Daniel Belmonte v. W. L. Montgomery, No. 2:2014cv06842 - Document 22 (C.D. Cal. 2015)
Court Description: OPINION AND ORDER by Magistrate Judge Douglas F. McCormick: For the reasons discussed in detail above, the Petition is denied and the action is dismissed with prejudice. See document for further details. (lwag)
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Daniel Belmonte v. W. L. Montgomery Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 DANIEL BELMONTE, 12 Petitioner, 13 14 v. W.L. MONTGOMERY, Warden, 15 Respondent. 16 ) Case No. CV 14-6842-DFM ) ) ) OPINION AND ORDER ) ) ) ) ) ) ) ) 17 18 I. 19 BACKGROUND 20 21 A. Procedural History On August 1, 2011, a jury convicted Petitioner Daniel Belmonte of 22 carjacking and attempted robbery. 2 Clerk’s Transcript (“CT”) 280-81. 23 Petitioner admitted the truth of several prior conviction allegations. 2 CT 264. 24 The trial court sentenced Petitioner to a term of 26 years in state prison. 2 CT 25 334-35. 26 Petitioner appealed to the California Court of Appeal, raising the 27 following claims: (1) the admission of gang evidence violated his constitutional 28 right to a fair trial; and (2) the admission of Petitioner’s former co-defendant’s Dockets.Justia.com 1 statement at trial violated his constitutional right to confrontation under 2 Bruton v. United States, 391 U.S. 123 (1968). Respondent’s Notice of Lodging, 3 Lodged Document (“LD”) 1. On April 29, 2013, the California Court of 4 Appeal affirmed the judgment in a reasoned decision on the merits. LD 2. 5 Petitioner filed a petition for review in the California Supreme Court, which 6 was summarily denied on July 10, 2013. LD 3, 4. On September 2, 2014, Petitioner filed in this Court a Petition for Writ 7 8 of Habeas Corpus by a Person in State Custody. Dkt. 1 (“Petition”). The 9 Petition raises the same two claims as raised on direct appeal. Id. at 5, 10-30.1 10 On March 19, 2015, Respondent filed an Answer to the Petition. Dkt. 18. 11 Petitioner has not filed a reply. 12 B. Summary of the Evidence Presented at Trial 13 The underlying facts are taken from the unpublished opinion of the 14 California Court of Appeal.2 Unless rebutted by clear and convincing evidence, 15 these facts are presumed correct. Tilcock v. Budge, 538 F.3d 1138, 1141 (9th 16 Cir. 2008); 28 U.S.C. § 2254 (e)(1). Petitioner has not attempted to overcome 17 the presumption with respect to the underlying facts. 18 On December 17, 2010, shortly after midnight, Andres 19 Flores (Flores) stopped for coffee at a donut shop near Cesar 20 Chavez and Evergreen Avenues in Boyle Heights. As he returned 21 to his vehicle, a Ford Expedition, a woman approached his 22 passenger door and asked for a ride. Flores declined. 23 As Flores put his keys in the ignition, he opened his car door 24 to retrieve his cell phone in the pocket of the door. A man wearing 25 1 26 27 All citations to the Petition are to the CM/ECF pagination. 2 In all quoted sections of the Opinion and Order, the term “defendant” has been replaced with “Petitioner.” 28 2 1 a blue baseball cap, a light grey or white shirt, and baggy pants 2 approached and demanded his money. The two men scuffled 3 beside the vehicle for approximately ten seconds, when a second 4 assailant approached. The second man was husky, with a shaved 5 head and a mustache. 6 During the fight, Flores broke free and ran towards the 7 middle of the street. The second man went to Flores’s vehicle, got 8 in and drove away. In court, Flores identified Petitioner as the 9 second man. Flores briefly chased the vehicle. He returned to the 10 donut shop and called 911 from the payphone. Flores had 11 scratches on his neck and bruised and bleeding knuckles. 12 Los Angeles Police Officer Miguel Ruano responded to the 13 scene and interviewed Flores. Flores did not appear to be under 14 the influence. Flores stated that his vehicle was equipped with 15 LoJack. Flores told the officer that the man who demanded money 16 said he had a gun in his waistband, but Flores never saw a gun. 17 Flores described both men as under six feet tall, and around 200 18 pounds. 19 Santa Ana Police Officer Daniel Carrillo received the 20 LoJack alert. He and other officers located the Expedition, pulled 21 it over, and detained its occupants. Petitioner was driving the 22 vehicle when it was pulled over. Officer Carrillo found a replica 23 firearm in the front pocket of Petitioner’s sweatshirt. 24 Twelve hours after the carjacking, Los Angeles Police 25 Detective Juan Gonzalez interviewed Flores. Flores did not 26 appear to be under the influence of or “coming down” from any 27 drugs. Flores stated that the first attacker had patted his waistband, 28 indicating that he was carrying a weapon, but Flores never saw a 3 1 weapon. Flores was not able to identify anyone from several six- 2 pack lineups. Detective Gonzalez investigated the four people who 3 had been in the car when it was recovered, three male and one 4 female. He identified those four as Petitioner, Nancy Mendoza 5 (Mendoza), Salvador “Lonely” Silva (Silva), and Randy “Curly” 6 McGill (McGill). Petitioner was five feet, nine inches tall and 7 weighed 230 pounds; Silva was five feet, eight inches tall and 8 weighed 200 pounds; and McGill was five feet, seven inches tall 9 and weighed 170 pounds. 10 When Flores recovered his vehicle, it contained a large black 11 jacket, like the one the second man had been wearing. Flores 12 received his keys and cell phone, but was missing his laptop and 13 other files. Flores initially testified that he believed the first man 14 was a lot taller than the second person, around six feet tall, and 15 weighed around 180 pounds. Upon having his memory refreshed, 16 he testified that the first assailant was five feet, ten inches tall and 17 weighed about 210 pounds, with the second assailant five feet, 18 eight inches tall and approximately 200 pounds. On cross- 19 examination, Flores stated he remembered that the first assailant 20 was “quite” taller than him (Flores is five feet, seven or eight 21 inches tall) and the second assailant was shorter. 22 On January 6, 2011, Los Angeles County Deputy Sheriff 23 Leonel Gomez, a bailiff, was escorting Petitioner and his 24 codefendant, Mendoza, back to lockup after a court appearance. 25 Deputy Gomez observed Petitioner passing some papers to 26 Mendoza. Deputy Gomez confiscated the five pages and turned 27 them over to the District Attorney’s Office. The pages ultimately 28 were given to Detective Gonzalez. The five pieces of paper 4 1 consisted of a four-page police report and a one-page hand-printed 2 letter to Mendoza from Petitioner. 3 ... 4 Petitioner testified that on December 17, 2010, he was 5 partying at some apartments located on Cesar Chavez Avenue and 6 Savannah Street in Boyle Heights. Petitioner and about eight other 7 men and women were drinking alcohol and smoking marijuana 8 and methamphetamine. Flores approached Petitioner and said he 9 wanted to buy some methamphetamine. Petitioner sold him $20 10 worth. Flores smoked the methamphetamine in back of the 11 buildings and tried to flirt with Mendoza. 12 Flores wanted to buy some more methamphetamine, but he 13 did not have money. Petitioner wanted to buy a Christmas tree, so 14 he was going to rent Flores’s truck in exchange for more 15 methamphetamine. While Flores was waiting for the drugs, he left 16 for the donut shop. 17 Petitioner ultimately gave the methamphetamine to his 18 friends, who were going to find Flores. Mendoza, McGill and 19 Silva walked to the donut shop. Petitioner’s friends returned in the 20 truck a few minutes later and were going to a Walmart to buy a 21 Christmas tree. After stopping at a gas station, Petitioner got into 22 the driver’s seat. Later, Petitioner decided they needed to return 23 the truck to Flores, but they were stopped by Santa Ana police 24 officers before they were able to return the truck. When Petitioner 25 was arrested, the officers found his son’s toy gun, which he carried 26 for protection, in the trunk and planted it on him. 27 Petitioner had seen Flores in the neighborhood before and 28 had even sold him drugs on a prior occasion. He did not take 5 1 Flores’s Expedition by force and did not know how his friends had 2 obtained the vehicle. 3 The area where Petitioner was selling drugs was claimed by 4 the Michigan Criminal Force gang. When Petitioner belonged to 5 the gang, it was known as the Michigan Chicano Force gang. 6 Petitioner was no longer active in the gang even though he had 7 some gang tattoos. 8 Petitioner indicated that he wrote the note to Mendoza 9 because he was unhappy with her statements to the police. He was 10 not trying to convince Mendoza to lie for him, but to tell the truth. 11 ... 12 Detective Gonzalez interviewed Petitioner on December 17, 13 [2010]. The interview was recorded. Petitioner said three times 14 during the interview that he did not know Flores. Petitioner was 15 asked about the gun that was recovered, but he never said it was 16 for protection. Petitioner said Flores handed him the car keys near 17 the donut shop. The recorded interview was played for the jury. 18 LD 2 at 2-5. 19 II. 20 STANDARD OF REVIEW 21 Petitioner’s claims are subject to the provisions of the Antiterrorism and 22 Effective Death Penalty Act (“AEDPA”). Under AEDPA, federal courts may 23 grant habeas relief to a state prisoner “with respect to any claim that was 24 adjudicated on the merits in State court proceedings” only if that adjudication: 25 (1) resulted in a decision that was contrary to, or involved an 26 unreasonable application of, clearly established Federal law, as 27 determined by the Supreme Court of the United States; or (2) 28 resulted in a decision that was based on an unreasonable 6 1 determination of the facts in light of the evidence presented in the 2 State court proceeding. 3 4 28 U.S.C. § 2254(d). Overall, AEDPA presents “a formidable barrier to federal habeas relief 5 for prisoners whose claims have been adjudicated in state court.” Burt v. 6 Titlow, --- U.S. ---, 134 S. Ct. 10, 16 (2013). AEDPA presents “a difficult to 7 meet and highly deferential standard for evaluating state-court rulings, which 8 demands that state-court decisions be given the benefit of the doubt.” Cullen v. 9 Pinholster, 563 U.S. 170, 131 S. Ct. 1388, 1398 (2011) (internal quotation 10 marks and citations omitted). The prisoner bears the burden to show that the 11 state court’s decision “was so lacking in justification that there was an error 12 well understood and comprehended in existing law beyond any possibility for 13 fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). In 14 other words, a state-court “determination that a claim lacks merit precludes 15 federal habeas relief so long as fairminded jurists could disagree on the 16 correctness” of that ruling. Id. at 101 (internal quotation marks omitted). 17 Federal habeas corpus review therefore serves as “a guard against extreme 18 malfunctions in the state criminal justice systems, not a substitute for ordinary 19 error correction through appeal.” Id. at 102-03 (internal quotation marks 20 omitted). 21 Here, Petitioner raised his claims on direct appeal and those claims were 22 denied by the California Court of Appeal in a reasoned decision. See LD 2. 23 Thus, for purposes of applying the AEDPA standard of review, the California 24 Court of Appeal decision on direct appeal constitutes the relevant state court 25 adjudication on the merits. See Johnson v. Williams, --- U.S. ---, 133 S. Ct. 26 1088, 1094 n.1 (2013) (noting that federal habeas court “look[s] through” 27 summary denial of claim to last reasoned decision from the state courts to 28 address the claim). 7 1 III. 2 DISCUSSION 3 A. Petitioner’s Claim Regarding Admission of Gang Evidence Does Not 4 Warrant Habeas Relief 5 Petitioner contends that the gang evidence admitted at trial was 6 minimally probative and highly prejudicial, thus violating his right to a fair 7 trial. Petition at 19-29. 8 1. 9 The state appellate court summarized the trial proceedings that led to the 10 11 12 Factual Background admission of gang evidence as follows: During direct examination, Petitioner’s attorney asked him why he was carrying a toy gun. The following occurred: 13 A: The area that I’m in, it’s — it’s not a good area. 14 Q: Now, when you say the area, you mean the one that we 15 talked about on the photograph? 16 A: Yes. 17 Q: Over there, Cesar Chavez and Savannah? 18 A: Yes, yes. 19 Q: And when you say it’s not a good area, well, there’s 20 people that sell drugs there, aren’t there? 21 A: Right. 22 Q: And you’re one of them, right? 23 A: Yes. 24 Q: Okay. Any other bad things happen over there that you 25 know of? 26 A: A lot of bad things happen, gang members passing by. 27 Q: Okay. You don’t have to tell me specifically, but so why 28 are you carrying that gun? 8 1 A: For protection. 2 Q: To protect yourself? 3 A: Yes. 4 Prior to the cross-examination of Petitioner, the prosecutor 5 asked for a sidebar, as follows: 6 [Prosecutor]: Your honor, at this point I think the defense 7 has opened the door for me to inquire about Petitioner’s gang 8 affiliation, as well as the affiliation of the gang for his cohort that 9 was there, as well. He testified that the area is not a good area, that 10 there are gang members there and he carries guns for protection, 11 when in fact he is in a gang that occupies that area, so he’s talking 12 about his exact — himself. I think for purposes of impeachment 13 and for the jury to get the correct picture of that area and 14 Petitioner’s involvement in that area, I think the defense has 15 opened the door for me to inquire into that because the picture that 16 has been painted for the jury at this point is that Petitioner is an 17 innocent character that is just in a bad area, and he carries the gun, 18 and he himself is involved in criminal activity as part of a street 19 gang in that area. That area is occupied by his gang. 20 [Defense counsel]: I disagree. He hasn’t opened the door. He 21 has certainly not painted himself as an innocent party. He’s a guy 22 over there in a bad neighborhood where bad things happen, and 23 when you’re trying to sell drugs bad things can happen to you. 24 They can steal your drugs or steal your money, and so he’s 25 carrying the gun to protect himself because he’s doing something 26 illegal. He has far from painted himself from any innocence there 27 who was just trying to protect himself from predators, and there 28 has not been one whiff of any tie to any gang. I don’t think that’s 9 1 opened the door, and I think at this late date it can be so highly 2 prejudicial. I don’t even know if he is in the gang right now or 3 active or anything like that. I have nothing prepared in that sense 4 at all or in that regard. I just don’t see it. 5 6 7 8 The Court: He did mention gangs and he did characterize the area. I will allow the People’s cross-examination as proposed. The prosecutor started his cross-examination of Petitioner as follows: 9 Q: Now, Petitioner, you indicated on your direct 10 examination that the area that is located in this area is an area that 11 is trafficked by gang members; is that correct? 12 A: Yes. 13 Q: Okay. It is an area — a gang territory, correct? 14 A: Yes. 15 Q: Okay. And what — and you, sir, are part of a criminal 16 street gang, correct? 17 A: I’m not an active member, but yes. 18 Q: Okay. You are a part of a street gang by the name of 19 Michigan Criminal Street gang; is that correct? 20 A: No. 21 Q: Okay. Well, let me ask you this: you at one point were a 22 Michigan Criminal Street gang member, right? Criminal Force? 23 A: Yes. 24 Q: Okay. Now I’m going to show you a series — and your 25 testimony today is you are not an active gang member with this 26 gang; is that correct? 27 A: Excuse me? I didn’t hear you. What? 28 Q: Your testimony today is that you are not an active 10 1 Michigan Criminal Force Street gang member? 2 A: Yes. 3 [Defense Counsel]: Your honor, may we approach? 4 The Court: The question was today. You meant at the time 5 of the incident? 6 [Prosecutor]: I’m sorry, at the time of the incident. At the 7 time of the incident on December 17, 2010, were you an active 8 member of the Michigan Criminal Force Street gang? 9 A: No. 10 After the inquiry, defense counsel requested a sidebar to 11 discuss photographs of Petitioner that the prosecution would seek 12 to introduce. The trial court ruled as follows: 13 The Court: All right. I have now seen all four, and the word 14 Michigan appears on several of them, MC, which I’m assuming is 15 Michigan Criminals. We’ll find out. I’ve considered under 16 [Evidence Code section] 352, and I don’t think that it’s more 17 prejudicial than probative. I think it goes directly against his 18 assertion that he wasn’t an active criminal street gang member at 19 the time. We do have to keep in mind that there is no gang 20 enhancement, so I am going to allow an inquiry with respect to 21 this, but at some point I’m going to cut it off, so I’m just putting 22 the People on notice. 23 [Prosecutor]: I also, your honor, want one of the individuals 24 who was arrested who was tattooed up with Michigan Criminal 25 Force. 26 The Court: Yeah, I think that’s relevant because you know 27 they’re more likely to be active members if they’re hanging out 28 with one another, so I'll allow that, too. But once again, I am 11 1 going to draw the line because we’re going to have a trial within a 2 trial at some point. 3 [Prosecutor]: I understand. Thank you. 4 [Defense Counsel]: I’m going to ask to be allowed to 5 inquire, because he was not active, he was working for Homeboy 6 Industries, which, to my understanding, is a bakery, and so I think 7 that I should be allowed to ask that 8 The Court: I will allow that. 9 Thereafter, the jury was instructed that it could not consider 10 any gang activity for any other purpose except for the limited 11 purpose of determining whether Petitioner’s testimony that he was 12 not active in a gang was believable. The jury was also advised that 13 the evidence should not be used to determine if Petitioner had bad 14 character or was disposed to commit the crime. 15 LD 2 at 5-9 (internal quotation marks and footnote omitted). 16 2. Decision of the California Court of Appeal 17 The California Court of Appeal rejected Petitioner’s claim as follows: 18 The trial court properly admits gang evidence when it is 19 relevant to a material issue at trial. (People v. Hernandez (2004) 33 20 Cal.4th 1040, 1049; People v. Martinez (2003) 113 Cal.App.4th 21 400, 413.) It is not admissible when its only purpose is to prove 22 “‘a defendant’s criminal disposition or bad character’” in order to 23 create “‘an inference the defendant committed the charged 24 offense.’” (People v. Albarran (2007) 149 Cal.App.4th at 214, 223; 25 accord, Evid.Code, § 1101, subd. (a).) 26 Assuming arguendo evidentiary error, “the admission of 27 evidence, even if erroneous under state law, results in a due 28 process violation only if it makes the trial fundamentally unfair.” 12 1 (People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted.) 2 “Absent fundamental unfairness, state law error in admitting 3 evidence is subject to the traditional [People v. Watson (1956) 46 4 Cal.2d 818, 836] test: The reviewing court must ask whether it is 5 reasonably probably the verdict would have been more favorable 6 to the defendant absent the error. [Citations.]” (Id. at p. 439.) 7 Petitioner has not persuaded us that the trial was fundamentally 8 unfair. As discussed below, it is not reasonably probable the 9 verdict would have been more favorable to Petitioner absent any 10 alleged error. 11 Even under the more stringent [Chapman v. California 12 (1967) 386 U.S. 18, 24] standard, we find no prejudicial error. The 13 evidence against Petitioner was overwhelming, It is undisputed 14 that Petitioner and his friends were in the Flores’s vehicle when 15 they were stopped and arrested. Petitioner’s defense that Flores 16 was buying drugs was unbelievable. The officers who interviewed 17 Flores indicated that he was not under the influence of drugs and 18 was not “coming down” from the effect of earlier drug usage. 19 Petitioner’s defense was inconsistent. At trial, he testified that 20 Flores lent him the vehicle in exchange for methamphetamine. 21 This was the version he attempted to have Mendoza use in his 22 handwritten letter to her, contrary to her statements to the police. 23 When Petitioner was interviewed after his arrest, he stated that he 24 stayed at the party while his friends went to get the vehicle at the 25 donut shop. 26 The admission of the limited gang evidence at trial was not 27 as prejudicial as Petitioner’s unprovoked carjacking and admission 28 that he was selling drugs at the time of the incident. In light of the 13 1 compelling evidence against Petitioner and the limited admission 2 of evidence concerning his gang involvement, reversal is not 3 required. 4 LD 2 at 9-10 (footnotes omitted). 5 3. Discussion 6 As a preliminary matter, the Court notes that a state court’s 7 misapplication of state evidentiary law or of its own precedent, in and of itself, 8 is not a basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 9 (1991) (“[W]e reemphasize that it is not the province of a federal habeas court 10 to reexamine state-court determinations on state-law questions.”); Lincoln v. 11 Sunn, 807 F.2d 805, 816 (9th Cir. 1987) (“Incorrect state court evidentiary 12 rulings cannot serve as a basis for habeas relief unless federal constitutional 13 rights are affected” (citing Givens v. Housewright, 786 F.2d 1378, 1381 (9th 14 Cir. 1986)). Thus, to the extent that Petitioner contends that the trial court’s 15 admission of gang evidence violated California state evidentiary law, he fails to 16 state a cognizable claim for federal habeas relief. 17 Furthermore, although Petitioner argues that the admission of evidence 18 of his membership in the Michigan Criminal Force gang violated his 19 constitutional rights, there is no clearly established Supreme Court law 20 mandating exclusion of this type of evidence. Accordingly, the state appellate 21 court could not have unreasonably applied clearly established federal law when 22 it rejected Petitioner’s claim on direct appeal. See Holley v. Yarborough, 568 23 F.3d 1091, 1101 (9th Cir. 2009) (“Although the Court has been clear that a 24 writ should be issued when constitutional errors have rendered the trial 25 fundamentally unfair, it has not yet made a clear ruling that admission of 26 irrelevant or overtly prejudicial evidence constitutes a due process violation 27 sufficient to warrant issuance of the writ.”) (internal citation omitted); see also 28 Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (holding that state trial 14 1 court’s admission of propensity evidence did not violate clearly established 2 federal law); Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006) 3 (same). 4 In addition, a state court’s decision to admit specific evidence is not 5 subject to federal habeas review unless the evidentiary ruling violates federal 6 law or deprives the defendant of a fundamentally fair trial. Estelle, 502 U.S. at 7 75 (finding federal habeas relief inappropriate where admission of evidence 8 was not so unfair as to result in a denial of due process); Dowling v. United 9 States, 493 U.S. 342, 352 (1990) (analyzing “whether the introduction of this 10 type of evidence is so extremely unfair that its admission violates ‘fundamental 11 conceptions of justice’” (citation omitted)). The Ninth Circuit has noted that a 12 habeas petitioner bears a “heavy burden” in demonstrating a due process 13 violation on the basis of a state court’s evidentiary decision, as he must show 14 that there were “‘no permissible inferences’” the jury could draw from the 15 challenged evidence. Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005) 16 (quoting Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991)). 17 Here, there were permissible inferences that could be drawn from 18 evidence of Petitioner’s membership in the Michigan Criminal Force gang, so 19 that its admission cannot be said to have rendered Petitioner’s trial so 20 “fundamentally unfair” as to violate due process. Holley, 568 F.3d at 1101. 21 The evidence was admitted for impeachment purposes, that is, to undermine 22 Petitioner’s testimony that he was not an active gang member at the time of the 23 charged crimes. In addition, the jury was specifically instructed that it could 24 consider this evidence only for the limited purpose of determining whether 25 Petitioner’s testimony that he was not active in a gang was believable. The jury 26 was also advised that the evidence could not be used to conclude that 27 Petitioner had a generally bad character or was disposed to commit the crime. 28 2 CT 274. A jury is presumed to follow its instructions when reaching a 15 1 verdict. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citing Richardson 2 v. Marsh, 481 U.S. 200, 211 (1987). 3 Finally, even if the Court assumes that the trial court’s ruling was clearly 4 contrary to or an unreasonable application of Supreme Court precedent, such 5 an error justifies relief “only if the error had a ‘substantial and injurious effect 6 or influence in determining the jury verdict.’” Stark v. Hickman, 455 F.3d 7 1070, 1072 (9th Cir. 2006) (quoting Penry v. Johnson, 532 U.S 782, 795 8 (2001)); see also Brecht v. Abramson, 507 U.S. 619, 637 (1993). Such a 9 showing is not made where the evidence of guilt is, “if not overwhelming, 10 certainly weighty” and “other circumstantial evidence[ ] . . . also point[s] to 11 petitioner’s guilt.” Brecht, 507 U.S. at 639. 12 Here, it cannot be said that any alleged error had a substantial and 13 injurious effect or influence on the jury’s verdict. Flores testified that he was “a 14 hundred percent sure” that Petitioner was one of the carjackers. 3 Reporter’s 15 Transcript (“RT”) 616; see also 2 RT 349. Petitioner was driving Flores’s car 16 when he and his friends were stopped and arrested. 3 RT 653-54, 658. 17 Petitioner’s defense that Flores was buying drugs was undermined by the 18 officer who interviewed Flores, who testified that he was not under the 19 influence of drugs and was not “coming down” from the effect of earlier drug 20 usage. 3 RT 632-35. Petitioner also gave conflicting versions of events. For 21 example, he testified at trial that Flores lent him the vehicle in exchange for 22 methamphetamine. 3 RT 747-49, 750, 751-53, 788, 792-95, 798; 4 RT 960-62. 23 This was the same version he attempted to have Mendoza use in his 24 handwritten letter to her, contrary to her statements to the police. 2 CT 178; 2 25 RT 327. However, when Petitioner was interviewed after his arrest, he told 26 police that he stayed at the party while his friends went to get the car at the 27 donut shop. 4 RT 974. In addition, he testified at trial that he recognized 28 Flores and had sold him drugs on prior occasions. 3 RT 764-65; 4 RT 919. 16 1 However, when interviewed by police, Petitioner repeatedly stated that he did 2 not know Flores. 4 RT 973. Accordingly, given the weighty evidence presented 3 at trial, it cannot be said that any alleged error in admitting the gang evidence 4 had a substantial and injurious effect on the verdict. Petitioner is therefore not 5 entitled to habeas relief. 6 B. 7 Petitioner’s Bruton Claim Does Not Warrant Habeas Relief Petitioner argues that his Sixth Amendment right to confrontation was 8 violated by the admission of co-defendant Mendoza’s statements to police. 9 Petition at 29-35. 10 1. 11 The state appellate court summarized the background of this issue as 12 13 Factual Background follows: Mendoza, representing herself, received discovery from 14 prosecution, including police 15 summarized Mendoza’s statements to the police, after she was 16 arrested, as follows: “Mendoza stated she was walking with Chino 17 by the donut shop at Cesar Chavez and Evergreen. Lonely and 18 Curley [sic] were ‘posted up’ nearby. The victim approached her in 19 the parking lot and asked in Spanish, ‘Do you want to fuck?” He 20 also asked if he could buy some drugs. She refused his solicitation 21 and Chino thought this was disrespectful. The victim was walking 22 in[to] the shop as she looked in his vehicle and saw the keys. 23 Mendoza said she told Chino that they should take the truck. 24 There was an altercation, at which time she got in the left rear seat, 25 Chino got in the driver seat, Lonely in the front passenger seat. 26 They drove over to Curly and picked him up. They then drove to 27 the 710 freeway south to the eastbound 91 freeway then 28 southbound 5 freeway. Mendoza stated they got lost, but 17 reports. One police report 1 remembers passing Disneyland. They stopped at an unknown gas 2 station to get cigarettes, and she changed seats with Lonely so that 3 she could help navigate. Mendoza said they observed the police 4 following them, and that Curly wanted to run. She told them to 5 pull over because they would get caught by a police dog if they 6 ran. Mendoza said she saw the toy gun on the rear floor of the 7 vehicle when she was seated in the back. She took a black cell 8 phone that was in the front passenger door. She also remembers 9 seeing a wallet. Mendoza advised the phone was in her property 10 taken by police. She denied being a gang member and stated that 11 the other defendants were . . . (Michigan Criminal Force) gang 12 members.” 13 During a prior court appearance, Petitioner tried to hand 14 several pages to Mendoza while they were in lockup. In addition 15 to police reports, which included Mendoza’s statement, there was 16 a one-page letter handwritten by Petitioner to Mendoza, as 17 follows: “Nancy . . . Ok check this out on your statement to the 18 cops. Your gonna say they told you what to say before going into 19 that room where you ‘told nigga!’ I know Curly made you say that 20 shit[.] He has something coming from me. Anyways this is it. Did 21 you get my letter? Ok me, Curly, Lonely, Dee, Steph and about 3 22 other bitches are gonna say we were all kicking back at the apt’s[.] 23 D-end and Andres aka “Andrew Flores” was partying with us. He 24 ran out so he asked if he could trade his truck for a few hours for 25 some meth. He propositioned but you said chale so he went to go 26 smoke in the back of the apt. Me[,] Curly [,] you[,] Lonely left. We 27 were gonna get a xmas tree for me at Wall Mart [sic]. They should 28 let us go home next month. Don’t break. Be strong.” 18 1 Petitioner’s counsel objected when the prosecutor started to 2 read Petitioner’s letter during opening statements to the jury. The 3 trial court overruled the objection, finding that Petitioner wrote the 4 letter so it was admissible under Evidence Code section 1220 as an 5 admission by a party. 6 During Petitioner’s testimony, outside the presence of the 7 jury, the prosecutor stated that he intended to confront Petitioner 8 with the contents of the letter. The prosecutor also indicated that 9 he intended to confront Petitioner with Mendoza’s statements to 10 the police, contained in one of the police reports in Petitioner’s 11 possession. Petitioner’s attorney initially objected that the 12 Mendoza statement was “hearsay on hearsay of what . . . 13 Mendoza may or may not have told the police.” The prosecutor 14 responded that Mendoza’s statements to the police were not 15 offered for the truth of what happened, but to explain why 16 Petitioner wrote the letter to Mendoza. 17 After the prosecutor discussed Petitioner’s own handwritten- 18 letter with him, he started to review Mendoza’s statements to law 19 enforcement. The trial court interrupted, and advised the jury as 20 follows: “Ms. Mendoza’s statements to the police in the police 21 report that are about to be narrated are not to be accepted by the 22 jury for the truth of the matter, that what she said is the way that 23 the incident actually happened. It is to be considered only as 24 evidence that the defendant tried to create false evidence or obtain 25 false testimony.” 26 After the trial court’s ruling, the prosecutor discussed 27 Mendoza’s statements to the police with Petitioner. On redirect, 28 defense counsel also discussed Mendoza’s statements with 19 1 Petitioner. Petitioner indicated that the letter actually asked 2 Mendoza to tell the truth, and not lie about the incident. 3 LD 2 at 10-12. 4 2. 5 The California Court of Appeal denied Petitioner’s Bruton claim as 6 Decision of the California Court of Appeal follows: 7 Petitioner contends that the admission of Mendoza’s 8 statements violated his confrontation rights under People v. 9 Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 10 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476]. In Aranda, the 11 California Supreme Court held that when a prosecution intends to 12 offer the extrajudicial statement of one defendant which 13 incriminates a codefendant, the trial court must either grant 14 separate trials, exclude the statement, or excise all references to the 15 nondeclarant defendant. (Aranda, supra, at pp. 530-531.) Under 16 Bruton, “ ‘[A] defendant is deprived of his Sixth Amendment right 17 of confrontation when the facially incriminating [statement] of a 18 nontestifying codefendant is introduced at their joint trial, even if 19 the jury is instructed to consider the confession only against the 20 codefendant.’ ” (People v. Mitcham (1992) 1 Cal.4th 1027, 1045, 21 quoting from Richardson v. Marsh (1987) 481 U.S. 200, 207 [107 22 S.Ct. 1702, 95 L.Ed.2d 176].) 23 Because Mendoza pleaded no contest before the joint trial, 24 Petitioner’s Bruton claim lacks merit. Bruton is inapplicable when 25 the defendant’s accomplice’s trial is severed or, as in the instant 26 case, pleads no contest before trial. (People v. Richardson (2008) 27 43 Cal.4th 959, 1007.) “‘Bruton and its progeny provide that if the 28 prosecutor in a joint trial seeks to admit a nontestifying 20 1 codefendant’s extrajudicial statement, either the statement must be 2 redacted to avoid implicating the defendant or the court must sever 3 the trials. [Citation.]’” (Ibid.) 4 The People point out as well that Bruton’s scope was limited 5 in Richardson v. Marsh, supra, 481 U.S. 200. The court held that 6 when a nontestifying codefendant’s confession is redacted so that 7 it does not facially incriminate the defendant and the statement is 8 incriminating only when linked with evidence introduced later at 9 trial, the admission of the statement with a proper limiting 10 instruction will not violate the confrontation clause. (Id. at pp. 11 207-208, 211.) Under such circumstances, the court could properly 12 presume that jurors would follow a limiting instruction not to 13 consider the confession against the defendant, even if the 14 confession incriminated the defendant when considered in 15 connection with other evidence. (Id. at pp. 201-202, 208.) 16 The People contend that Mendoza’s statement does not 17 facially incriminate Petitioner, citing the following portion of 18 Mendoza’s statement: “The victim was walking into the shop as 19 [Mendoza] looked into his vehicle and saw the keys. Mendoza 20 said she told Chino that they should take the truck. There was an 21 altercation, at which time she got in the left rear seat, Chino got in 22 the driver seat, Lonely in the front passenger seat. They drove over 23 to Curly and picked him up.” The People contend that the 24 statement does not facially implicate Petitioner because Mendoza 25 did not identify any participants involved in the altercation. 26 Further, the court could properly presume that jurors would follow 27 a limiting instruction not to consider the confession against the 28 defendant, even if the confession incriminated the defendant when 21 1 considered in connection with other evidence. (Richardson v. 2 Marsh, supra, 481 U.S. at pp. 201-202, 208.) 3 Petitioner, in countering this argument, states that 4 Mendoza’s statement does not create a doubt as to what Mendoza 5 meant and directly implicated him in the crime. In addition, the 6 trial court characterized the statement as “extremely inculpatory.” 7 Whether or not Mendoza’s statement facially incriminated 8 Petitioner, if there was Bruton error, it was harmless. The 9 “analysis generally depends on whether the properly admitted 10 evidence is so overwhelming as to the guilt of the nondeclarant 11 that a reviewing court can say the constitutional error is harmless 12 beyond a reasonable doubt.” (People v. Archer (2000) 82 13 Cal.App.4th 1380, 1390.) The victim identified Petitioner as one of 14 the carjackers. Petitioner was driving the vehicle when it was 15 stopped by the police. Petitioner’s defense that the victim was 16 purchasing drugs was not believable. Petitioner’s statement to law 17 enforcement after his arrest and testimony at trial were 18 inconsistent. The properly admitted evidence was overwhelming 19 as to Petitioner’s guilt. 20 We note as well that the trial court did not err in ruling that 21 Mendoza’s statements to the police were not hearsay. A statement 22 is not hearsay if it is relevant to an issue in the case “‘merely 23 because the words were spoken ..., and irrespective of the truth or 24 falsity of any assertions contained in the statement.” (People v. 25 Fields (1998) 61 Cal.App.4th 1063, 1068.) As the trial court 26 properly instructed the jury, Mendoza’s statements were relevant 27 and admissible “as evidence that the defendant tried to create false 28 evidence or obtain false testimony,” without regard to the truth or 22 falsity of those statements. 1 2 We also reject Petitioner’s claim of cumulative error. Any 3 error was harmless, and any cumulative effect did not infringe on 4 Petitioner’s constitutional rights. (People v. Osband (1996) 13 5 Cal.4th 622, 688.) 6 LD 2 at 12-14. 7 3. 8 Petitioner’s claim of Bruton error is without merit. In Bruton, the 9 Supreme Court held that a defendant is deprived of his rights under the 10 Confrontation Clause when his nontestifying co-defendant’s confession 11 naming him as a participant in the crime is introduced at their joint trial, even 12 if the jury is instructed to consider that confession only against the co- 13 defendant. 391 U.S. at 135-36. The California Court of Appeal correctly 14 determined that Bruton was not applicable here because Mendoza pleaded no 15 contest before trial and was therefore not tried jointly with Petitioner. See, e.g., 16 Scott v. Felker, No. 06-1147, 2008 WL 5411477, at *9 (N.D. Cal. Dec. 29, 17 2008) (“Bruton is not applicable here because Petitioner was not tried jointly 18 with those who made the inculpatory statements.”). Analysis Furthermore, the Bruton rule only applies to hearsay statements, not to 19 20 statements that are offered for some other, nonhearsay purpose. See, e.g., 21 Quintana v. Hedgepeth, No. 08-6482, 2009 WL 2900333, at *16 (C.D. Cal. 22 Sept. 3, 2009) (concluding that Bruton was not implicated where the co- 23 defendant’s statement was not admitted for the truth of the matter asserted, but 24 rather as circumstantial nonhearsay evidence of consciousness of guilt). No 25 constitutional violation occurs when a nontestifying accomplice’s facially 26 incriminating confession is introduced for a proper nonhearsay purpose. See 27 Tennessee v. Street, 471 U.S. 409, 413-14 (1985). 28 /// 23 Here, Mendoza’s statements to police were not offered for the truth of 1 2 the matter asserted, that is, that Mendoza’s account of the crime was true. 3 Rather, Mendoza’s statements were introduced solely to explain why 4 Petitioner sought to have Mendoza provide false testimony at trial. Even if the Court assumes that admission of Mendoza’s statements to 5 6 police violated Bruton, habeas relief is not warranted because the admission of 7 Mendoza’s statements was harmless. See Lilly v. Virginia, 527 U.S. 116, 139- 8 40 (1999) (holding that a Bruton error claim, like any other Confrontation 9 Clause claim, is subject to harmless error analysis); Brecht, 507 U.S. at 637-38. 10 As discussed above, the evidence introduced at trial against Petitioner was 11 strong: Flores identified Petitioner at trial; Petitioner was arrested driving 12 Flores’s car; his defense that Flores lent him his car in exchange for drugs was 13 not believable; and he gave conflicting statements. Thus, it is not reasonably 14 likely that any alleged Bruton error had a substantial and injurious effect on the 15 jury’s verdict. Moreover, the trial court admonished the jury that it could only 16 consider Mendoza’s statements for the limited purpose of determining whether 17 Petitioner tried to create false evidence or obtain false testimony. 4 RT 931. 18 The jury is presumed to have followed its instructions. See Weeks, 528 U.S. at 19 234 ) (citing Richardson, 481 U.S. at 211). In sum, the Court cannot conclude that the state appellate court’s 20 21 rejection of Petitioner’s Bruton claim was an unreasonable application of 22 federal law. Petitioner is therefore not entitled to habeas relief on this claim. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 24 1 IV. 2 CONCLUSION 3 4 For the reasons discussed in detail above, the Petition is denied and the action is dismissed with prejudice. 5 6 Dated: October 9, 2015 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25
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