Jose Juarez v. W.L. Montgomery, No. 2:2018cv06562 - Document 14 (C.D. Cal. 2019)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Alka Sagar. IT IS ORDERED that the Petition for Writ of Habeas Corpus is denied and this action is dismissed with prejudice. (See document for complete details) (afe)
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Jose Juarez v. W.L. Montgomery Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE JUAREZ, Petitioner, 12 13 14 CASE NO. CV 18-06562-AS v. MEMORANDUM DECISION AND ORDER W.L. MONTGOMERY, Warden, Respondent. 15 16 17 I. INTRODUCTION 18 19 On July 30, 2018, Jose Juarez (“Petitioner”), a California 20 state prisoner proceeding pro se, filed a Petition for Writ of 21 Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. 22 No. 1). 23 accompanying Memorandum of Points and Authorities. 24 Dkt. No. 10). 25 state proceedings, including the Clerk’s Transcript (“CT”) and 26 Reporter’s Transcript (“RT”). 27 the Court issued an order advising Petitioner that he could file a (Dkt. On October 19, 2018, Respondent filed an Answer with an (“Ans. Mem.,” Respondent also lodged documents from Petitioner’s (Dkt. No. 11). On October 22, 2018, 28 Dockets.Justia.com 1 reply by November 19, 2018. 2 done so. (Dkt. No. 12). Petitioner has not 3 4 The parties consented, pursuant to 28 U.S.C. § 636(c), to the 5 jurisdiction of the undersigned United States Magistrate Judge. 6 (Dkt. Nos. 2, 9, 13). For the reasons discussed below, the Petition 7 is DENIED and this action is DISMISSED with prejudice. 8 9 II. PRIOR PROCEEDINGS 10 11 On March 19, 2015, after a joint jury trial with co-defendant 12 Carlos Omar Sanchez, a Los Angeles County Superior Court jury found 13 Petitioner 14 California Penal Code (“P.C.”) § 211 and evading a police officer 15 in violation of California Vehicle Code § 2800.2(a). 16 203-04). 17 used a firearm to commit the robbery, within the meaning of P.C. 18 12022.53(b). 19 Petitioner to nineteen years in state prison. guilty of second degree robbery in violation of (CT 194-95, The jury also found true the allegation that Petitioner (CT 194). On April 21, 2015, the court sentenced (CT 266-71). 20 21 Petitioner and his co-defendant appealed their convictions to 22 the California Court of Appeal, which issued an unpublished opinion 23 on February 2, 2015 affirming the judgment, but ordering that a 24 twenty dollar DNA assessment be stricken and Petitioner be awarded 25 376 26 Petitioner filed a petition for review in the California Supreme 27 Court (Lodgment No. 9), which summarily denied the petition on May 28 17, 2017. days of presentence custody (Lodgment No. 11). 2 credit. (Lodgment No. 8). 1 On February 13, 2018, Petitioner filed a habeas petition in 2 Los Angeles County Superior Court, which the court denied on March 3 2, 2018, because it raised claims that had already been raised and 4 denied on appeal. 5 Petitioner filed a habeas petition in the California Supreme Court, 6 which was summarily denied on July 11, 2018. 7 15). 8 2018. (Lodgment Nos. 12-13). On April 13, 2018, (Lodgment Nos. 14- The instant Petition was filed in this Court on July 30, 9 10 III. FACTUAL BACKGROUND 11 12 The California Court of Appeal reviewed Petitioner’s claims 13 on appeal together with the claims of co-defendant Sanchez. 14 following 15 decision on direct review, have not been rebutted with clear and 16 convincing evidence and must be presumed correct. 17 § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 18 2009). facts, taken from the California Court of Appeal’s 28 U.S.C. 19 20 In the early morning hours of May 30, 2014, Arnulfo 21 Robles was riding his bicycle on a sidewalk in Whittier, 22 California. 23 partially blocked Robles’s path. There were two people 24 on the motorcycle. The driver said, “Give me your phone.” 25 When Robles refused, the driver lifted up the back of 26 his shirt to reveal a handgun, put his fingers around 27 the 28 passenger then added, “Hurry up and give him your phone.” gun’s A motorcycle grip, and drove warned, 3 up from “Don’t behind make me.” The and The 1 Robles obliged, handing the phone to the passenger. The 2 motorcycle then sped away. 3 4 The entire encounter lasted about a minute. 5 Although both the driver and passenger were wearing 6 helmets, the helmets did not cover their eyes or noses, 7 and 8 streetlight. Robles estimated that he looked at the 9 driver’s face for approximately 10 to 15 seconds and at they had stopped “almost directly” under a 10 the 11 seconds. He could not tell what race they were. Robles 12 said the driver was wearing a white shirt, blue jeans, 13 and had on a black helmet. Robles said the passenger was 14 wearing a gray sweater and had on a black helmet; Robles 15 did not notice any writing on the sweater. passenger’s face for approximately four to six 16 17 After the motorcycle pulled away, Robles continued 18 to a friend’s house and, once there, called 911. He 19 reported the robbery and told the 911 operator that the 20 passenger looked to be 12 or 13 years old based on his 21 stature on the motorcycle. Robles also activated the 22 “find my iPhone” function on his phone. 23 24 The police dispatcher broadcast a description of 25 the motorcycle involved in the robbery, and a patrol car 26 soon 27 description. The officers in that car activated their 28 lights and sirens. The motorcycle’s driver then led them thereafter spotted a 4 motorcycle matching that 1 on a high-speed chase during which time the motorcycle 2 jumped on and off various freeways, sped more than 90 3 miles per hour, ran red lights and signals, and crossed 4 multiple lanes of traffic without looking. Both officers 5 were able to see that the driver was wearing a light- 6 colored shirt, blue jeans, and unlike Robles reported, 7 a white helmet; they saw the passenger wearing a gray 8 top and a black helmet. 9 10 Police helicopters assisted with the pursuit. The 11 observer in the first helicopter saw the driver wearing 12 a white shirt, blue pants, and like the officers but 13 unlike 14 passenger wearing “like a gray shirt” and a black or 15 dark-colored 16 helicopter watched the motorcycle disappear under a 17 freeway underpass and continue on with just the driver. 18 Thereafter, 19 motorcycle and disappear into a neighborhood on foot. Robles reported, helmet. the a The observer white observer saw the helmet, in driver and the the second leave the 20 21 Within five to ten minutes of losing sight of the 22 motorcycle’s occupants, police got word that Robles’s 23 iPhone was pinging from a house on South Concord Street. 24 The house was just 1.4 miles from the location of the 25 robbery. On a walkway right outside the house, police 26 discovered an abandoned motorcycle and helmet. Less than 27 25 minutes later, several police officers entered the 28 two-story house. The house was known to be inhabited by 5 1 squatters, and police found seven men - all in their 2 late teens, 20s, and 80s - inside. [Petitioner] was 3 hiding beneath insulation in the house’s crawl-space 4 attic, next to a bandana filled with live .38-caliber 5 rounds. He was wearing black shorts and a black shirt. 6 Sanchez was laying behind a couch on the first floor. He 7 was wearing a gray sweatshirt with the letters “CALI” on 8 the chest. Police found Robles’s pinging iPhone in the 9 second-floor bedroom; in the same bedroom, they 10 recovered a pair of jeans and two shirts, one of which 11 was a gray shirt with writing on the chest and left 12 sleeve (in the same size as the gray sweatshirt with the 13 letters “CALI”). Police also recovered a motorcycle 14 helmet inside the house. 15 16 The police transported Robles in a police cruiser 17 to a location two to three houses down from the house 18 where they found his iPhone. They told Robles they had 19 recovered his iPhone and brought him down “to look at 20 who we caught ... who we arrested.” Police then marched 21 [Petitioner], Sanchez, and at least two of the house’s 22 other occupants into the street, one at a time, for 23 approximately 30 seconds. Police did not ask any of those 24 men to put on a helmet or to sit atop a motorcycle. 25 Robles identified [Petitioner] as the driver and Sanchez 26 as the passenger. Robles did not identify Sanchez based 27 on his face, but rather because he “recognized” “his 28 body, his buil[d]” and recognized 6 the gray shirt. 1 Sanchez is five feet four inches tall. After Robles made 2 his identifications, the police said, “Good job, thank 3 you, things like that.” Although Robles freely admitted 4 that he was brought to the house “to identify or look at 5 the people who had taken [his] phone” and was expecting 6 to find the robbers, Robles explained that he was not 7 going to “just identify anyone,” and he did not identify 8 any of the other people he was shown as being involved 9 in the robbery. 10 11 (Lodgment No. 8 at 2-5). 12 13 IV. PETITIONER’S CLAIMS 14 15 16 Petitioner raises the following claims for federal habeas relief: 17 18 Ground One: Petitioner’s trial counsel rendered ineffective 19 assistance by failing to move to suppress Robles’s 20 field identification based on the loss of evidence. 21 22 Ground Two: The trial court erred by failing to instruct the 23 jury to begin deliberating anew after an alternate 24 juror was seated. 25 26 (Petition at 5, 9). 27 28 7 1 V. STANDARD OF REVIEW 2 3 The Antiterrorism and Effective Death Penalty Act of 1996 4 (“AEDPA”) “bars relitigation of any claim ‘adjudicated on the 5 merits’ 6 §§ 2254(d)(1) and (d)(2).” 7 (2011). 8 grant habeas relief only if the state court adjudication was 9 contrary to or an unreasonable application of clearly established 10 federal law or was based upon an unreasonable determination of the 11 facts. 12 highly deferential standard for evaluating state-court rulings, 13 which demands that state-court decisions be given the benefit of 14 the doubt.” 15 (citations omitted). in state court, subject only to the exceptions in Harrington v. Richter, 562 U.S. 86, 98 Under AEDPA’s deferential standard, a federal court may 28 U.S.C. § 2254(d). “This is a difficult to meet and Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 16 17 Petitioner raised Ground One is his petition on direct review 18 in the California Supreme Court (Lodgment No. 9), and he later 19 raised Grounds One and Two in his habeas petition in the California 20 Supreme Court. 21 without comment or citation to authority. 22 The Court “looks through” the California Supreme Court’s silent 23 denial to the last reasoned decision as the basis for the state 24 court’s judgment. 25 (“Where there has been one reasoned state judgment rejecting a 26 federal claim, later unexplained orders upholding that judgment or 27 rejecting the same claim rest upon the same ground.”); Cannedy v. 28 Adams, 706 F.3d 1148, 1159, as amended, 733 F.3d 794 (9th Cir. (Lodgment No. 14). Both petitions were denied (Lodgment Nos. 11, 15). See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) 8 1 2013) (“[W]e conclude that Richter does not change our practice of 2 ‘looking through’ summary denials to the last reasoned decision - 3 whether those denials are on the merits or denials of discretionary 4 review.”) (footnote omitted). 5 the Court of Appeal’s reasoned opinion addressing Grounds One and 6 Two on direct review. 7 (2010); see also Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir. 8 2009) (federal habeas courts “apply AEDPA deference to any state 9 court decision on the merits”). Therefore, the Court will consider Berghuis v. Thompkins, 560 U.S. 370, 380 10 11 VI. DISCUSSION 12 13 A. Ineffective Assistance of Counsel (Ground One) 14 15 In Ground One, Petitioner claims that his trial counsel was 16 ineffective by failing to move to suppress the field identification 17 of the witness, Robles, due to the loss of evidence.1 18 at 5, 9). (Petition 19 20 1. California Court of Appeal’s Opinion 21 22 23 The California Court of Appeal denied Petitioner’s ineffective assistance of counsel claim, stating: 24 25 26 27 28 1 On direct appeal in the California Court of Appeal and the California Supreme Court, Petitioner additionally argued that his trial counsel was ineffective for not moving to suppress the identification as unconstitutionally suggestive. (Lodgment Nos. 3, 9). His Petition here, however, does not mention this basis. 9 1 Police officers filled out field identification 2 cards on the five people other than [Petitioner] and 3 Sanchez found inside the South Concord Street house 4 along with Robles’s iPhone. At some point thereafter, 5 they lost those cards. [Petitioner and Sanchez] argue 6 that this error makes it impossible for them to identify 7 the other inhabitants of the South Concord Street house 8 and to reconstruct the showup procedure at which Robles 9 identified [Petitioner] and Sanchez, and violates due 10 process 11 suppression of material evidence, in violation of Brady 12 v. Maryland (1963) 373 U.S. 83 (Brady), or (2) the 13 destruction 14 California v. Trombetta (1984) 467 U.S. 479 (Trombetta). because of it constitutes material evidence, either in (1) the violation of 15 16 The 17 identification 18 Brady, prosecutors have a duty not to suppress evidence 19 that is favorable to the defense and material if that 20 evidence is in their possession. (People v. Masters 21 (2016) 62 Cal.4th 1019, 1066-1067.) Here, the field 22 identification cards were lost; they were accordingly 23 not in the possession of either the prosecutor or the 24 investigating agency. This is fatal to any Brady claim. 25 (People v. Lucas (2014) 60 Cal.4th 153, 221 (Lucas) 26 [“[t]he constitutional due process rights of a defendant 27 may be implicated when he or she is denied access to 28 favorable evidence in the prosecution’s possession,” police’s failure cards does to not 10 preserve violate the field Brady. Under 1 italics added], overruled on other grounds in People v. 2 Romero and Self (2015) 62 Cal.4th 1; People v. Whalen 3 (2013) 56 Cal.4th 1, 64 [Brady mandates disclosure of 4 evidence in the prosecution team’s “possession”].)3 5 6 [Fn. 3] 7 whether 8 favorable to the defense or material. We accordingly have no occasion to decide the field identification cards are either 9 10 The police’s failure to preserve the field 11 identification cards also does not violate Trombetta. 12 Trombetta applies when the state “fail[s] to preserve 13 evidence.” 14 Trombetta and its follow-on case, Arizona v. Youngblood 15 (1988) 488 U.S. 51, place two duties on police agencies 16 with regard to preserving evidence: If the evidence has 17 “apparent” “exculpatory value” and cannot be obtained 18 “‘by other reasonably available means,’” its destruction 19 violates due process; however, if the evidence might be 20 useful to the defense but does not have “apparent” 21 “exculpatory 22 process only if the police act in bad faith. (People v. 23 Carrasco 24 DePriest (2007) 42 Cal.4th 1, 41-42.) The names and 25 contact information of the five other people inside the 26 South Concord Street house does not have “apparent” 27 “exculpatory 28 reconstructing the showup with them would undermine or (Lucas, supra, value,” (2014) 59 value” its 60 Cal.4th destruction Cal.4th because 11 924, it at 221.) violates 961-962; is p. People unclear due v. whether 1 confirm 2 [Petitioner] and Sanchez. Moreover, there is no evidence 3 that the police acted in bad faith in losing the field 4 identification cards. Thus, [Petitioner and Sanchez] 5 cannot meet the pertinent standards for relief under 6 Trombetta and its progeny. Robles’s positive identifications of 7 8 [Petitioner and Sanchez] point us to two groups of 9 cases, suggesting that they establish that the loss of 10 the field identification cards is enough by itself to 11 warrant suppression of all of Robles’s identifications. 12 First, they cite People v. Ratliff (1986) 41 Cal. 3d 675 13 and People v. Posten (1980) 108 Cal.App.3d 633. To be 14 sure, both of these cases indicate that the destruction 15 of evidence relating to an out-of-court identification 16 by itself warrants suppression of that identification. 17 (Ratliff, at p. 690; Posten, at pp. 646-647.) But both 18 of these cases cite People v. Hitch (1974) 12 Cal. 3d 19 641 as support for their rule. (Ratliff, at p. 690; 20 Posten, at p. 646.) Our Supreme Court has subsequently 21 held 22 (People 23 Consequently, the Hitch-based rule in Ratliff and Posten 24 is no longer good law. Second, [Petitioner and Sanchez] 25 point us to three federal decisions that are at least 45 26 years old. (See United States v. Augello (2d Cir. 1971) 27 451 F.2d 1167; United States v. Bryant (D.C. Cir. 1971) 28 448 F.2d 1182; United States v. Heath (9th Cir. 1958) that v. “Hitch ... Johnson has (1989) 12 not 47 survived Cal.3d Trombetta.” 1194, 1234.) 1 260 F.2d 623.) They do not apply the pertinent legal 2 standard announced in Trombetta and are, for that reason 3 alone, irrelevant. 4 5 (Lodgment No. 8 at 10-13). 6 7 2. Analysis 8 9 To succeed on a Sixth Amendment ineffective assistance of 10 trial 11 counsel’s 12 performance prejudiced the defense. 13 U.S. 14 establishing both components. 15 390–91 16 deficient performance, a person challenging a conviction must show 17 that counsel’s representation fell below an objective standard of 18 reasonableness.” Richter, 562 U.S. at 104 (citation omitted). 19 Prejudice “focuses on the question whether counsel’s deficient 20 performance renders the results of the trial unreliable or the 21 proceeding fundamentally unfair.” 22 364, 372 (1993); accord Williams, 529 U.S. at 393 n.17. 23 a petitioner must establish that there is a “reasonable probability 24 that, but for counsel’s unprofessional errors, the result of the 25 proceeding would have been different,” Strickland, 466 U.S. at 694, 26 and “[t]he likelihood of a different result must be substantial, 27 not just conceivable,” Richter, 562 U.S. at 112. 28 errors must be “so serious as to deprive the defendant of a fair counsel 668, claim, a performance 687 (2000); (1984). petitioner was must deficient The Strickland, demonstrate and that the both that deficient Strickland v. Washington, 466 petitioner bears the burden of Williams v. Taylor, 529 U.S. 362, 466 13 U.S. at 687. “To establish Lockhart v. Fretwell, 506 U.S. That is, Thus, counsel’s 1 trial, a trial whose result is reliable.” 2 687. Strickland, 466 U.S. at 3 4 Here, Petitioner claims that his trial counsel provided 5 ineffective assistance by failing to move to suppress the victim’s 6 field 7 Petitioner argues that the identification evidence should have been 8 suppressed because the officers lost the identities of the other 9 individuals present during the identification, and “neither the 10 officers nor the victim could recall critical details of the 11 procedures employed.” identification of Petitioner. (Petition at 5, 9). (Id. at 9). 12 13 The field identification at issue took place by the house 14 where the officers had located the apparent robbery suspects and 15 the phone that had been taken from victim Robles. 16 that officers took him to the location about four hours after the 17 robbery incident. 18 that 19 including Petitioner and his co-defendant, Sanchez, but Robles 20 could not remember the order in which they were presented. 21 18). 22 of five people. 23 to him while he was seated in the back of a police car, and the 24 suspects were taken into the street about two houses away. 25 2162-2170; 5 RT 2417, 2421). 26 excluded 27 Petitioner and Sanchez. he was (CT 17). presented Robles testified At the preliminary hearing, he stated with three or four possible suspects, (CT At trial, he testified that he thought he was shown a total the (5 RT 2421). others as He testified that they were shown (4 RT Robles testified that he immediately possible (CT 19-20). 28 14 suspects, and he identified 1 Officer Merida, who was present for the identification, 2 testified that there were five other people in the house, aside 3 from Petitioner and Sanchez. 4 created for all of them, but the officers did not know what happened 5 to the cards. 6 did not list these five other witnesses, and they were not residents 7 of the house. (5 RT 2467-2468). 8 Petitioner, Sanchez, and “one or two” others were shown to the 9 victim as possible suspects, and the victim identified Petitioner 10 (CT 45). Field interview cards were (CT 45-46; 5 RT 2461, 2507-2508). The police report Officer Merida testified that and Sanchez as the perpetrators. (CT 46-47). 11 12 Petitioner has failed to show that there would have been any 13 merit to a motion to suppress the identification based on missing 14 evidence. 15 reasonably concluded that there was no Brady or Trombetta violation 16 to warrant excluding the identification. 17 when 18 “favorable to the accused, either because it is exculpatory, or 19 because it is impeaching.” 20 (2004); see Brady v. Maryland, 373 U.S. 83 (1963). 21 inapplicable here because the evidence at issue was lost by the 22 officers, not suppressed by the prosecution, and its loss left a 23 court no way to ascertain whether it was material or favorable to 24 Petitioner. 25 evidence, but a Trombetta violation occurs only when the lost or 26 destroyed evidence “possess[es] an exculpatory value that was 27 apparent before the evidence was [lost or] destroyed, and [is] of 28 such the a To the contrary, prosecution nature withholds Trombetta, that the the on California Court of Appeal A Brady violation occurs evidence that is material and Banks v. Dretke, 540 U.S. 668, 691 the other defendant 15 hand, would be Brady is applies unable to to lost obtain 1 comparable 2 California v. Trombetta, 467 U.S. 479, 489 (1984); United States 3 v. Bingham, 653 F.3d 983, 994 (9th Cir. 2011). 4 failure to preserve such evidence violates due process only if the 5 criminal defendant “can show bad faith on the part of the police.” 6 Arizona v. Youngblood, 488 U.S. 51, 58 (1988). 7 does not suffice. 8 Cir. 1997); see also United States v. Flyer, 633 F.3d 911, 916 (9th 9 Cir. 2011) (“Bad faith requires more than mere negligence or evidence by other reasonably available means.” Moreover, the Mere negligence Id.; Grisby v. Blodgett, 130 F.3d 365, 371 (9th 10 recklessness.”). 11 any missing evidence regarding the field identification would have 12 had apparent exculpatory value, or that the loss of such evidence 13 was the result of bad faith. Here, there is nothing in the record to suggest 14 15 Because a motion to suppress the field identification would 16 have been meritless, Petitioner’s trial counsel was not ineffective 17 in failing to make such a motion. 18 F.3d 710, 723 (9th Cir. 2017) (“A failure to make a motion to 19 suppress that is unlikely to succeed generally does not constitute 20 ineffective assistance of counsel.”); Zapien v. Martel, 849 F.3d 21 787, 796 (9th Cir. 2016) (petitioner did not receive ineffective 22 assistance of counsel when “[c]ompetent counsel could reasonably 23 have concluded that moving to exclude [evidence] on the grounds 24 Zapien now suggests would have seemed frivolous”); 25 v. Moore, 562 U.S. 115, 124 (2011) (“[T]he first and independent 26 explanation - that suppression would have been futile - confirms 27 that 28 Strickland, or at least that it would have been reasonable for the [trial counsel’s] See Petrocelli v. Baker, 869 representation 16 was see also Premo adequate under 1 state 2 California Court of Appeal’s determination that trial counsel was 3 not 4 identification in light of lost evidence was not contrary to, or 5 an unreasonable application of, clearly established federal law.2 court to ineffective reach by that failing conclusion.”). to move to Accordingly, suppress the the field 6 7 8 9 10 11 12 13 14 15 16 17 2 Although Petitioner does not argue, here, that suppression was warranted also because the field identification was “impermissibly suggestive,” that basis would also lack merit. For a witness identification procedure to be “impermissibly suggestive,” it must “give rise to a very substantial likelihood of irreparable misidentification.” Sexton v. Beaudreaux, 138 S. Ct. 2555, 2559 (2018) (internal quotation and citation omitted). Even then, suppression is not required unless the identification procedure was also unnecessary and otherwise unreliable based on the totality of the circumstances. Perry v. New Hampshire, 565 U.S. 228, 239 (2012); People v. Clark, 63 Cal. 4th 522, 556 (2016). The Supreme Court recently noted that it “has held that pretrial identification procedures violated the Due Process Clause only once,” in Foster v. California, 394 U.S. 440 (1969). Sexton, 138 S. Ct. at 2559. Foster involved “two highly suggestive lineups and ‘a one-to-one confrontation,’ which ‘made it all but inevitable that [the witness] would identify [the defendant].’” Id. (quoting Foster, 394 U.S. at 443). 18 19 20 21 22 23 24 25 26 27 28 The standard here, on habeas review of a state prisoner’s Strickland claim, is even harder to overcome. Indeed, the deference that this Court owes to the California Court of Appeal’s decision is “near its apex in this case, which involves a Strickland claim based on a motion that turns on general, fact-driven standards such as suggestiveness and reliability.” Id. at 2560. In this case, the California Court of Appeal concluded that the field identification procedure was not unduly suggestive in part because “the police showed Robles more than the number of persons involved in the crime; the police did not tell or otherwise intimate to Robles which persons he should select; and Robles did, in fact, select some suspects and not select others.” (Lodgment 8 at 15). The Court of Appeal thus denied Petitioner’s claim that his trial counsel was ineffective by failing to move to suppress the field identification due to its suggestiveness. (See id. at 9-16). Because this Court cannot say that determination was unreasonable, Petitioner’s claim on that basis would fail. 17 1 B. Instructional Error (Ground Two) 2 3 In Ground Two, Petitioner claims that the trial court violated 4 his rights by failing to instruct the jury to begin deliberating 5 anew after an alternate juror was seated. (Petition at 5). 6 7 1. California Court of Appeal’s Opinion 8 9 10 The California Court of Appeal rejected Petitioner’s claim, stating: 11 12 The parties presented evidence for four days; the 13 jury was instructed on the law and the parties made their 14 closing arguments on the fifth day. The jury began to 15 deliberate at 4:01 p.m. on that fifth day and deliberated 16 for 27 minutes before breaking for the evening. The next 17 morning, the trial court excused one of the jurors and 18 substituted in one of the alternate jurors. When the 19 court did so, the court instructed the jury to “[g]o 20 back 21 deliberations.” The jury deliberated for 17 minutes 22 prior to lunch and 92 minutes after lunch before reaching 23 its verdicts. [Petitioner] and Sanchez argue that the 24 court’s failure to tell the jury that it needed to 25 disregard 26 substitution violated their right to a 12-member jury 27 under the California Constitution. Because this claim 28 turns on the application of law to undisputed facts, our to the its deliberation deliberations 18 room and occurring begin prior to your the 1 review is de novo. (People v. Christman (2014) 229 2 Cal.App.4th 810, 815.) 3 4 A trial court has the discretion under section 1089 5 to discharge a juror in the midst of deliberations and 6 to have “an alternate ... take a place in the jury box, 7 ... subject to the same rules and regulations as though 8 the alternate juror had been selected as one of the 9 original jurors.” To give effect to the California 10 Constitution’s guarantee that a criminal jury “shall 11 consist of 12 persons” (Cal. Const., art. I, § 16) and 12 to 13 deliberations of those “12 persons,” a court may only 14 exercise its power to substitute in an alternate juror 15 if it “instruct[s] the jury to set aside and disregard 16 all past deliberations and begin deliberating anew.” 17 (People v. Collins (1976) 17 Cal. 3d 687, 694, overruled 18 on other grounds in People v. Boyette (2002) 29 Cal.4th 19 381, 20 Cal.App.4th 552, 558-559 (Renteria); accord, CALCRIM No. 21 3575 [so instructing].) A trial court does not satisfy 22 this requirement by telling the jury to “‘resume their 23 deliberations starting over with the new trial juror’” 24 (People 25 (Martinez), italics omitted); by telling the jury to 26 start its deliberations “‘from scratch so that [the 27 alternate juror] has full benefit of everything that has 28 gone on ... up to the present time’” (People v. Odle ensure 462, v. the fn. jury’s 19; Martinez verdict People (1984) 19 v. 159 is a product Renteria Cal.App.3d of (2001) 661, the 93 665 1 (1988) 45 Cal. 3d 386, 405); or by implicitly treating 2 the 3 responding to the prior jury’s request for a readback of 4 testimony (People v. Guillen (2014) 227 Cal.App.4th 934, 5 1030 (Guillen)). prior jury’s deliberations as effective by 6 7 Under these standards, the trial court’s 8 instruction in this case was deficient. The court told 9 the jury to “begin [its] deliberations,” but the jury 10 had by that point already been in deliberations for 27 11 minutes. To be sure, as we discuss below, it is far from 12 clear that the jury in that brief time did more than 13 discharge its first duty to select a foreperson. But the 14 jury had met to deliberate, and the trial court’s failure 15 to 16 deliberations was error. (Accord, Martinez, supra, 159 17 Cal.App.3d at p. 665.) instruct the jury to “disregard” any prior 18 19 This error, however, does not always mandate 20 reversal. (Renteria, supra, 93 Cal.App.4th at p. 559.) 21 Instead, reversal is required only if it is reasonably 22 probable that a “more favorable verdict would have been 23 returned had the jury been properly instructed following 24 the substitution.” (Martinez, supra, 159 Cal.App.3d at 25 p. 665, citing People v. Watson (1956) 46 Cal.2d 818, 26 836.) In assessing whether such a reasonable probability 27 exists in this context, courts look to (1) “‘whether the 28 case is a close one,’” and (2) a “‘compar[ison of] the 20 1 time the jury spent deliberating before and after the 2 substitution 3 Proctor (1992) 4 Cal.4th 499, 537.) The two factors 4 interact: Where a jury has convened for a sufficient 5 period of time prior to the substitution for it to have 6 deliberated on the merits and where it is a close case, 7 courts 8 reasonably probable. (Renteria, at pp. 560-561 [jury 9 deliberates for “some hours” prior to substitution, 10 deliberates for “30 minutes” afterwards, and the case is 11 “close”; reversal warranted]; Martinez, at pp. 665-666 12 [jury deliberates for two and one-quarter hours prior to 13 substitution, deliberates for six days afterwards, and 14 the case is “close”; reversal warranted].) Where the 15 case is not close or the pre-substitution deliberations 16 are “minimal,” courts have declined to hold that a 17 different result is reasonably probable. (Proctor, at 18 pp. 536-538 [jury deliberates for less than an hour prior 19 to substitution, deliberates for two and one-half days 20 afterwards, and “strong evidence” against the defendant; 21 reversal not warranted]; Guillen, supra, 227 Cal.App.4th 22 at pp. 1031-1032 [jury deliberates briefly prior to 23 substitution, 24 strong evidence on lesser included offense on which 25 guilty verdict was returned; reversal not warranted].) have of the alternate concluded that deliberates a nine juror.’” different days (People result afterwards, v. is and 26 27 Applying these factors, we conclude a different 28 verdict is not reasonably probable in this case. As we 21 1 discuss below when assessing the sufficiency of the 2 evidence, 3 overwhelming, but this is also not a “close case.” More 4 importantly, the jury in this case only met for 27 5 minutes prior to the substitution; this is a “minimal” 6 amount of time, not enough for the jury to engage in any 7 meaningful deliberation on the merits that it would need 8 to be told to disregard. What is more, the jury then 9 took a far greater amount of time - indeed, four times 10 as long as its pre-substitution meeting - to deliberate 11 once the alternate juror joined the jury. On these facts, 12 the instructional error does not warrant reversal. the evidence in this case is far from 13 14 (Lodgment No. 8 at 6-9) 15 16 2. Analysis 17 18 Because habeas relief under § 2254 is available only for 19 violations of clearly established federal law, challenges to jury 20 instructions in state trials generally do not warrant federal 21 habeas relief. 22 Cir. 1983); Hernandez v. McGrath, 595 F. Supp. 2d 1111, 1141 (E.D. 23 Cal. 2009) (“Failure to give an instruction which might be proper 24 as a matter of state law does not amount to a federal constitutional 25 violation.”). 26 only if the “instruction by itself so infected the entire trial 27 that the resulting conviction violates due process.” 28 v. Sarausad, 555 U.S. 179, 191 (2009) (citation and internal See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Instructional error warrants federal habeas relief 22 Waddington 1 quotation marks omitted); Middleton v. McNeil, 541 U.S. 433, 437 2 (2004) (per curiam); Estelle v. McGuire, 502 U.S. 62, 72 (1991); 3 Dunckhurst 4 petitioner challenging the failure to give an instruction bears an 5 “especially heavy” burden because “[a]n omission, or an incomplete 6 instruction, is less likely to be prejudicial than a misstatement 7 of the law.” 8 Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997); Hendrix 9 v. Vasquez, 974 F.2d 1099, 1106 (9th Cir. 1992). v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). A Henderson v. Kibbe, 431 U.S. 145, 155 (1977); Whether a 10 constitutional violation occurred must be evaluated in the context 11 of 12 (including the arguments of counsel). 13 Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995). 14 if a constitutional error occurred, federal habeas relief remains 15 unwarranted unless the error caused prejudice, i.e., unless it had 16 a substantial and injurious effect or influence in determining the 17 jury’s verdict. 18 curiam) (citing Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). the instructions as a whole and the entire trial record Estelle, 502 U.S. at 72; Moreover, Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per 19 20 Here, Petitioner seeks relief due to the trial court’s failure 21 to 22 substituted an alternate juror. 23 established constitutional right to such an instruction. 24 v. Bock, 271 F. App’x 520, 523 (6th Cir. 2008) (finding no Supreme 25 Court authority that “clearly establishes a constitutional right 26 to have the jury instructed to deliberate anew after an alternate 27 is empaneled”); Peek v. Kemp, 784 F.2d 1479, 1485 (11th Cir. 1986) 28 (petitioner instruct the jury suffered to no begin deliberations after it However, there is no clearly constitutional 23 anew deprivation See Tate of his 1 constitutional rights when the trial court substituted a juror 2 without instructing the jury to begin its deliberations anew); 3 United States v. Evans, 635 F.2d 1124, 1128 (4th Cir. 1980) 4 (rejecting defendant’s contention that his rights were violated 5 due to the trial court’s failure to specifically instruct the jury 6 to begin deliberations anew after addition of alternate juror 7 because “[n]othing precluded the jury from starting from the very 8 beginning all over again,” and “[t]he speculative assertion of 9 prejudice from the unexceptional instruction, to which no objection 10 was raised, was insufficient to justify reversal”); Ortega v. 11 Seibel, 2017 WL 3033421, at *15 (C.D. Cal. July 12, 2017) (noting 12 that federal courts in this and other circuits have indicated that 13 there is no constitutional requirement to instruct a jury to begin 14 deliberations anew upon seating an alternate juror (citing cases)); 15 Hernandez v. McGrath, 595 F. Supp. 2d 1111, 1141 (E.D. Cal. 2009) 16 (finding no Supreme Court authority requiring that a specific 17 instruction be given to the jury after an alternate has been 18 substituted for a deliberating juror); Hernandez v. Jacquez, 2011 19 WL 1155465, at *6 (C.D. Cal. Feb. 22, 2011) (same); Venegas v. 20 Uribe, 2011 WL 4104693, at *7 (C.D. Cal. July 29, 2011) (same); 21 Baca v. Scribner, 2008 WL 850309, at *6 (E.D. Cal. Mar. 28, 2008) 22 (same). 23 law, the trial court’s failure to provide the instruction did not 24 violate Petitioner’s clearly established constitutional rights. Thus, regardless of whether it was error under California 25 26 Furthermore, the California Court of Appeal appropriately 27 applied harmless error analysis to this issue. 28 v. Pulido, 555 U.S. 57 (2008) (instructional errors that do not 24 See, e.g., Hedgpeth 1 “categorically ‘vitiat[e] all the jury's findings’” are subject to 2 harmless error analysis); Clark v. Brown, 450 F.3d 898, 904 (9th 3 Cir. 4 analysis). The California Court of Appeal found no prejudice in 5 the court’s 6 deliberations anew after substituting a juror, particularly because 7 the jury had met for only twenty-seven minutes prior to the 8 substitution, and they deliberated for “four times as long” after. 9 (Lodgment 8 at 9). 2006) trial (instructional error failure to is subject instruct to the harmless jury to error begin As the Court of Appeal pointed out, the twenty- 10 seven minutes of pre-substitution deliberation was “a ‘minimal’ 11 amount of time, not enough for the jury to engage in any meaningful 12 deliberation on the merits that it would need to be told to 13 disregard.” (Id.). The Court cannot say that the Court of Appeal’s 14 finding of no prejudice was objectively unreasonable. 15 v. Seibel, No. 2017 WL 033421, at *16 (C.D. Cal. July 12, 2017) 16 (no prejudice in state trial court’s failure to instruct jury to 17 begin deliberations anew with alternate juror in part because “the 18 jury spent less time deliberating before the substitution — for 1 19 hour and 15 minutes — than after the substitution — for 1 hour and 20 40 21 participated 22 Hernandez v. Jacquez, 2011 WL 1155465, at *8 (C.D. Cal. Feb. 22, 23 2011) (fact that jury spent nearly same amount of time deliberating 24 both before and after substitution “supports the conclusion that 25 petitioner was not prejudiced by the trial court's failure to 26 instruct the jury to begin deliberations anew”); Baca v. Scribner, 27 2008 WL 850309, at *6 (E.D. Cal. Mar. 28, 2008) (no prejudice in 28 state court’s failure to instruct jury to begin deliberations anew minutes,” which in the “indicates that deliberations 25 the alternate leading to the See Ortega juror fully verdicts”); 1 when alternate juror was seated after less than three hours of 2 deliberation, and jury proceeded to deliberate for seven days with 3 alternate juror before reaching verdict). 4 5 Accordingly, the California Supreme Court’s rejection of 6 Petitioner’s Ground Two was not contrary to, or an unreasonable 7 application of, clearly established federal law. 8 9 VII. ORDER 10 11 For the reasons stated above, IT IS ORDERED that the Petition 12 for Writ of Habeas Corpus is denied and this action is dismissed 13 with prejudice. 14 15 DATED: January 15, 2019. 16 /s/ __________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 26
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