 24 Therefore, the rejection of this claim was not contrary to, 25 or an unreasonable application of, clearly established federal 26 law.7 27 7 28 Petitioner contends AEDPA deference is inapplicable to this claim because the California Court of Appeal did not specifically 15 1 B. 2 Petitioner Is Not Entitled To Relief On His Prosecutorial Misconduct Claims 3 4 In Ground Two, Petitioner contends the prosecutor committed 5 misconduct during his cross-examination of Petitioner when he: (a) 6 accused Petitioner of being a prostitute; (b) asked Petitioner 7 about 8 whether Petitioner had ever observed animals being slaughtered. 9 (Petition at 7; Reply Mem. at 15-22). a concealed knife; and (c) questioned Petitioner about 10 11 1. Factual Background 12 13 14 The California Court of Appeal set forth the following facts underlying these claims: 15 16 1. Prostitution 17 18 19 [Petitioner] argues it was improper for the prosecutor to ask [Petitioner] if he had told detectives 20 21 22 23 24 25 26 27 28 discuss Petitioner’s Fifth Amendment argument. (Pet. Mem. at 67). However, the California Court of Appeal was well aware of the argument Petitioner was making (see Lodgment 4 at 3-4 (“[Petitioner] claims he was forced to waive his Fifth Amendment privilege against self[-]incrimination in order to preserve his Sixth Amendment right to present the PTSD defense.”), 5-6 (“[Petitioner] claims the [trial] court’s ruling required that he waive his Fifth Amendment privilege against self-incrimination in order to preserve his Sixth Amendment right to present a defense”)), and the Court presumes the California Court of Appeal denied this claim on the merits. Williams, 133 S. Ct. at 1096. Petitioner has not rebutted this presumption. In any event, for the reasons discussed herein, Petitioner’s claim fails even if subject to de novo review. 16 1 that he had prostituted himself for money. 2 series of questions during his cross-examination in which 3 [Petitioner] denied asking Bradley for money in exchange 4 for sex. 5 money. 6 question asking whether [Petitioner] prostituted himself 7 for people who “appreciate” it. 8 asked: “Mr. Fructuoso, you told Detective Frettlhor that 9 you don’t like to prostitute yourself for money; isn’t He cites a [Petitioner] denied prostituting himself for The court sustained a defense objection to a The prosecutor then 10 that true?” 11 answered “Yes.” 12 the 13 Detective Frettlhor that he did prostitute himself for 14 money, but only to people “who appreciate” it. 15 interpreter said the question had not been interpreted, 16 the prosecutor asked whether [Petitioner] told Detective 17 Frettlhor that he did prostitute himself. 18 was overruled and [Petitioner] denied saying both that, 19 and that he only prostituted himself for people who 20 appreciate 21 prostitution with another man. There was no objection, and [Petitioner] prosecutor The court overruled an objection when next it. asked whether [Petitioner] [Petitioner] told When the An objection also denied counsel argued committing 22 23 At sidebar, defense [Petitioner’s] that the with the 24 transcript 25 detectives 26 engaging in prostitution for money. 27 disagreed, quoting the transcript in which [Petitioner] 28 said he did not prostitute himself, and “I just like to of clearly showed 17 that interview [Petitioner] denied The prosecutor 1 do it with persons I like.” 2 court he planned to play this recording for the jury. 3 Defense counsel continued to argue that [Petitioner] 4 consistently 5 during the interview. 6 ruled that the prosecutor had a good faith basis to 7 inquire into this area, and overruled the objection. 8 court advised defense counsel that she could examine 9 [Petitioner] about the conversation on redirect. denied The prosecutor told the prostituting himself for money The court read the transcript and The 10 11 Later, outside the presence of the jury, the 12 prosecutor asked to make a record regarding his good 13 faith basis for asking [Petitioner] whether he told the 14 detective he 15 following portion 16 interview into 17 relationship 18 Okay, 19 Danny, was that just for money, or did you do it sometimes 20 for — because you wanted to?’ 21 time, well, that he had me, and I didn’t think there was 22 a reason to say or to reject him or — but I did like 23 him.’ [¶] ‘You liked him?’ [¶] ‘Yes. 24 and I didn't like prostituting myself for money, no.’ 25 [¶] 26 said this was the basis for his good faith belief that 27 [Petitioner] 28 himself for money and with Danny. now had of the with your prostituted the transcript record another told the regarding man: relationship, ‘But did you do it?’ himself. [¶] of your read the the police [Petitioner’s] “Question, ‘bisexual? relationship with ‘Well, that happened at a I did like — yes, ‘Yes.’” detective 18 He he The prosecutor had prostituted The prosecutor read 1 the next portion of the interview transcript in which 2 the detective asked [Petitioner] how long he had been 3 prostituting himself. 4 that, and said “‘I just like to do it with a person I 5 like.’” [Petitioner] once again denied 6 Defense counsel argued that “it” in the last quoted 7 8 sentence could refer to either prostitution or sex. 9 contended it was not a reference to prostitution because 10 [Petitioner] corrected the detective and said “‘No, I 11 didn’t prostitute myself.’” 12 allowed the question and asked the prosecutor whether he 13 planned further 14 issue. The prosecutor said he did not, that he just 15 wanted to demonstrate the basis for his good faith belief 16 in 17 Ultimately, 18 interview for the jury. the the The court said that it had examination propriety of that prosecutor She of [Petitioner] line chose of not on that questioning. to play the 19 20 2. Concealed Knife 21 22 After a recess, the court said: “I have a note from 23 one of the jurors who has a different view concerning 24 the interpretation, and I’m going to read it in the 25 record. 26 if you can clarify the point, whether Mr. Haidar [the 27 prosecutor] said something to the effect of, quote “‘In 28 fact, that’s when you pulled the knife out of your Then counsel may want to inquire again to see 19 1 pants?’ Or, quote, ‘Translator never mentioned anything 2 about his pants or the knife being concealed.’” 3 court invited counsel to consider the note and decide 4 whether they wanted to reexamine [Petitioner] about these 5 questions. 6 resumed, 7 concealed in his pants on January 2, 2010 when he went 8 to Bradley’s apartment. Redirect and he was examination asked whether of he The [Petitioner] had a weapon [Petitioner] said he did not. 9 10 3. Observation of Animal Slaughtering 11 12 In cross-examination of [Petitioner], the 13 prosecutor asked him about his work in produce at a 14 market in Oaxaca before he came to the United States. 15 The prosecutor asked whether animals were slaughtered at 16 that market. 17 sold. 18 alive, the trial court sustained an objection that there 19 was no good faith basis for those questions. 20 were sustained to questions as to whether [Petitioner] 21 had seen animals being slaughtered while in Mexico. [Petitioner] said no, small animals were When the prosecutor asked whether they were sold Objections 22 23 At a sidebar conference, the prosecutor argued that 24 whether 25 slaughtered by slitting their throats was “relevant to 26 his knowledge and ability to [do] what he did to Bennett 27 Bradley which is slitting his throat.” 28 objected that there was no evidence that [Petitioner] [Petitioner] had 20 observed animals being Defense counsel 1 slaughtered 2 argumentative. 3 repeatedly asked questions containing a fact not in the 4 record which could not be proven, which was prejudicial 5 to [Petitioner]. 6 good faith basis to believe that animals were slaughtered 7 in the market where [Petitioner] worked in Oaxaca. 8 court responded: “That’s not an unusual position to 9 take.” animals, and that the question was She complained that the prosecutor had Defense She contended the prosecutor had no counsel argued that this line The of 10 questioning 11 prosecutor was, in effect, testifying to facts not in 12 evidence. was prejudicial misconduct because the 13 14 In arguing that the question about animal 15 slaughtering was part of a pattern of misconduct by the 16 prosecutor, defense counsel cited the note from a juror 17 about the interpretation of testimony regarding whether 18 [Petitioner] concealed a knife in his pants. 19 counsel argued that this note demonstrated that one of 20 the 21 testifying to facts in the context of his questions to 22 [Petitioner]. jurors had observed that the Defense prosecutor was 23 24 The prosecutor responded: “It’s common knowledge. 25 I’ve been to Mexico. 26 animals. 27 demanded an offer of proof from the prosecutor as to the These small towns, they slaughter It’s not anything unusual.” 28 21 Defense counsel 1 basis for a belief that [Petitioner] has a specific 2 knowledge about how to slaughter animals. 3 4 The court ruled that the entire line of questioning 5 was not irrelevant and that the prosecutor had not acted 6 improperly. 7 sense that if you cut someone’s throat, they are either 8 going to die or be severely injured for a long time. 9 think it’s a waste of time. It observed: “I just think that it’s common I That’s why I sustained the 10 objections.” 11 to another line of questioning and did so. The prosecutor was admonished to move on 12 13 (Lodgment 4 at 11-14; see also RT 3166-71, 3175-76, 3188-90, 3203- 14 04, 3315-16, 3327-30, 3342). 15 16 2. California Court of Appeal’s Opinion 17 18 The California Court of Appeal determined that Petitioner had 19 not 20 (Lodgment 4 at 15). 21 held that the claims were meritless, stating: properly preserved his prosecutorial misconduct claims. Alternately, the California Court of Appeal 22 23 Even assuming that all of the misconduct claims are 24 preserved for appeal, we find no basis for reversal. 25 to the prostitution line of questioning, we conclude the 26 prosecutor demonstrated a good faith belief in the facts 27 underlying these questions. “‘“It is improper for a 28 prosecutor to ask questions of a witness that suggest 22 As 1 facts harmful to a defendant, absent a good faith belief 2 that such facts exist.”’” 3 were properly based on the portion of the interview with 4 the detective in which [Petitioner] said he prostituted 5 himself for money, although he did not like it. 6 ambiguity in this statement could have been addressed by 7 defense 8 [Petitioner’s] defense that the murder occurred when 9 Bradley attempted to rape him, as he had done when 10 counsel on The prosecutor’s questions redirect. It was relevant Any to [Petitioner] was 16. 11 12 Similarly, since the knife with Bradley’s blood was 13 found in [Petitioner’s] apartment, the prosecutor had a 14 good faith basis to ask [Petitioner] whether he had the 15 knife concealed in his clothing when he went to Bradley’s 16 apartment. 17 note appeared to refer to problems the juror had with 18 the interpretation rather than the prosecutor’s conduct. We agree with respondent that the juror’s 19 20 We find less support for the prosecutor’s questions 21 about [Petitioner’s] observation of animal slaughter in 22 Mexico while working at a market. 23 sustained defense objections that the prosecutor had no 24 good faith factual basis for this line of questioning. 25 After objections to two questions were sustained, a 26 sidebar 27 prosecutor had 28 questions were was held. not a Although acted waste But the trial court the court improperly, of 23 time and found the found the directed the it 1 prosecutor to move on to another topic. 2 failed to ask the court to admonish the jury to disregard 3 the 4 questions by counsel are not evidence. 5 not assume that something is true just because one of 6 the attorneys asked a question that suggested it was 7 true.” 8 under either the state or federal standards. questions. The jury was Defense counsel instructed that the It was told: “Do On this record, we find no prejudicial misconduct 9 10 (Lodgment 4 at 16-17 (citation omitted)). 11 12 3. Analysis 13 14 Prosecutorial misconduct rises to the level of a 15 constitutional violation only where it “‘so infected the trial with 16 unfairness as to make the resulting conviction a denial of due 17 process.’”8 Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting 18 8 19 20 21 22 23 24 25 26 27 28 Respondent contends Ground Two is procedurally defaulted. (Ans. Mem. at 22-23). However, the Court will not address this argument because it retains the discretion to deny claims on the merits even if the claims are alleged to be procedurally defaulted. See Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) (“While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits.”); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“[C]ourts are empowered to, and in some cases should, reach the merits of habeas petitions if they are . . . clearly not meritorious despite an asserted procedural bar.”). Rather, because the California Court of Appeal alternately rejected Petitioner’s prosecutorial misconduct allegations on the merits, this Court will apply AEDPA deference to the California Court of Appeal’s reasoning. See Clabourne v. Ryan, 745 F.3d 362, 383 (9th Cir. 2014) (“AEDPA deference applies to [an] alternative holding on the merits.”), overruled in part on other grounds, McKinney v. Ryan, 813 F.3d 798 24 1 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also 2 Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of 3 due process analysis in cases of alleged prosecutorial misconduct 4 is 5 prosecutor.”). 6 occurred requires an examination of the entire proceedings so the 7 prosecutor’s conduct may be placed in its proper context. 8 v. California, 494 U.S. 370, 384-85 (1990); Greer v. Miller, 483 9 U.S. 756, 765-66 (1987). the fairness of the trial, Determining not whether the a culpability due process of the violation Boyde Moreover, “[p]rosecutorial misconduct 10 which rises to the level of a due process violation may provide 11 the grounds for granting a habeas petition only if that misconduct 12 . . . ‘had substantial and injurious effect or influence in 13 determining the jury’s verdict.’” 14 478 (9th Cir. 2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 15 623 (1993)). Shaw v. Terhune, 380 F.3d 473, 16 “‘It is improper under the guise of artful cross-examination, 17 18 to tell the jury the substance of inadmissible evidence.’” 19 States v. Stinson, 647 F.3d 1196, 1214 (9th Cir. 2011) (citation 20 omitted); see also United States v. Sine, 493 F.3d 1021, 1032 n.8 21 (9th 22 questioning can constitute prosecutorial misconduct.”). 23 however, as the California Court of Appeal found, the prosecutor 24 had a good faith basis for asking Petitioner whether he had engaged 25 in prostitution, and whether he had taken a concealed knife to the 26 27 28 Cir. 2007) (“[I]ncorporating inadmissible United evidence into Here, (9th Cir. 2015) (en banc), cert. denied, __ S. Ct. __, 2016 WL 1258977 (Oct. 3, 2016); Stephens v. Branker, 570 F.3d 198, 208 (4th Cir. 2009) (“[A]n alternative merits determination to a procedural bar ruling is entitled to AEDPA deference.”). 25 1 victim’s home. 2 Accordingly, the prosecutor did not commit misconduct in asking 3 these questions. 4 (9th Cir. 2000) (“[T]he prosecutor did not engage in misconduct. 5 He 6 inadmissible.”); United States v. Etsitty, 130 F.3d 420, 424 (9th 7 Cir. 1997) (no prosecutorial misconduct when “[n]othing in the 8 questioning or the answers given can be construed to reflect an 9 intention by the prosecutor to mislead the jury”), amended by, 140 10 did not (See Lodgment 4 at 16-17; see also RT 3188-90). See United States v. Cabrera, 201 F.3d 1243, 1247 seek to introduce evidence that had been ruled F.3d 1274 (9th Cir. 1998). 11 12 Moreover, even if the prosecutor’s questions regarding 13 Petitioner’s observations of animal slaughter were improper, the 14 trial 15 questions. 16 that: court sustained defense (RT 3327-30). counsel’s objections to The trial court also instructed the jury 17 18 Nothing that the attorneys say is evidence. . . . 19 questions are not evidence. 20 are evidence. 21 only if they helped you to understand the witnesses’ 22 answers. 23 because 24 suggested it was true. 25 attorneys 26 answers 27 objections according to the law. 28 objection, you must ignore the question. Their Only the witnesses’ answers The attorneys’ questions are significant Do not assume that something is true just one of the objected given by the attorneys to the [¶] asked question that During the trial, the questions witnesses. 26 a or moved I to ruled strike on the If I sustained an If the witness 1 was not permitted to answer, do not guess what the answer 2 might have been or why I ruled as I did. 3 The “jury is presumed to follow 4 (RT 5 instructions[,]” Weeks v. Angelone, 528 U.S. 225, 234 (2000); 6 Blueford v. Arkansas, 132 S. Ct. 2044, 2051 (2012), and Petitioner 7 has provided the Court with “no reason to believe that the jury in 8 this 9 instructions.” 3706; case CT 249-50). was incapable of obeying the [trial its court’s] Miller, 483 U.S. at 766 n.8; see also Boyde, 494 10 U.S. at 384 (“[A]rguments of counsel generally carry less weight 11 with a jury than do instructions from the court.”). 12 Petitioner’s allegation that the prosecutor committed misconduct 13 in questioning him about observing the slaughtering of animals is 14 without merit. 15 Cir. 2014) (“The prosecutor’s comment did not materially affect 16 the fairness of the proceedings because the trial court sustained 17 the defendant’s objection, and the trial court instructed the jury 18 that ‘[s]tatements made by the attorneys during trial are not 19 evidence.’ 20 instructions from judges.”); United States v. Tham, 665 F.2d 855, 21 860 22 statements 23 defendant’s objections and properly instructed the jury regarding 24 prosecutor’s comments). (9th Accordingly, See Trillo v. Biter, 769 F.3d 995, 999-1000 (9th We presume that juries listen to and follow curative Cir. 1981) were (defendant’s “meritless” when objections district to prosecutor’s court sustained 25 26 Finally, for the reasons discussed above, Petitioner’s 27 “allegations of prosecutorial misconduct do not rise to the level 28 of a due process violation even when considered in the aggregate.” 27 1 Wood v. Ryan, 693 F.3d 1104, 1116-17 (9th Cir. 2012); see also 2 Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because we 3 conclude that no error of constitutional magnitude occurred, no 4 cumulative prejudice is possible.”). 5 courts’ 6 unreasonable application of, clearly established federal law. rejection of Ground Two Accordingly, the California was not contrary to, or an 7 8 C. 9 Petitioner Is Not Entitled To Relief On His Confrontation Clause Claim 10 11 In Ground Three, Petitioner alleges that admission of expert 12 witness testimony about DNA evidence violated his Sixth Amendment 13 right to confront the witnesses against him. 14 Mem. at 22-37). (Petition at 7; Reply 15 16 1. Background 17 18 19 The California Court of Appeal found the following facts underlying this claim: 20 21 [Aimee] Rogers[, an analyst for Orchard Cellmark,] 22 testified at a hearing under [California] Evidence Code 23 [§] 402[9] about the procedures at the Orchid Cellmark 24 laboratory 25 explained that automation specialists placed evidence 26 27 28 for extracting and analyzing DNA. She Cal. Evid. Code § 402 provides, in pertinent part, that “[t]he court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury[.]” Cal. Evid. Code § 402(b). 9 28 1 samples 2 electropherogram, 3 Worksheets of the technician’s work and quality assurance 4 tests were kept. 5 report (exhibit 45) based on her analysis of 350 pages 6 of raw data generated by the machines from materials 7 collected 8 locations at the crime scene. 9 observed the creation of the data and the work of the 10 technicians, although she reviewed all the worksheets 11 and found no violations of protocols or errors. into from machines known which as a then visual generated DNA an printout. Rogers testified that she prepared a Bradley, [Petitioner], and various She had not personally 12 13 [Petitioner] argued that admission of this evidence 14 violated his Sixth Amendment confrontation rights. 15 trial court concluded that the technicians who took part 16 in the testing process, but who did not testify, were 17 “not themselves reporting any objective facts.” 18 court concluded that they were “submitting the samples 19 to machines, which are generating information, which is 20 now to be used by the expert.” 21 testify to her analysis of the DNA. The The It allowed Rogers to 22 23 Rogers then testified before the jury that Bradley’s 24 DNA was found on the knife recovered from [Petitioner’s] 25 apartment. [Petitioner’s] DNA was found on samples taken 26 from the bathroom sink and soap dispenser in Bradley’s 27 apartment. 28 bathroom sink and soap dispenser belonged to anyone else The probability that the DNA found on the 29 1 but [Petitioner] in the southwest Hispanic population 2 was one in 115.4 quadrillion. The probability of a 3 random the 4 having the same DNA profile as Bradley’s as found on the 5 sink, soap dispenser and knife was one in 438 trillion, 6 one in 2.909 quadrillion in the Caucasian population, 7 one 8 population, one in 34.31 quadrillion in the southwest 9 Hispanic population, and one in 229.4 quadrillion in the 10 in unrelated 10.25 individual quadrillion in in the Black population southeast Hispanic Asian population.[10] 11 12 (Lodgment 4 at 17-18 (footnotes added); see also RT 1802-95). 13 14 2. California Court of Appeal’s Opinion 15 The California Court of Appeal denied Petitioner’s claim, 16 17 stating: 18 “The 19 Sixth Amendment of the United States 20 Constitution grants a criminal defendant the right to 21 confront adverse witnesses.” In [Crawford v. Washington, 22 541 U.S. 36 (2004)], “the court created a general rule 23 that the prosecution may not rely on ‘testimonial’ out- 24 of-court statements unless the witness is unavailable to 25 testify and the defendant had a prior opportunity for 26 27 28 Rodgers testified that the world’s population is 6.6 billion so a quadrillion “would be several hundred thousand times the world’s population” and a trillion would be “a hundred times the world’s population.” (RT 1891-92). 10 30 1 cross-examination.” 2 applied its Crawford holding in three cases involving 3 laboratory 4 [Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009); 5 Bullcoming 6 Williams v. Illinois, 132 S. Ct. 2221 (2012)]. 7 agreement was reached by the justices in these cases, 8 the first two of which were decided 5–4, although in each 9 case Justice Thomas found a distinct reason for agreeing The United States Supreme Court findings v. New of nontestifying Mexico, 564 U.S. 647 10 to the outcome of the majority in each. 11 there 12 analysts: (2011), and Little plurality. was no majority opinion, but a In Williams, four justice 13 14 The California Supreme Court addressed this quartet 15 of cases in a trilogy of cases decided in 2012: [People 16 v. Lopez, 55 Cal. 4th 569 (2012), People v. Dungo, 55 17 Cal. 4th 608 (2012), and People v. Rutterschmidt, 55 Cal. 18 4th 650 (2012)]. 19 approaches adopted by the United States Supreme Court. 20 The court recognized that the United States Supreme Court 21 had not agreed upon a definition of “testimonial” for 22 confrontation clause purposes. 23 the quartet of United States Supreme Court cases, the 24 Lopez 25 required 26 statement 27 formality or solemnity; and 2) “all nine high court 28 justices court to It carefully examined the various identified find must agree a have that Based on its reading of two statement been an made “critical testimonial: with some out-of-court 31 components” 1) degree statement the of is 1 testimonial only if its primary purpose pertains in some 2 fashion to a criminal prosecution, but they do not agree 3 on what the statement’s primary purpose must be.” 4 5 The Supreme Court in Lopez reasoned that it need 6 not consider the primary purpose of a nontestifying 7 analyst’s 8 because it concluded that the critical portions of the 9 report laboratory “were not report made on with the blood alcohol requisite level, degree of 10 formality or solemnity to be considered testimonial.” In 11 Lopez, a report written by a nontestifying analyst was 12 admitted 13 testified at trial that he had reviewed the laboratory 14 report and stated the conclusion of the analyst who 15 prepared that report. 16 say that based on his own experience and review, he had 17 reached the same conclusion. into evidence. A different criminologist The testifying analyst went on to 18 19 Five pages of the laboratory report at issue in 20 Lopez were comprised “entirely of data generated by a 21 gas 22 quality control, and the concentration of alcohol in a 23 blood sample.” 24 signature or initials appeared on each of these five 25 pages, there was no statement, express or implied by him 26 on 27 generated 28 implicate the Sixth Amendment right to confrontation. chromatography any of machine to measure calibrations, Although the nontestifying analyst’s them. printouts The are Court concluded not testimonial 32 that and machine do not 1 While it acknowledged that the United States Supreme 2 Court has not yet addressed this question, the Lopez 3 court agreed with federal appellate courts which had 4 upheld the use of such printouts. 5 unlike a person, a machine cannot be cross-examined, here 6 the 7 machine-generated printouts . . . did not implicate the 8 Sixth Amendment’s right to confrontation.” prosecution’s introduction It reasoned: “Because, into evidence of the 9 10 Factual distinctions between our case and Lopez 11 bolster the conclusion that Rogers’ testimony was not 12 barred by the Sixth Amendment. 13 received into evidence was prepared by Rogers herself, 14 based on raw 15 described as 16 automation technologists. 17 not admitted into evidence. 18 reasoning of Lopez, Rogers’ reliance on the machine- 19 generated raw data did not violate the [C]onfrontation 20 [C]lause. data generated “robots” Here, the only report by machines operated by which she nontestifying The 350 pages of raw data were We conclude that under the 21 22 The first page of the chart on which the testifying 23 analyst relied in Lopez contained handwritten notations 24 by 25 assistant, 26 undisputed that the information that the defendant’s 27 blood sample contained .09 percent alcohol was admitted 28 for its truth. both the nontestifying who also did analyst not and testify.[fn. a laboratory 2] It was The Lopez majority concluded that the 33 1 notations did not meet the requirements that they be made 2 with formality or solemnity. 3 analyst who performed the analysis nor the lab assistant 4 signed, certified, or swore to the contents of page one 5 of the report. 6 signed by Chief Justice Cantil–Sakauye, Justice Baxter 7 and Justice Chin, agreed that the logsheet notations were 8 not made with sufficient formality or solemnity to be 9 deemed testimonial. Neither the nontestifying Justice Werdegar, in a concurring opinion 10 11 Respondent argues, and we agree, that there is no 12 evidence that the raw data on which Rogers relied was 13 prepared with the requisite formality or solemnity. 14 is 15 declaration, 16 circumstances, we conclude the trial court did not err 17 in allowing Rogers to testify to her own opinions based 18 on the raw data generated by other technicians using 19 various machines. there here evidence or other of a sworn formality. Nor certification, Under these 20 21 (Lodgment 4 at 18-21). 22 23 3. Analysis 24 25 The Sixth Amendment’s Confrontation Clause provides that “[i]n 26 all criminal prosecutions, the accused shall enjoy the right . . . 27 to be confronted with the witnesses against him. . . .” 28 Const., Amend. VI. U.S. The Confrontation Clause bars “admission of 34 1 testimonial statements of a witness who did not appear at trial 2 unless he was unavailable to testify, and the defendant . . . had 3 a prior opportunity for cross-examination.” 4 53-54; 5 Confrontation Clause applies only to “‘witnesses’ against the 6 accused, i.e., those who ‘bear testimony.’” 7 51 (citation omitted); Davis, 547 U.S. at 823-24. 8 in turn, is typically a solemn declaration or affirmation made for 9 the purpose of establishing or proving some fact.” Davis v. Washington, 547 U.S. Crawford, 541 U.S. at 813, 821 (2006). The Crawford, 541 U.S. at “‘Testimony,’ Crawford, 541 10 U.S. at 51 (citation and some internal punctuation omitted); Davis, 11 547 U.S. at 824. As the Davis court explained: 12 13 [a] critical portion of [Crawford’s] holding . . . is 14 the phrase “testimonial statements.” 15 this sort cause the declarant to be a “witness” within 16 the meaning of the Confrontation Clause. 17 testimonial character of the statement that separates it 18 from other hearsay that, while subject to traditional 19 limitations upon hearsay evidence, is not subject to the 20 Confrontation Clause. Only statements of It is the 21 22 Davis, 547 U.S. at 821 (citation omitted). 23 statements do not implicate the Confrontation Clause. 24 California, 554 U.S. 353, 376 (2008); Whorton v. Bockting, 549 U.S. 25 406, 420 (2007). 26 the 27 establishing the truth of the matter asserted.” 28 at 59 n.9; see also United States v. Wahchumwah, 710 F.3d 862, 871 use of Thus, nontestimonial Giles v. Moreover, the Confrontation Clause “does not bar testimonial statements 35 for purposes other than Crawford, 541 U.S. 1 (9th Cir. 2013) (Crawford “applies only to testimonial hearsay, 2 and ‘does not bar the use of testimonial statements for purposes 3 other 4 (citation 5 violation is subject to harmless error analysis. 6 Arsdall, 7 violation is harmless, and does not justify habeas relief, unless 8 it had substantial and injurious effect or influence in determining 9 the jury’s verdict. 10 than establishing omitted)). 475 U.S. 673, the truth of Additionally, 684 (1986). the a A matter asserted.’” Confrontation Clause Delaware v. Van Confrontation Clause Brecht, 507 U.S. at 623; Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir. 2011). 11 12 Rogers, a DNA analyst at Orchid Cellmark laboratory, testified 13 about the laboratory’s procedures for extracting and analyzing DNA 14 and the report she personally prepared analyzing the raw data 15 gathered during DNA testing. 16 that Rogers’s testimony violated the Confrontation Clause because, 17 even though Rogers personally analyzed and prepared a report based 18 on raw data, she did not personally perform or supervise the 19 preliminary steps through which the raw data was generated, such 20 as DNA extraction, amplification and quantification. 21 at 22-37; see also RT 1811-12, 1848). (RT 1809-95). Petitioner contends (Reply Mem. 22 23 The state courts’ rejection of Petitioner’s claim was not 24 contrary to, or an unreasonable application of clearly established 25 federal 26 laboratory 27 seized from a petitioner were cocaine constituted “testimonial 28 statements” under Crawford, and that “[a]bsent a showing that the law. The Supreme technicians’ Court affidavits 36 has held that confirming admission that of substances 1 analysts were unavailable to testify at trial and that petitioner 2 had a prior opportunity to cross-examine them, petitioner was 3 entitled to be confronted with the analysts at trial.” 4 Diaz, 557 U.S. at 310-11 (emphasis and internal quotation marks 5 omitted). The Supreme Court has also determined that a forensic 6 analyst’s certified 7 testimonial, and its admission into evidence through the “surrogate 8 testimony” of a scientist who had neither performed nor observed 9 the testing report procedure of blood violated the alcohol Melendez- analysis Confrontation was Clause. 10 Bullcoming, 564 U.S. at 659-65. 11 the Supreme Court’s more recent decision in Williams,11 provides 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 But neither of these cases, nor 11 In Williams, a deeply divided Supreme Court held that an expert’s testimony “that a DNA profile produced by an outside laboratory, Cellmark, matched a profile produced by the state police lab using a sample of petitioner’s blood” did not violate the Confrontation Clause. Williams, 132 S. Ct. at 2227-44 (plurality opinion) & 2255-64 (Thomas, J., concurring). “When a fragmented [Supreme] Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. . . .’” Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted). “[W]hen applying Marks to a fractured Supreme Court decision, [the Court] look[s] to those opinions that concurred in the judgment and determine whether one of those opinions sets forth a rationale that is the logical subset of other, broader opinions. When, however, no ‘common denominator of the Court’s reasoning’ exists, we are bound only by the ‘specific result.’” United States v. Davis, 825 F.3d 1014, 1028 (9th Cir. 2016) (en banc). In Williams, “there is no such common denominator between the plurality opinion and Justice Thomas’s concurring opinion. Neither of these opinions can be viewed as a logical subset of the other. Rather, Justice Thomas expressly disavows what he views as ‘the plurality’s flawed analysis[.]’” United States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir. 2013) (citation omitted); see also Williams, 132 S. Ct. at 2265 (Kagan, J., dissenting) (explaining that although there are “five votes to approve the admission of the Cellmark report,” the Supreme Court “cannot settle on a reason why” the report’s admission does not violate the Confrontation Clause). “As Williams does not yield a 37 1 “clearly established federal law” applicable here – where the 2 laboratory analyst who wrote the DNA report received into evidence 3 testifies, but the analyst’s report “was based on [350 pages of] 4 raw data [not admitted into evidence] generated by machines which 5 she described as ‘robots’ operated by nontestifying automation 6 technologists.”12 7 at 311 n.1 (“[W]e do not hold, and it is not the case, that anyone 8 whose testimony may be relevant in establishing the chain of 9 custody, authenticity of the sample, or accuracy of the testing 10 device, must appear in person as part of the prosecution’s case.”); 11 Bullcoming, 12 (Bullcoming is not a case in which the testifying witness had a 13 14 15 16 17 18 564 (Lodgment 4 at 20); see Melendez-Diaz, 557 U.S. U.S. at 672-73 20 21 22 23 24 25 26 27 28 J., concurring) ‘narrowest’ holding that enjoys the support of five Justices, it does not provide a controlling rule useful to resolving this case.” Duron-Caldera, 737 F.3d at 994 n.4; see also United States v. James, 712 F.3d 79, 95 (2d Cir. 2013) (“Williams does not, as far as we can determine, using the Marks analytic approach, yield a single, useful holding relevant to the case before us. It is therefore for our purposes confined to the particular set of facts presented in that case.”). Moreover, Crawford “applies only to testimonial hearsay,” Wahchumwah, 710 F.3d at 871, and “machine statements aren’t hearsay.” United States v. Lizarraga-Tirado, 789 F.3d 1107, 1110 (9th Cir. 2015); see also United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (“A physician may order a blood test for a patient and infer from the levels of sugar and insulin that the patient has diabetes. The physician’s diagnosis is testimonial, but the lab’s raw results are not, because data are not ‘statements’ in any useful sense. . . . Thus, . . . the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself.”); United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007) (“[W]e reject the characterization of the raw data generated by the lab’s machines as statements of the lab technicians who operated the machines. The raw data generated by the diagnostic machines are the ‘statements’ of the machines themselves, not their operators. But ‘statements’ made by machines are not out-of-court statements made by declarants that are subject to the Confrontation Clause.” (italics in original)). 12 19 (Sotomayor, 38 1 connection to the scientific test at issue or “in which an expert 2 witness was asked for his independent opinion about underlying 3 testimonial 4 evidence”); Flournoy v. Small, 681 F.3d 1000, 1004-05 (9th Cir. 5 2012) (no clearly established federal law holds that a forensic 6 laboratory analyst’s testimony based on the tests and reports of 7 other crime lab employees violates the Confrontation Clause where 8 the testifying analyst participated in and reviewed the crime lab’s 9 work, even though she did not personally conduct all of the testing 10 herself); Grim v. Fisher, 816 F.3d 296, 309 (5th Cir.) (“[T]he 11 Supreme 12 involvement with the forensic testing is required of an in-court 13 witness 14 certification, 15 Bullcoming.”), cert. denied, __ S. Ct. __, 2016 WL 4083026 (Oct. 16 3, 2016); United States v. James, 712 F.3d 79, 102 (2d Cir. 2013) 17 (“As Justice Breyer pointed out in Williams, it is still unsettled 18 under 19 jurisprudence whether there is a ‘logical stopping place between 20 requiring the prosecution to call as a witness one of the laboratory 21 experts who worked on the matter and requiring the prosecution to 22 call all of the laboratory experts who did so.’” (quoting Williams, 23 132 S. Ct. at 2246 (Breyer, J., concurring)), cert. denied, 134 S. 24 Ct. 2660 (2014). 25 that the admission of [Rogers’s] testimony . . . did not violate 26 the Confrontation Clause was not contrary to or an unreasonable 27 application of clearly established federal law.” 28 F.3d at 1004; see also Wright v. Van Patten, 552 U.S. 120, 126 reports Court offered the has to that not [Supreme] not clearly prove beyond were a themselves established particular what was Court’s fact deemed recent admitted what in a into degree of testimonial insufficient Confrontation in Clause Accordingly, “[t]he California court’s decision 39 Flournoy, 681 1 (2008) (“Because our cases give no clear answer to the question 2 presented, state court 3 unreasonabl[y] appli[ed] clearly established Federal law. Under 4 the 5 unauthorized.” (citation and internal quotation marks omitted; 6 brackets in original)); Stenson v. Lambert, 504 F.3d 873, 881 (9th 7 Cir. 2007) (“Where the Supreme Court has not addressed an issue in 8 its holding, a state court adjudication of the issue not addressed 9 by the Supreme Court cannot be contrary to, or an unreasonable 10 . explicit . . it terms cannot of § be said 2254(d)(1), that the therefore, relief is application of, clearly established federal law.”). 11 12 D. Petitioner Is Not Entitled To Relief On His Miranda Claim 13 14 In Ground Four, Petitioner claims a police officer 15 transporting him to jail improperly questioned him in violation of 16 Miranda. (Petition at 8; Reply Mem. at 37-43). 17 18 1. Background 19 20 21 The California Court of Appeal set forth the following facts underlying this claim: 22 23 Detective Frettlhor testified at an Evidence Code 24 [§] 402 hearing he advised [Petitioner], in Spanish, of 25 his Miranda rights. 26 Olympic 27 [Petitioner] 28 interview ended at approximately 4:00 a.m. station said This was during an interview at the on January he 5, understood 40 2010 his at 2:30 rights. a.m. The At that 1 point, Detective Matthew Gares arranged for Officer Dana 2 Grant and her partner to transport 3 booking. 4 been Mirandized, interviewed, and was ready for booking. 5 While at the Twin Towers jail facility, [Petitioner] 6 initiated a conversation with Officer Grant in English. 7 The conversation culminated in his statement that he had 8 a knife in his possession when he went to Bradley’s 9 apartment on the day of the murder because he was a [Petitioner] for He told Officer Grant that [Petitioner] had 10 recycler. 11 have been admitted. [Petitioner] argues this statement should not 12 13 The trial court found that [Petitioner] was properly 14 advised of his Miranda rights and that he waived them. 15 Defense counsel argued that [Petitioner] should have been 16 readvised of his Miranda rights by Officer Grant because 17 there was a change in interrogator, a change of location, 18 and 19 advised 20 [Petitioner] was not sophisticated in that he used a 21 Spanish interpreter, did not grow up here, and had no 22 formal education. 23 history involving prior contacts with the police and 24 familiarity with Miranda warnings. 25 Officer Grant was mistaken in believing that [Petitioner] 26 understood everything she said to him in English. 27 prosecutor 28 between the time [Petitioner] was advised of his Miranda [Petitioner] of his argued was not Miranda reminded rights. that She he had been argued that He did not have an extensive criminal that only 41 a few She contended that hours had The passed 1 rights, and [Petitioner] initiated the conversation with 2 Officer Grant by asking how long he would be in jail. 3 The 4 arrested in 2007 on a narcotics charge and on one other 5 occasion. prosecutor observed that [Petitioner] had been 6 7 The trial court ruled that Officer Grant would be 8 allowed to testify to [Petitioner’s] statements because 9 he had been properly advised of his rights and had waived 10 his right to remain silent only a few hours before. 11 Defense counsel then argued that [Petitioner’s] question 12 about how long he would be in jail should not be seen as 13 allowing Officer Grant to start questioning him about 14 the crime. The court said it would review the relevant 15 authority. The parties do not advise us that the court 16 changed 17 testified about the statements. its ruling thereafter, and Officer Grant 18 19 Before the jury, Officer Grant testified that she 20 was assigned to transport [Petitioner] to jail. 21 at 22 English how long he would be in jail. 23 not know much about the case, but that it was a serious 24 charge. 25 [Petitioner] said he met Bradley when he was 16, got 26 drunk with him, and then had sex with him, which made 27 him feel ashamed and dirty. 28 recently ([Petitioner] was then 25 years old) and started the Twin Towers jail, [Petitioner] asked While her in She said she did She asked how long he had known “the other guy.” 42 They had lost touch until 1 having sex again. 2 gotten 3 responded “he already had it with him because he was a 4 recycler.” the She asked [Petitioner] how he had knife, and testified that [Petitioner] This was the end of the conversation. 5 6 (Lodgment 4 at 21-22; see also RT 1896-98, 2104-25, 2127-32, 2458- 7 66). 8 9 2. California Court of Appeal’s Opinion 10 11 12 The California Court of Appeal rejected Petitioner’s claim, stating: 13 14 “After a valid Miranda waiver, readvisement prior 15 to continued custodial interrogation is unnecessary ‘so 16 long 17 subsequent interrogation is ‘reasonably contemporaneous’ 18 with the prior knowing and intelligent waiver.” 19 necessity 20 circumstances, including the amount of time that has 21 elapsed since the first waiver, changes in the identity 22 of the interrogating officer and the location of the 23 interrogation, any reminder of the prior advisement, the 24 defendant’s experience with the criminal justice system, 25 and ‘[other] indicia that the defendant subjectively 26 underst[ood] and waive[d] his rights.’” . . . 27 as a proper for warning has readvisement * * 43 given, depends * 28 been upon and “the The various 1 Here, [Petitioner] acknowledges that the five hours 2 that elapsed between the time he was advised of his 3 Miranda rights by Detective Frettlhor and his admission 4 about the knife to Officer Grant is shorter than the time 5 frames found sufficiently contemporaneous in a number of 6 cases which did not require readvisement. 7 that 8 location to a different officer. He also contends that 9 he his his was second statement unsophisticated, was citing made But he argues in a different limited English 10 skills, lack of education, and childhood in Mexico. 11 discounts his two prior arrests for narcotics-related 12 offenses. 13 [Petitioner] to believe the questioning by Officer Grant 14 was not something that would be used against him since 15 it was done in a police car, in English, by a different 16 interrogator, and without any reference to Miranda.” He asserts: “It would be reasonable He for 17 18 Officer Grant testified at trial that [Petitioner] 19 initiated the conversation with her “[w]hile at Twin 20 Towers” when she was “next to [him].” 21 been arrested and was waiting for booking in a jail 22 facility, accompanied by a police officer. 23 prior arrests from which we can reasonably assume he was 24 familiar 25 warnings. 26 rights and waived them. 27 conversation with Officer Grant. 28 these circumstances, we find no error in admission of with criminal procedures, [Petitioner] had He had two including Miranda Only five hours before, he had been given his Significantly, he initiated the 44 Under the totality of 1 his statement to Officer Grant about bringing a knife to 2 the crime scene. 3 4 (Lodgment 4 at 23-24 (citations omitted)). 5 6 3. Analysis The Fifth 7 8 9 Amendment privilege against self-incrimination provides that “[n]o person . . . shall be compelled in any criminal 10 case to be a witness against himself.” In Miranda, the Supreme 11 Court established a prophylactic procedural mechanism to safeguard 12 a defendant’s Fifth Amendment privilege against the inherently 13 coercive effects of custodial interrogation. 14 457-58. 15 in custody, law enforcement officials must inform the suspect that: Miranda, 384 U.S. at Thus, Miranda requires that before questioning a suspect 16 17 He has the right to remain silent, that anything he 18 says can be used against him in a court of law, that he 19 has the right to the presence of an attorney, and that 20 if he cannot afford an attorney one will be appointed 21 for him prior to any questioning if he so desires. 22 23 Id. at 444, 478-79; Thompkins, 560 U.S. at 380. 24 25 Petitioner does not dispute the 26 Miranda 27 interviewed him at the police station. 28 at 37-43). waiver, which was made validity before of his Detective initial Frettlhor (Petition at 8; Reply Mem. Rather, Petitioner argues that Officer Grant should 45 1 have re-administered Miranda warnings before questioning him while 2 en route from the police station to jail. (Reply Mem. at 38-43). 3 4 Petitioner has not identified, and the Court is not aware, of 5 any clearly established federal law requiring Officer Grant to re- 6 administer Miranda warnings in the circumstances presented here. 7 See Thompkins, 560 U.S. at 386 (“Police are not required to rewarn 8 suspects from time to time.”); United States v. Rodriguez-Preciado, 9 399 F.3d 1118, 1128 (9th Cir. 2005) (Rodriguez-Preciado “does not 10 cite a Supreme Court or Ninth Circuit decision — and we are aware 11 of none — holding that statements made after Miranda warnings are 12 administered are nonetheless inadmissible if the warnings become 13 ‘stale.’”). To the contrary, “‘[t]here is no requirement that an 14 accused continually 15 intelligently waived them.’” 16 1305, 1312 (9th Cir. 1995) (citations omitted); McClain v. Hill, 17 52 F. Supp. 2d 1133, 1141 (C.D. Cal. 1999). 18 rewarning is not required simply because there is a break in 19 questioning[,]” People of Territory of Guam v. Dela Pena, 72 F.3d 20 767, 769-70 (9th Cir. 1995); Rodriguez-Preciado, 399 F.3d at 1128; 21 see also Wyrick v. Fields, 459 U.S. 42, 47 (1982) (per curiam) 22 (defendant, who requested polygraph and waived Miranda rights, did 23 so not only for the polygraph but also “validly waived his right 24 to have counsel present at ‘post-test’ questioning, unless the 25 circumstances changed so seriously that his answers no longer were 26 voluntary, or unless he no longer was making a ‘knowing and 27 intelligent relinquishment or abandonment’ of his rights.”), and 28 courts have determined that breaks of much longer than the five be reminded of his rights once he has United States v. Andaverde, 64 F.3d 46 Furthermore, “[a] 1 hours at issue here did not render a statement inadmissible. 2 e.g., Rodriguez-Preciado, 399 F.3d at 1128 (upholding admissibility 3 of 4 warnings were given and waived); Dela Pena, 72 F.3d at 770 (fifteen 5 hours between Miranda warning and waiver and confession did not 6 render confession inadmissible); Andaverde, 64 F.3d at 1313 (one 7 day interval between Miranda warning and waiver and incriminating 8 statement did not render statement inadmissible). statements made approximately sixteen hours after See, Miranda 9 10 Petitioner nevertheless asserts that re-warning was required 11 because a different officer questioned him in a different location. 12 (Reply Mem. at 39-42). 13 efficacy 14 interrogated by another[,]” even if the interrogation takes place 15 in a different location than the warning. 16 1312-13; see also Rodriguez-Preciado, 399 F.3d at 1129 (change in 17 interrogator and change in location (from motel to jail) did not 18 require rewarning); Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th 19 Cir. 1984) (“[W]e do not view a confession given less than four 20 hours after the issuance of Miranda warnings inadmissible because 21 of 22 warnings 23 location). 24 in 25 administered through” his conversation with Officer Grant and 26 “there 27 [Petitioner] the impression that his rights had changed in a 28 material way.” the if a defendant failure to were given custody But “a Miranda warning does not lose its is reissue by a warned the by one and then Andaverde, 64 F.3d at even warnings” different officer officer though in a Miranda different This is particularly true here since Petitioner “was continually were no from intervening the events time warnings which might Rodriguez-Preciado, 399 F.3d at 1129. 47 were have first given 1 Accordingly, the California courts’ rejection of this claim 2 was not contrary to, or an unreasonable application of, clearly 3 established federal law. 4 5 6 E. Petitioner Is Not Entitled To Relief On His Claim That The Trial Court Inadequately Responded To A Jury Question 7 8 In Ground Five, Petitioner claims the trial court failed to 9 adequately respond to the jury’s question about the difference 10 between first and second degree murder. 11 at 43-49). (Petition at 8; Reply Mem. 12 13 1. Background 14 15 16 The California Court of Appeal found the following facts underlying this claim: 17 18 The jury was given CALCRIM Nos. 520 and 521. 19 given, CALCRIM No. 520 was titled: “First or Second 20 Degree 21 § 187).[fn. 3] Murder With Malice Aforethought (Pen. As Code, 22 As given, CALCRIM No. 520 read: “The defendant 23 [Fn. 3] 24 is charged with murder. 25 is guilty of this crime, the People must prove that: [¶] 26 1. The defendant committed an act that caused the death 27 of another person; [¶] 2. When the defendant acted, he 28 had a state of mind called malice aforethought; [¶] AND [¶] 48 To prove that the defendant 1 [¶] 3. He killed without lawful excuse or justification. 2 [¶] 3 malice and implied malice. 4 to establish the state of mind required for murder. 5 The defendant acted with express malice if he unlawfully 6 intended to kill. 7 malice if: [¶] 1. He intentionally committed an act; [¶] 8 2. The natural and probable consequences of the act were 9 dangerous to human life; [¶] 3. At the time he acted, he 10 knew his act was dangerous to human life; [¶] AND [¶] 4. 11 He deliberately acted with conscious disregard for human 12 life. 13 or ill will toward the victim. 14 must be formed before the act that causes death is 15 committed. 16 passage of any particular period of time. 17 decide that the defendant committed murder, you must then 18 decide whether it is murder of the first or second 19 degree.” There are two kinds of malice aforethought, express [¶] [¶] Proof of either is sufficient [¶] The defendant acted with implied Malice aforethought does not require hatred It is a mental state that It does not require deliberation or the [¶] If you 20 As given, CALCRIM No. 521 was titled: “First Degree 21 22 Murder (Pen. Code, § 189)” 23 guilty of first degree murder if the People have proved 24 that 25 premeditation. 26 intended to kill. 27 he carefully weighed the considerations for and against 28 his choice and, knowing the consequences, decided to he acted willfully, It read: The defendant is deliberately, and with The defendant acted willfully if he The defendant acted deliberately if 49 1 kill. 2 decided to kill before completing the act that caused 3 death. 4 considering whether to kill does not alone determine 5 whether the killing is deliberate and premeditated. The 6 amount and 7 premeditation 8 according to the circumstances. 9 rashly, impulsively, or without careful consideration is The defendant acted with premeditation if he [¶] of The length of time the person spends time may required vary from for deliberation person to person and A decision to kill made 10 not deliberate and premeditated. 11 cold, calculated decision to kill can be reached quickly. 12 The test is the extent of the reflection, not the length 13 of time. 14 based on express or implied malice are explained in 15 CALCRIM No. 520, First or Second Degree Murder With 16 Malice Aforethought. 17 proving beyond a reasonable doubt that the killing was 18 first degree murder rather than a lesser crime. 19 People have not met this burden, you must find the 20 defendant not guilty of first degree murder.” [¶] On the other hand, a The requirements for second degree murder [¶] The People have the burden of If the 21 22 During deliberations, the jury sent the following 23 note to the court: “‘We need a clear definition, please, 24 between first and second degree murder.’” 25 informed counsel that it had asked the jury to be more 26 specific. 27 due to instructions, its wording, in particular, page 9 28 re: 521 mentioned explanation in 520, but we need some The court The jury responded: “‘There is some confusion 50 1 clarification.’” 2 referred to the following language in CALCRIM number 521: 3 “‘Requirements 4 expressed or implied malice, are explained in CALCRIM 5 number 520, first or second degree murder with malice 6 aforethought.’” 7 out because there’s nothing in 520 that makes mention of 8 second degree murder or expressed or implied malice.” The court concluded that this question for second degree murder, based on The court observed: “[I]t does stand 9 10 After further colloquy, it was agreed the jury would 11 be brought into the courtroom. The court told the jury 12 there reread 13 instructions, or to have the foreperson ask for further 14 clarification. 15 couple times already, the instructions. 16 the definition of second degree is found in 520.” 17 court interjected that this was correct. 18 continued: 19 degree.” 20 titles of the instructions and asked if this would help 21 deliberations. 22 court explained that titles of instructions are used only 23 for quick reference. 24 wanted to go back into the jury room to ask the fellow 25 jurors whether further clarification was needed. 26 additional questions or notes were sent by the jury. were two “But options, to the particular The foreperson said: “We’ve read them a 520, the title is 521 states that The The foreperson first and second The court suggested that the jury ignore the The foreperson answered: “Right.” The He inquired whether the foreperson 27 28 51 No 1 The trial court judge told the jury that he would 2 be absent the next day, but if it wanted to continue 3 deliberations, 4 presiding. 5 apparently this was the choice of the jurors because they 6 resumed deliberations the next day with a different trial 7 court judge presiding. 8 the 9 understanding that there was an issue about the jury and it could do so with another judge Although it is not reflected in the record, presence of the At the outset of the day, outside jury, that judge stated his 10 asked counsel for background. 11 the foreperson’s concern about the title of CALCRIM No. 12 520, but said it was not clear exactly what the jury was 13 unclear about. 14 uncertain as to whether the trial judge’s suggestion to 15 ignore the titles of the instructions cured the jury’s 16 confusion. 17 titles for instructions are not part of the instruction 18 to be considered by the jury. 19 The 20 questions since the direction to ignore the titles the 21 previous day. 22 court said it wanted to be certain that there was no 23 pending jury question. 24 pending jury question, it seems to be prudent just to 25 allow the jury to continue to deliberate based upon 26 whatever answer or response Judge Landin gave, and if 27 they have a need for further clarification, we can always 28 address it if it comes to pass.” court Defense counsel recounted She said that overnight she had become The substitute judge indicated that the asked whether the The prosecutor agreed. jury had sent out The prosecutor said that it had not. any The It indicated: “If there’s no 52 1 Defense counsel asked the court to make it clear 2 that CALCRIM No. 520 does describe first and second 3 degree murder and to remind the jury that the third 4 element, 5 homicide, was addressed in other instructions the jury 6 already had received. 7 do so since it had not heard the previous discussion with 8 the jurors or the colloquy between Judge Landin and 9 counsel. whether it was a justifiable or excusable The court expressed reluctance to It was not inclined to “bring the jury out and 10 tell them something that I don’t know needs to be told.” 11 The prosecutor concurred. 12 it would be willing to respond to any further question 13 from the jury after consultation with counsel. 14 that day, following a recess, the jury reached a guilty 15 verdict on second degree murder. The court made it clear that Later 16 17 (Lodgment 4 at 25-27 (italics in original); see also CT 246, 255- 18 56; RT 3912-14, 4204-15, 4501-06). 19 20 2. California Court of Appeal’s Opinion The California 21 22 Court of 23 allegations 24 construing Appeal, Petitioner’s Petitioner’s claim, stating: as raising only a state law claim, rejected 25 26 The jury was understandably confused about the 27 definition of second degree murder as treated in CALCRIM 28 Nos. 520 and 521, but [Petitioner] is not raising a 53 1 separate issue of instructional error. 2 argument is that the trial court did not adequately 3 respond to the jury’s questions. 4 required the jury to determine whether [Petitioner] acted 5 with malice aforethought, and if it found he did, whether 6 the killing was premeditated, willful, or deliberate in 7 order to eliminate first degree murder, and then consider 8 second degree murder, an analysis made more difficult by 9 these instructions. Instead, his These instructions But the instructions made it clear 10 that if the jury found that [Petitioner] acted with 11 malice aforethought, he was guilty of either first or 12 second degree murder rather than voluntary manslaughter 13 or was not guilty because the killing was a justified 14 homicide on a self-defense theory. 15 reject 16 prejudicial error in the trial court’s response to the 17 jury’s questions. 18 ample opportunity to express any continuing confusion 19 about these instructions and it did not. 20 support 21 regarding prejudice. 22 the 23 defense, or imperfect self-defense. the first for degree murder Since the jury did theory, we find no In addition, the court gave the jury [Petitioner’s] instructions on There is no speculative argument The jury had no questions about voluntary manslaughter, self- 24 25 A claim that the trial court failed to adequately 26 answer a jury’s question under [P.C. §] 1138[13] is 27 13 28 P.C. § 1138 provides: 54 1 subject to the standard of [People v. Watson, 46 Cal. 2d 2 818 (1956)14]: whether the error “resulted in a reasonable 3 probability of a less favorable outcome.” 4 had to conclude that [Petitioner] acted with malice in 5 order to convict him of second degree murder, there is 6 no reasonable probability of a better outcome. Since the jury 7 8 (Lodgment 4 at 27 (citation omitted; footnotes added)). 9 10 3. Analysis 11 12 Instructional error warrants federal habeas relief only if 13 the “‘instruction by itself so infected the entire trial that the 14 resulting conviction violates due process[.]’” 15 Sarausad, 555 U.S. 179, 191 (2009) (citation and internal quotation 16 marks omitted); Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per 17 curiam). 18 Instead, Petitioner must show there was a “reasonable likelihood Waddington v. The instruction must be more than merely erroneous. 19 After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called. 20 21 22 23 24 25 26 27 28 “The Watson harmless error standard is the standard applied by California appellate courts in reviewing non-constitutional magnitude trial errors by determining whether ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” Merolillo v. Yates, 663 F.3d 444, 452 n.4 (9th Cir. 2011) (quoting Watson, 46 Cal. 2d at 836). 14 55 1 that the jury has applied the challenged instruction in a way that 2 violates the Constitution.” 3 and internal quotation marks omitted); Sarausad, 555 U.S. at 190- 4 91; see also Cupp v. Naughten, 414 U.S. 141, 146 (1973) (“Before a 5 federal court may overturn a conviction resulting from a state 6 trial in which [an allegedly faulty] instruction was used, it must 7 be established not merely that the instruction is undesirable, 8 erroneous or even ‘universally condemned,’ but that it violated 9 some right which was guaranteed to the defendant by the Fourteenth Further, McNeil, 541 U.S. at 437 (citations 10 Amendment.”). “[i]t is 11 instruction ‘may not be judged in artificial isolation,’ but must 12 be considered in the context of the instructions as a whole and 13 the trial record.” 14 Sarausad, 555 U.S. at 191. 15 occurred, federal habeas relief remains unwarranted unless the 16 error caused prejudice, i.e., unless it had a substantial and 17 injurious effect or influence in determining the jury’s verdict. 18 Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per curiam); Brecht, 19 507 U.S. at 623. well established that the McGuire, 502 U.S. at 72 (citation omitted); Moreover, if a constitutional error 20 21 Here, as the California Court of Appeal noted (Lodgment 4 at 22 28), Petitioner does not allege that the court provided erroneous 23 instructions to the jury. 24 see also People v. Johnigan, 196 Cal. App. 4th 1084, 1092 (2011) 25 (CALCRIM 520 is an “accurate statement[] of the law [regarding 26 second 27 complains that the trial court did not adequately respond to the degree murder] (Petition at 8; Reply Mem. at 43-49); and complete.”). 28 56 Rather, Petitioner 1 jury’s evident confusion about the difference between first and 2 second degree murder. (Petition at 8; Reply Mem. at 43-49). 3 4 “‘The Supreme Court has clearly stated that it is reversible 5 error for a trial judge to give an answer to a jury’s question that 6 is misleading, unresponsive, or legally incorrect.’” United States 7 v. Anekwu, 695 F.3d 967, 986 (9th Cir. 2012) (quoting United States 8 v. Frega, 179 F.3d 793, 810 (9th Cir. 1999)). 9 jury makes explicit its difficulties a trial judge should clear Instead, “[w]hen a 10 them away with concrete accuracy.” 11 326 U.S. 607, 612-13 (1946); Anekwu, 695 F.3d at 986. Bollenbach v. United States, 12 13 After receiving the jury’s note and discussing the matter with 14 counsel, the trial court brought the jury into the courtroom and 15 inquired into the nature of the jury’s confusion, and the jury 16 foreperson stated “We’ve read [CALCRIM 520 and 521] a couple [of] 17 times already. . . . 18 degree [murder] is found in 520 . . . but 520, the title is first 19 and second degree.” 521 states that the definition of second (RT 4204-11). The trial court responded: 20 21 That just occurred to me, that sometimes we get hung up 22 on the titles of the instructions, and . . . they are 23 not always very specific. 24 titles to the instructions. 25 . . . if you went back there and crossed out all the 26 titles? The only reason I think we include the titles 27 is quick 28 involuntary for reference So I suggest you ignore the Do you think that would help to manslaughter, look instead 57 up, of for the example, number. 1 Sometimes, if we describe it too much, that could cause 2 some confusion. 3 fellow jurors to see if you need further clarification? Do you want to go back and talk to your 4 The trial court also advised the jury to “report 5 (RT 4211-12). 6 back whether you need more clarification[,]” but the jury raised 7 no further issues and instead reached a verdict. 8 09). (RT 4213, 4501- 9 10 “A jury is presumed to follow its instructions” and “to 11 understand a judge’s answer to its question[,]” Weeks, 528 U.S. at 12 234; see also Sarausad, 555 U.S. at 196 (“Where a judge ‘respond[s] 13 to the jury’s question by directing its attention to the precise 14 paragraph of the constitutionally adequate instruction that answers 15 its inquiry,’ and the jury asks no followup question, this Court 16 has presumed that the jury fully understood the judge’s answer and 17 appropriately applied the jury instructions.” (citation omitted)). 18 Petitioner has failed to provide any reason to believe the jury 19 was incapable of following the trial court’s instructions. 20 483 U.S. at 766 n.8. 21 Sarausad, 555 U.S. at 196; Weeks, 528 U.S. at 234-37; Anekwu, 695 22 F.3d at 987. Miller, Accordingly, Ground Five is without merit. 23 24 25 F. Petitioner Is Not Entitled To Relief On His Insufficient Evidence Claim 26 27 28 In evidence Ground to Six, convict Petitioner him of claims second 58 there degree was murder insufficient because the 1 evidence demonstrated he committed voluntary manslaughter, not 2 murder. (Petition at 8-9; Reply Mem. at 50-55). 3 4 1. California Court of Appeal’s Opinion 5 6 7 The California Court of Appeal rejected Petitioner’s claim, stating: 8 9 There was sufficient evidence to support an 10 instruction on voluntary manslaughter committed in the 11 heat of passion and the jury was instructed on that 12 theory. 13 [Petitioner’s] statement to Officer Grant that he brought 14 the knife used in the killing to Bradley’s apartment. 15 Respondent 16 overheard by Bradley’s neighbor, in which Bradley said 17 that he would not pay for sex. 18 ransacked and cash and other valuables were missing from 19 the apartment. 20 the murder was committed for financial motives rather 21 than in the heat of passion. 22 reasonably justify the jury’s findings, the judgment may 23 not be reversed simply because the circumstances might 24 also 25 finding.’”’” 26 supported by substantial evidence. But it rejected it. also cites There was evidence from the telephone The bedroom had been The jury could reasonably conclude that reasonably be “‘“‘[I]f the circumstances reconciled with a contrary The conviction of second degree murder is 27 28 conversation (Lodgment 4 at 30 (citation omitted)). 59 1 2. Analysis 2 3 To review the sufficiency of the evidence in a habeas corpus 4 proceeding, the court must determine “whether, after viewing the 5 evidence in the light most favorable to the prosecution, any 6 rational trier of fact could have found the essential elements of 7 the crime beyond a reasonable doubt.” 8 U.S. 307, 319 (1979) (emphasis omitted); Parker v. Matthews, 132 9 S. Ct. 2148, 2152 (2012) (per curiam); see also Coleman v. Johnson, 10 132 S. Ct. 2060, 2065 (2012) (per curiam) (“[T]he only question 11 under Jackson is whether [the jury’s] finding was so insupportable 12 as to fall below the threshold of bare rationality.”). 13 reviewing court must consider all of the evidence admitted by the 14 trial court,’ regardless [of] whether that evidence was admitted 15 erroneously,” McDaniel v. Brown, 558 U.S. 120, 131 (2010) (per 16 curiam) (citation omitted), all evidence must be considered in the 17 light most favorable to the prosecution, Jeffers, 497 U.S. at 782; 18 Jackson, 443 U.S. at 319, and if the facts support conflicting 19 inferences, reviewing courts “must presume – even if it does not 20 affirmatively appear in the record – that the trier of fact resolved 21 any such conflicts in favor of the prosecution, and must defer to 22 that resolution.” 23 S. Ct. 2, 6 (2011) (per curiam). 24 courts must “apply the standards of [Jackson] with an additional 25 layer of deference.” 26 Cir. 2005); Boyer v. Belleque, 659 F.3d 957, 964-65 (9th Cir. 27 2011). 28 the criminal offense under state law. Jackson v. Virginia, 443 “‘[A] Jackson, 443 U.S. at 326; Cavazos v. Smith, 132 Furthermore, under AEDPA, federal Juan H. v. Allen, 408 F.3d 1262, 1274 (9th These standards are applied to the substantive elements of 60 Jackson, 443 U.S. at 324 1 n.16; Boyer, 659 F.3d at 964; see also Johnson, 132 S. Ct. at 2064 2 (“Under Jackson, federal courts must look to state law for the 3 substantive elements of the criminal offense, but the minimum 4 amount of evidence that the Due Process Clause requires to prove 5 the offense is purely a matter of federal law.” (citation and 6 quotation marks omitted)). 7 8 Under California law, “‘[s]econd degree murder is the unlawful 9 killing of a human being with malice aforethought but without the 10 additional 11 deliberation, that would support a conviction of first degree 12 murder.’” 13 People v. Knoller, 41 Cal. 4th 139, 151 (2007)); People v. Beltran, 14 56 Cal. 4th 935, 942 (2013). 15 or implied.” 16 malice is an intent to kill.” 17 653 (2012); Beltran, 56 Cal. 4th at 941. 18 an unlawful killing results from a willful act, the natural and 19 probable 20 performed with conscious disregard for that danger.” 21 Cal. 4th at 133; Beltran, 56 Cal. 4th at 941-42; see also People 22 v. Olivas, 172 Cal. App. 3d 984, 987-88 (1985) (“Phrased in everyday 23 language, the state of mind of a person who acts with conscious 24 disregard for life is, ‘I know my conduct is dangerous to others, 25 but I don’t care if someone is hurt or killed.’”). elements, such as willfulness, premeditation, and People v. Elmore, 59 Cal. 4th 121, 133 (2014) (quoting “Malice aforethought may be express Beltran, 56 Cal. 4th at 941; P.C. § 188. consequences of “Express People v. Gonzalez, 54 Cal. 4th 643, which are “Malice is implied when dangerous to human life, Elmore, 59 26 27 Here, there is no dispute that Petitioner killed the victim. 28 (See, e.g., RT 3972 (Petitioner “did take [the victim’s] life, and 61 1 that is a horrible thing, but that doesn’t make him a murderer.”); 2 Reply 3 [P]etitioner killed [the victim] in the heat of passion. . . .”)). 4 Indeed, Petitioner conceded he cut the victim’s neck with a knife. 5 (RT 3158-59). 6 victim 7 instrument such as a knife . . . made using a large amount of force 8 by an assailant” who inflicted “extensive and very deep cutting of 9 the structures of the [victim’s] anterior neck, including all of 10 the muscles down to the vertebral column, the larynx, a number of 11 branch arteries within the neck and the right common carotid artery 12 and right internal carotid artery.” 13 is sufficient to support the jury’s conclusion that Petitioner 14 killed the victim, and did so with malice aforethought, i.e., 15 express or implied malice. 16 4th 515, 561 (2002) (“[T]he victim died from a single stab wound 17 to the back that penetrated the victim’s lungs and spleen. 18 stab wound was five inches long and five to six inches deep . . . . 19 In plunging the knife so deeply into such a vital area of the body 20 of an apparently unsuspecting and defenseless victim, defendant 21 could have had no other intent than to kill.”);15 People v. Moore, 22 96 Cal. App. 4th 1105, 1114 (2002) (stabbing the victim in “an 23 extremely vulnerable area of the body” supports an intent to kill). 24 \\ 25 \\ Mem. died at 55 (The “evidence proved [overwhelmingly] that Moreover, coroner Dr. James Ribe testified that the from a “slash wound which was made (RT 2140-44). by a bladed Such evidence See, e.g., People v. Bolden, 29 Cal. The 26 27 28 As stated above, “[i]ntent to unlawfully kill and express malice are, in essence, ‘one and the same.’” People v. Smith, 37 Cal. 4th 733, 739 (2005) (citation omitted). 15 62 1 Petitioner nevertheless argues that his conviction should be 2 reduced 3 overwhelmingly established he acted in the heat of passion.16 4 (Petition at 8-9; Reply Mem. at 50-55). 5 of Appeal noted, “[t]here was sufficient evidence to support an 6 instruction on voluntary manslaughter committed in the heat of 7 passion and the jury was instructed on that theory.”17 8 4 9 Petitioner’s evidence, as it was entitled to do. at 30; to see voluntary also CT manslaughter 257-60). because the evidence As the California Court However, the jury (Lodgment rejected See Smith, 132 10 S. Ct. at 4 (“[I]t is the responsibility of the jury - not the 11 court - to decide what conclusions should be drawn from evidence 12 admitted at trial.”); Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 13 23 “Heat of passion is one of the mental states that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter.” People v. Nelson, 1 Cal. 5th 513, 538 (2016); Beltran, 56 Cal. 4th at 942. “Heat of passion arises if, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.” Beltran, 56 Cal. 4th at 942 (citation and internal quotation marks omitted); Nelson, 1 Cal. 5th at 538-39. “Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation. While some measure of thought is required to form either an intent to kill or a conscious disregard for human life, a person who acts without reflection in response to adequate provocation does not act with malice.” Beltran, 56 Cal. 4th at 942; Nelson, 1 Cal. 5th at 539. 24 17 14 15 16 17 18 19 20 21 22 25 26 27 28 16 Among other things, the trial court properly instructed the jury that “[t]he People have the burden of proving beyond a reasonable doubt that [Petitioner] did not kill as the result of a sudden quarrel or in the heat of passion.” (CT 260); see also Mullaney v. Wilbur, 421 U.S. 684, 704 (1975) (“[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.”). 63 1 2013) (“Although the evidence presented at trial could yield an 2 alternative inference, we ‘must respect the exclusive province of 3 the [jury] to determine the credibility of witnesses, resolve 4 evidentiary conflicts, and draw reasonable inferences from proven 5 facts.’” 6 found, the prosecution presented sufficient evidence for the “jury 7 [to] 8 financial motive rather than in the heat of passion[,]”18 (Lodgment 9 4 at 30). (citation omitted))). reasonably conclude As the California Court of Appeal that the murder was committed for Accordingly, the California courts’ rejection of Ground 10 Six was not contrary to, or an unreasonable application of, clearly 11 established federal law. 12 \\ 13 \\ 14 \\ 15 \\ 16 \\ 17 \\ 18 19 20 21 22 23 24 25 26 27 28 18 This evidence included testimony that: Petitioner had indicated he had a history of trading sex with the victim for drugs (RT 3650); on the afternoon of the victim’s murder, the victim’s neighbor overhead the victim talking to someone on the phone and telling that person “If you’re coming over for sex, I don’t pay for sex. I’m not like that” and “I don’t loan people out because it’s hard to get back” (RT 915-18, 3658-59); the victim had made a telephone call to Petitioner at around the time of the conversation the victim’s neighbor overheard (RT 2517); Petitioner had a knife with him when he went to the victim’s home (RT 2461); the victim was killed without any sign of struggle, suggesting he was taken by surprise and contradicting Petitioner’s claim that he fought off the victim who was attempting to rape him (RT 2455-57, 247475); and the victim’s bedroom had been “ransacked,” his jewel collection and new cell phone were missing, and the victim’s wallet was found near his body with a bank card in it but no cash. (RT 1229-30, 1517-22, 1577-78, 1922-23, 2434-37, 2476-77, 2510-12). 64 1 VII. 2 CONCLUSION 3 4 For the foregoing reasons, the Petition for Writ of Habeas 5 Corpus is DENIED and Judgment shall be entered dismissing this 6 action with prejudice. 7 8 DATED: November 21, 2016 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 65

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