Opinion
CV 23-938-JVS(E)
01-03-2024
GINO CERVANTES, Petitioner, v. SHAWN MOORE, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on February 6, 2023. Respondent filed an Answer on October 3, 2023. Petitioner filed a Reply on November 29, 2023 .
BACKGROUND
In 2017, a Los Angeles Superior Court jury found Petitioner guilty of assault with a semi-automatic firearm upon Jeffrey Kirby, assault with a firearm upon Javier Briceno and possession of a firearm by a felon (Reporter's Transcript ("R.T.") 3019-20). The jury found to be true allegations that, in connection with the assaults on Kirby and Briceno, Petitioner personally used a firearm and personally inflicted great bodily injury (R.T. 3019-21). The jury found Petitioner not guilty of the attempted murder of Kirby and not guilty of assault with a stun gun or taser (R.T. 3018-19, 3021). Petitioner received a total sentence of 29 years and four months in state prison (R.T. 4212).
On Petitioner's first direct appeal, the California Court of Appeal affirmed the convictions, but remanded to afford the Superior Court an opportunity to exercise discretion whether to strike the firearm enhancements under a then-recent amendment to California Penal Code section 12022.5(c) (Doc. 12-1). The California Supreme Court summarily denied review (Doc. 12-3).
On remand, the Superior Court denied Petitioner's request to strike the firearm enhancements (see Doc. 12-4). On Petitioner's second direct appeal, the California Court of Appeal affirmed in all respects (Doc. 12-4). The California Supreme Court again summarily denied review (Doc. 12-6).
Petitioner also filed several habeas corpus petitions in the state courts (see Doc. 12-7, 31-1, 31-3, 31-5, 31-6). The state courts denied all of these petitions (see Doc. 12-8, p. 27, 22, p. 2, 31-2, 31-4).
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Cervantes, B283528 (Doc. 12-1). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slpyik v. Yates, 556 F.3d 747, 749 n.l (9th Cir. 2009).
The Javier B. Shooting
On January 15, 2015, Javier B. was outside his apartment building with his younger brother when he was shot in the knee. Javier provided three different accounts of what happened in three different interviews with the police.
At the hospital shortly after the shooting, he told Officer Gitana Gotay that he was shot in the parking lot of a liquor store by masked individuals traveling in a light blue van. Upon further questioning, he told Officer Gotay he was unsure the suspects were masked because the van's windows were tinted and it was raining. When Detective Terrill West arrived at the hospital, Javier told him the suspects in the blue van were African-American and he was walking on the street rather than
in the parking lot.
Two days later, Javier spoke with Detective Scott Crowe at the hospital. Javier told Detective Crowe he had just returned from Allan's liquor store and was hanging out with his younger brother in the back of the apartment complex, smoking marijuana. After about 10 to 15 minutes, he saw someone "posted up" in the courtyard area. He recognized the individual as "Sneeze," someone he used to smoke marijuana with at Birmingham High School. He thought Sneeze wanted to smoke with him, so he asked, "What's up?" Sneeze approached him, asking, "You fucked my lady. You still with that?" Javier immediately replied, "No." Sneeze pulled a revolver out of his sweatshirt pocket, pointed it at Javier's feet, fired twice, and hit him in the kneecap. He then ran back through the courtyard to the street and left in his car. Javier explained he had dated Sneeze's girlfriend and the mother of Sneeze's child while Sneeze was in custody. Javier denied Sneeze wanted to kill him; Javier believed, "he just wanted to make me dance."
Javier refused to further identify or name the person who shot him because he did not want to be a snitch. Javier also refused to look at or identify anyone from a photographic six-pack shown to him the following week. Detective Crowe's investigation revealed that Cervantes's nickname is "Sneezy" and he has a child with Ashley S., whom Javier also dated. At the preliminary hearing, Javier denied he was shot in the knee and had to go to the hospital.
At trial, Javier refused to testify. In a hearing outside the presence of the jury, he denied Cervantes was the shooter and questioned why he had to testify at all. He felt the court was "pushing me to say something when it's not even him." Javier's testimony at the preliminary hearing and at the hearing outside the presence of the jury was read to the jury.
The People admitted into evidence transcripts of calls between Ashley and Cervantes. In them, Cervantes indicated he disapproved of Ashley's friendship with other men because he was afraid she would cheat on him. They also argued over someone named Javier.
Javier's mother testified for the prosecution at trial. She stated she lived in an apartment with her husband and their three sons. On January 10, 2015, she was inside the apartment while Javier and her younger son were outside. Later, she heard a noise that sounded like trash cans falling. Soon after, the police came to the apartment building to investigate a shooting. Javier's mother realized her son had been shot. She next saw Javier at the hospital where he was being treated for the injury to his knee.
Deputy Rodolfo Urrea worked for the Los Angeles County Sheriff's Department and was assigned to main lock-up. On the morning of February 15, 2017, Deputy Urrea was unloading the county inmates at court when he heard a conversation between Javier and Cervantes. One of them told the other to "come up
with a good lie so it is believable."
The Jeff K. Shooting
A separate shooting occurred on June 14, 2015, about one mile from Javier's apartment. At approximately 3:00 a.m. that morning, Jeff K. was smoking cigarettes and drinking beer with his friends, Jonathan V. and Jose T. All three lived in the same apartment complex. Jeff had snorted methamphetamine earlier that night. A gold colored sedan pulled up and a woman and two men exited the car. One of the men had a black revolver in his hand. The woman grabbed Jeff, who tried to pull away. The man shot the gun in the air and then pointed the gun at Jeff, telling him to stand still. He then shot Jeff in the arm.
Jeff heard the other man use a taser on Jonathan, who screamed. After he was shot, Jeff managed to get away from the woman. The man with the taser began to chase him and tased him "a little bit," but not enough to stop him from running to his apartment for help. Jeff's older brother called the police. A neighbor who lived in the same apartment complex heard voices and the gunshots. She called the police as well.
In the 911 recording, Jeff can be heard telling his brother that "Gino" shot him. The officers responding to the call found Jeff laying on the floor of his apartment. Jeff told them "Gino" shot him due to a dispute over a woman they had both dated. The responding officers observed Jeff to be confused and in
shock.
Jeff was reluctant to identify his assailants. He testified at trial that some people, including a man known as "Loco," had warned him not to testify. When he was interviewed by the police, Jeff stated it was too dark to see his assailants. However, the responding officer testified he patrolled the area three nights a week and had observed that the alley where the shooting occurred was usually lit all night. Although Jeff identified Cervantes as the shooter from a photographic six-pack, he qualified that identification at trial by stating he was under the influence of morphine at the time.
Jeff testified he and Cervantes had a fistfight a few weeks before the shooting at a bar. On the day before the shooting, a woman named Smiley tried to set up a rematch between the men, but it did not take place. As a result of their prior altercation, Jeff said, people in the neighborhood began to circulate a theory that Cervantes shot Jeff. Jeff testified he was influenced by these rumors.
At the preliminary hearing, Jose testified he left before the assailants got out of the car and did not see them. He also testified he did not speak English so did not understand what was said that night. He told Detective Crowe that he did not want to talk about what happened because he heard someone was going to get him and he had a family. At trial, Jose was unavailable to testify. His preliminary hearing testimony was
read into the record. The police recovered two shell casings from the alley where Jeff was shot.(Doc. 12-1, pp. 2-6).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. A juror's use of a translation app allegedly constituted prejudicial misconduct (Claim One);
2. Petitioner allegedly was denied the effective assistance of counsel when Petitioner's counsel failed to seek to exclude certain testimony (Claim Two);
3. On remand, the sentencing court allegedly erred by failing to reconsider the entire sentence (Claim Three);
4. Newly discovered evidence allegedly entitles Petitioner to a new trial under former California Penal Code section 1473(b)(3)(a) (Claim Four); and
5. Petitioner allegedly was denied the effective assistance of counsel when Petitioner's counsel failed to introduce the "new evidence" at trial and, later, when counsel failed to present the "new evidence" to the sentencing court on remand (Claim Five).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000) .
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert, dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103; see also Shinn v. Kayer, 592 U.S. Ill. 141 S.Ct. 517, 520 (2020) (per curiam). "If this rule means anything, it is that a federal court must carefully consider all the reasons and evidence supporting the state court's decision." Mays v. Hines, 141 S.Ct. 1145, 1149 (2021).
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 142 S.Ct. 1510, 1528 (2022) (under AEDPA, federal habeas court must "assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim") (citation and quotations omitted); Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011), cert, denied, 563 U.S. 1029 (2011) .
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
For the reasons discussed below, the Petition should be denied and dismissed with prejudice.
The Court has read, considered and rejected all of Petitioner's arguments. The Court discusses herein what the Court understands to be Petitioner's principal arguments. The Court assumes arguendo Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Ayala v. Chappell, 829 F.3d 1081, 1095-96 (9th Cir. 2016), cert, denied, 583 U.S. 890 (2017); Franklin v. Johnson, 290 F.3d 1223, 1232-33 (9th Cir. 2002). To the extent any of Petitioner's claims may still be unexhausted, the Court denies the claims as not "colorable." See Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (federal habeas court may deny on the merits unexhausted claims that are not "colorable").
I. Petitioner is Not Entitled to Federal Habeas Relief on Claim One.
A. Background
During deliberations, the trial court excused Jurors Nos. 9 and 10 because of their travel plans and family responsibilities (R.T. 2703-04, 2707-09). After replacing these jurors, the trial court instructed the newly reconstituted jury to "set aside and disregard all past deliberations and begin new deliberations all over again . . . and decide this case as if those earlier deliberations had not taken place" (R.T. 2709-10). As the trial court was so instructing the jury, the following exchange occurred:
The Court: Juror No. 4, you've got to be kidding me.
You're not really checking your phone right now, are you?
Juror No. 4: I'm just trying to translate the word, some English words that I don't understand.
The Court: Put your phone away, please.
Juror No. 4: Yes, sir.(R.T. 2709-10).
After the jury was excused for the day, the following exchange occurred:
[Petitioner's counsel]: Juror No. 4 indicated that he was using his cellphone so that he could translate
what the court was saying as the court was reading jury instructions and, by the time Juror No. 1 - I'm sorry - Juror No. 7 began talking about his doctor's appointment, Juror No. 4 was back on his phone.
I am concerned that Juror No. 4 does not understand, has not understood the process of what is going on here in terms of the evidence or that he does not understand the jury instructions because of language issues.
So I would ask the court to conduct a hearing with Juror No. 4 and determine whether or not Juror No. 4 is actually capable and competent to sit.
The Court: I can do that.
I can't believe that that didn't come up during jury selection. Normally anyone who has any type of moderate difficulty with language blows that all out of proportion in order to get out of jury service. I don't recall him doing anything like that. . . .
[The Prosecutor:] He's never - my recollection of the voir dire process is he never spoke in the English language that was difficult to understand, and he's a student in
computer science. That's my recollection. . . .
The Court [to Petitioner's counsel]:
I don't have to have a hearing. You're requesting it.
[Petitioner's counsel:] I think I'm duty-bound to request it. He says he's using a translator on his phone to translate the court's instructions.
The Court: I read 45 minutes of instructions the other day. He didn't say a word about any of that nor did he have his phone out, because I was looking.
[The Prosecutor:] I don't remember what he actually said in court just now, but I know he said he was looking up a word. I don't know if he said it was about the instruction or not.
The Court: Maybe he was playing words with friends.
[The Prosecutor:] Did he actually say "instruction"?
The Court: No.
[The Prosecutor:] I don't think he said "instruction" right now. I could be wrong.
The Court: I don't think so. I think he's playing words with friends, don't you?
[Petitioner's counsel:] Before we go, is it possible just to hear what he said? I'd like to know what he said.
The Court: I will inquire on Monday.(R.T. 2713-16) .
On Monday, the following exchange occurred:
The Court: . . . You're requesting a hearing with regards to Juror No. 4 and the statement that he made about his English language capabilities?
[Petitioner's counsel:] Yes, your honor.
The Court: All right. Can you ask Juror No. 4 to step in, please.
[Petitioner's counsel:] And would the court inquire as to whether or not he's using a translator service either in court during trial and/or in deliberations, your Honor.
The Court: There's no translator.
[Petitioner's counsel:] It's on his phone. I believe he's using his phone for translation.
The Court: Oh. Okay.
[Petitioner's counsel:] I could be wrong.
The Court: All right. Juror No. 4 has joined us.
Good morning, sir.
Juror No. 4: Good morning, sir.
The Court: I wanted to just ask you a couple of questions about what happened the other day when I asked you about why you were
on your phone, and you said that you were translating a word on your phone? Juror No. 4: Yeah.
The Court: Okay.
Juror No. 4: I mean, some words which I don't understand.
The Court: Okay. Did you hear when I was -- when we were selecting the jury there were a number of jurors who said, "I don't understand English, and I don't really understand what's going on here," and they got excused from the jury. You didn't mention anything at that time, which led me to believe you don't have any problems with language.
Am I right?
Juror No. 4: Yeah. Because when I was in that building -The Court: Yes.
Juror No. 4: -- and there was like if you are citizen and if you pass the citizen's exam, like I don't know English, that won't be [sic] work. So I was like I have to be here, so -
The Court: Okay. You work in computer science; is that right?
Juror No. 4: Yeah.
The Court: Okay.
Juror No. 4: I'm studying, I mean.
The Court: I'm sorry?
Juror No. 4: I'm studying, not working.
The Court: Studying.
Where are you studying?
Juror No. 4: Santa Monica College.
The Court: Okay. You're taking other classes, as well?
Juror No. 4: Yeah.
The Court: How many other classes?
Juror No. 4: I got two other classes.
The Court: What are some of the other classes you're taking?
Juror No. 4: Math and English.
The Court: You're taking English. What kind of stuff are you studying in English? Is it literature? Are you reading? Is it - -
Juror No. 4: Reading skill, writing.
The Court: Okay. How long have you been in this country?
Juror No. 4: Six years. Six, seven.
The Court: How old are you?
Juror No. 4: 24.
The Court: Have you been using the translator on your phone at other points in the trial either during while [sic] you were hearing testimony or back in the
deliberation room or just that one time the other day?
Juror No. 4: Sometimes like because I have app on my mobile whenever I -- like I don't understand anything, I just translate it, whenever like in the jury room or outside at school, everywhere.
The Court: Okay. One of the instructions that I gave you was if there's any words that you don't understand I'll define -- if there's any -- strike that. If there's any words that are not sort of regular non-legal words, I'll define them for you. But I should also add to that that if there's any words that you don't understand, just ask me. Okay? I don't want you using your phone to do the translating because the meaning that we use here in a courtroom might be different. Okay?
Juror No. 4: Yeah, that's true.
The Court: So I need you to ask me if there's any words, whether they're legal words or any other words, that you're not sure of the meaning. Ask me, and I'll give you the definition.
Juror No. 4: Okay. Thank you.
The Court: I don't want you really using your phone to do that.
Juror No. 4: Sorry about that.
The Court: It's okay.
Juror No. 4: Okay.
The Court: But it seems like you're conversing just fine in English. You're not having any difficulty having a conversation with me.
Juror No. 4: I know. That's why I'm just some words that I don't understand. Otherwise I can deal with it.
The Court: Okay.
Juror No. 4: Yeah.
The Court: That's fine.
Do you have any questions, Mr. Darden?
[Petitioner's counsel:] If I might.
The Court: Sure.
[Petitioner's counsel:] Good morning.
Juror No. 4: Good morning.
[Petitioner's counsel:] You say you're taking a reading skill class?
Juror No. 4: Yeah.
[Petitioner's counsel:] What is the exact title of the class; do you know?
Juror No. 4: I used to go to the Valley College, and there was like English 368 Class. It's
before like one or two classes of 101.
I think it's 101. But I don't know the structure of Santa Monica. They have like an English 26 something. 26, I think.
[Petitioner's counsel:] That's a basic English course?
Juror No. 4: A what?
Petitioner's counsel: Is it a basic English course?
Juror No. 4: Yeah. Because I took an assessment test. I got like the lower.
[Petitioner's counsel:] Okay. Have you taken any courses on speaking English?
Juror No. 4: No. I didn't take any course.
[Petitioner's counsel:] Okay. And so sometimes when people were testifying and the judge was talking, you used your translator?
Juror No. 4: Not like -
[Petitioner's counsel:] Sometimes? Juror No. 4: Sometimes. Not all the times.
[Petitioner's counsel:] Okay. And sometimes in the jury room?
Juror No. 4: Yeah.
[Petitioner's counsel:] Okay. Juror No. 4: Sometimes I just -- I mean, like try to find out like the sentence, and otherwise I'll just keep in my mind and - -[Petitioner's counsel:] How about the law? When the judge was reading the law, is that when you needed
the translator, also?
Juror No. 4: No. Just some words like I'm so curious about it, and I just wanted to know.
[Petitioner's counsel:] All right. Thank you.
The Court: Do you have any questions, Mr. Zink?
[The Prosecutor:] No.
The Court: Just a couple more.
Where did you learn to speak English?
Juror No. 4: After I came in U.S. I mean, I had classes in my country, but it was not printed [sic] like a major class.
The Court: Your country is what?
Juror No. 4: India.
The Court: All right. Thank you very much.(R.T. 3001-06) .
Petitioner's counsel then argued that Juror No. 4 should be removed for alleged misconduct and because, assertedly, it was "not clear that [Juror No. 4] has an understanding of this process or what's going on. ..." (R.T. 3007). After argument from both counsel, the Court ruled:
I'm going to decline your invitation to remove the juror . . . and I would be making that same decision whether we had any alternates or not.
First of all, he is able to converse with me and with counsel here in this hearing without any difficulty. Some of what he was saying was difficult to understand because he spoke with an accent and he spoke quickly and it was sort of run on sentences, but that doesn't portray a lack of ability used to speak English or to understand. He is taking college classes . . . classes in computer science . . . he's been in the country for six years apparently, from 18 to 24. He spoke some English before he got here. He's spoken more since he's been here. He's conversing with us.
Would it be better if he had not used the translator on his phone to define a couple of words. Of course. But I did think that he was sincere in his pledge to not do that anymore and to ask me if he needs definitions of any words that come up in the case from here on out, and I simply don't think that the couple of times -- or handful of times, even -- that he used the translator on his phone to define a word here or there during the trial constitutes a sufficient showing of misconduct to remove him from this case. . . .
He shouldn't have been doing it [using the translator] either in the jury box during testimony, he shouldn't have been doing it in the hallway or at home or wherever else he was doing it, and he shouldn't have been doing it in the deliberation room. I'm agreeing with that.
I just don't think his actions are of such an egregious nature that they rise to the level of jury misconduct necessitating his removal, especially considering his pledge to not do it anymore. We have a brand-new jury starting with brand-new deliberations that have not even begun yet. They haven't even gone back to the deliberation room as a new jury. So, in a sense, anything that happened the other day while that jury was deliberating is of no moment.(R.T. 3008-10).
The California Court of Appeal ruled that Petitioner was not prejudiced by Juror No. 4's use of the app to translate words during trial (Doc. 12-1, pp. 11-19). The Court of Appeal reasoned, in pertinent part:
Juror No. 4 denied using the translation app on his phone 'when the judge was reading the law. . . .' There is no evidence to indicate he did so. The trial court corroborated this by observing Juror No. 4 did not consult his phone while the jury instructions were read. It is likely the words translated by Juror No. 4 were not terms of art or otherwise carried a technical meaning outside of ordinary usage. Because Juror No. 4 did not translate legal terms provided by the jury instructions, his misconduct bore less significance to the issues in the case. . . .
Looking at the totality of the circumstances, there is not a substantial likelihood that Juror No. 4's misconduct resulted in actual prejudice to [Petitioner]. The court's and counsel's inquiry revealed that Juror No. 4 only used his phone 'sometimes when people were testifying and the judge was talking' as well as 'sometimes in the jury room.' In fact, the trial court believed Juror No. 4 used his phone to translate words only a 'handful' of times. Defense counsel did not challenge this characterization of Juror No. 4's conduct. We believe it is unlikely that trial court and counsel would have all failed to notice if Juror No. 4 had used his phone consistently throughout the trial. . . .
In this case, the trial court discovered the misconduct shortly before the jury began new deliberations with the alternate jurors. The court discussed the misconduct with Juror No. 4 and admonished him not to use his phone for translation from that point forward. Juror No. 4 apologized and promised not to use his phone again. Because deliberations were to begin anew, the slate was effectively wiped clean and any prejudice resulting from Juror No. 4's previous use of his phone in the jury room was overridden. . . .(Doc. 12-1, pp. 14-15).
B. Discussion
The Sixth Amendment's guarantee of trial by jury requires that the jury base its verdict on the evidence presented at trial. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965); Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006), cert, denied, 552 U.S. 833 (2007). Jury exposure to facts not in evidence can violate the Sixth Amendment. See Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1998); Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995) .
Juror No. 4 evidently was exposed to some facts not in evidence, to the extent he read on his phone translations of some words spoken in court. The parties appear to agree that Juror No. 4's exposure to these translations constituted jury misconduct. However, jury misconduct does not warrant federal habeas relief unless the misconduct was prejudicial. See, e.g., Fields v. Brown, 503 F.3d 755, 781-82 (9th Cir. 2007), cert, denied, 552 U.S. 1314 (2008) (no prejudice from a jury's improper use of dictionary definitions during deliberations).
In the Ninth Circuit, the applicable standard for evaluating prejudice from jury misconduct varies depending on the nature of the misconduct. When the misconduct consists of "improper contact between a juror and an outside party," the court examines whether the contact was "possibly prejudicial" and, if so, the court deems the contact "presumptively prejudicial" and places the burden "heavily" upon the state to prove that the contact "was actually harmless." See Godoy v. Spearman, 861 F.3d 956, 962 (9th Cir. 2017) (citing Mattox v. United States, 146 U.S. 140, 150 (1892) and Remmer v. United States, 347 U.S. 227, 229 (1954)). However, where, as here, the misconduct does not consist of improper contact between a juror and an outside party, but rather consists of a juror gaining exposure to extrinsic facts on his or her own, as by consulting a reference source, the Ninth Circuit "applies the Brecht harmless standard." Espinoza v. Montgomery, 816 Fed.Appx. 217, 218 n.2 (9th Cir. 2020), cert, denied, 141 S.Ct. 2579 (2021); see Kipp v. Davis, 971 F.3d 866, 881-82 (9th Cir. 2020), cert. denied, 142 S.Ct. 148 (2021) (applying Brecht standard to evaluate prejudice from jurors bringing a Bible into the jury room and discussing various passages therefrom). The Brecht standard forbids a grant of habeas relief unless the misconduct had a "substantial and injurious effect or influence" on the outcome of the case. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
Claim One fails for want of prejudice under the Brecht standard. There is no indication Juror No. 4's use of his cellphone translation app had a "substantial and injurious effect or influence" on the outcome of the case. Juror No. 4's use of the app presumably ceased before the de novo recommencement of jury deliberations, in accordance with the trial judge's directive and Juror No. 4's promise. See Weeks v. Angelone, 528 U.S. 225, 226 (2000) (jurors are presumed to follow the court's instructions). As to Juror No. 4's prior use of the app, there is no evidence that any words from testimony, exhibits or jury instructions were mistranslated, or were imbued with any materially misleading content.
Ninth Circuit decisions involving jury misconduct in the use of dictionaries are instructive. Where, as here, the record fails to show the use of any misleading definitions of material terms, the Ninth Circuit denies relief. See, e.g., United States v. Birges, 723 F.2d 666, 671 (9th Cir.), cert, denied, 469 U.S. 863 (1984) ("The meager record presented to us on this issue, however, does not demonstrate that any prejudice occurred as a result of the alleged introduction of a dictionary into the jury's deliberations."); Mendoza v. Runnels, 251 Fed.Appx. 406, 408 (9th Cir. 2007), cert, denied, 555 U.S. 842 (2008) (juror's sharing with fellow jurors a dictionary definition of a particular term "did not substantially and injuriously impact the verdict" where the definition was correct); see also Tedeschi v. Dexter, 414 Fed.Appx. 88, 90 (9th Cir. 2011) ("It was misconduct for the juror to introduce the dictionary definition of 'malice,' but it did not have a 'substantial and injurious effect or influence in determining the jury's verdict.'").
District courts within the Ninth Circuit, including those in the Central District of California, similarly have denied habeas relief for the jury misconduct of looking up the definitions of words, absent prejudice under the Brecht standard. See, e.g., Ervin v. Davis, 2016 WL 4705691, at *6-7 (N.D. Cal. Sept. 8, 2016); Bridges v. Horel, 2015 WL 13919161, at *12 (C.D. Cal. Apr. 17, 2015), adopted, 2015 WL 13919182 (C.D. Cal. June 3, 2015); see also Ortiz v. Montgomery, 2019 WL 2219093, at *17 (C.D. Cal. Feb. 21, 2019), adopted, 2019 WL 2211888 (C.D. Cal. May 20, 2019).
To the extent Petitioner also argues that the state courts should have conducted a different investigation of the misconduct, or that the state courts should have applied a different prejudice analysis, such arguments must be rejected under the AEDPA standard of review. No clearly established United States Supreme Court law renders the state courts' investigation, findings or legal analyses objectively unreasonable. In particular, the Ninth Circuit has held that no United States Supreme Court decision (including Mattox and Remmer) has clearly established anything akin to the prejudice standard for which Petitioner evidently argues. See Von Tobel v. Benedetti, 975 F.3d 849, 853-57 (9th Cir. 2020), cert, denied, 141 S.Ct. 2682 (2021) (denying habeas relief where state court applied a standard requiring the petitioner to prove that "there was a reasonable probability or likelihood that the jury misconduct affected the verdict"); cf. Burks v. Borg, 27 F.3d 1424, 1432 (9th Cir. 1994), cert, denied, 513 U.S. 1160 (1995) ("the extent, if at all, to which jurors sought or discussed the extrinsic evidence . . . is a question of historical fact as to which the state court's findings are entitled to a presumption of correctness") (citations, quotations and brackets omitted).
II. Petitioner is Not Entitled to Federal Habeas Relief on Claim Two.
A. Background
At the outset of trial, counsel for Petitioner apparently moved in limine to exclude evidence of Petitioner "being a street gang member" (see R.T. 3, 612). The prosecutor agreed that there would be no reference to gangs, other than to Petitioner's alleged moniker, "Sneeze" (id.).
During direct examination at trial, Detective Scott Crowe testified that Javier Briceno had told the detective that, just prior to being shot, Briceno "observed a person what he called posted up in the courtyard area" (R.T. 1848). Detective Crowe testified that Briceno said he recognized the person as "Sneeze," and the person then approached Briceno and shot him (id.). On cross-examination of Detective Crowe, the following questions and answers occurred:
Q And he told you that the suspect was posted up in the courtyard of his apartment complex, right?
A Yes.
Q Now, what does "posted up" mean?
A It's a term used more into the gang culture where a person may be sitting at a location looking for somebody or watching to make sure somebody doesn't come up on them.
Q Somebody that's hanging out, standing around or sitting around, right?
A Not just sitting around, but posted up to me would be that someone's actually there making sure that somebody's not coming around.
Q Okay. Somebody's there for a period of time, right? Somebody is standing watch, right?
A It could be for a period of time.(R.T. 1863-64).
In Claim Two, Petitioner argues that his counsel's failure to object to, or otherwise to seek to exclude, Detective Crowe's testimony that Briceno had used the term "posted up" deprived Petitioner of the effective assistance of counsel. Petitioner theorizes that the jury could have inferred Petitioner's gang involvement from Detective Crowe's testimony.
The California Court of Appeal denied this claim, stating:
First, [Petitioner] misreads Detective Crowe's testimony. Detective Crowe testified the term was used by gang members. He did not testify [Petitioner] used that term; he testified Javier did. Thus, Detective Crowe's testimony implied Javier was a gang member, not [Petitioner]. Further, according to the term as described in Detective Crowe's testimony, Javier portrayed [Petitioner] merely as "a person" who was sitting and looking or watching for someone. Under these facts, no objection could be made because the testimony did not violate the court's order prohibiting evidence of [Petitioner's] membership in a gang. Accordingly, defense counsel's representation did not fall below an objective standard of reasonableness. This alone is sufficient to overcome an ineffective assistance of counsel argument.
Second, [Petitioner] has failed to establish that there is a reasonable probability that, but for his trial counsel's errors or omissions, he would have received a more
favorable outcome.(Doc. 12-1, p. 20).
B. Discussion
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). The Court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Strickland, 466 U.S. at 697; Thomas v. Borg, 159 F.3d 1147, 1152 (9th Cir. 1998), cert, denied, 526 U.S. 1055 (1999) ("We need not evaluate both prongs of the Strickland test if the defendant fails to establish one.").
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995), cert, denied, 519 U.S. 848 (1996); see Strickland, 466 U.S. at 689 ("a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance"). The Court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The Court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight." Campbell v. Wood, 18 F.3d 662, 673 (9th Cir.), cert. denied, 511 U.S. 1119 (1994).
"The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (citations omitted). The test is "only whether some reasonable lawyer . . . could have acted, in the circumstances, as defense counsel acted. ..." Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998), rev'd on other grounds, 525 U.S. 141 (1998) (citations and internal quotations omitted); see also Babbitt v. Calderon, 151 F.3d 1170, 1173-74 (9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999) (relevant inquiry under Strickland is not what defense counsel could have pursued, but rather whether the choices made by defense counsel were reasonable) (citation and quotations omitted); Morris v. California, 966 F.2d 448, 456-57 (9th Cir. 1991), cert, denied, 506 U.S. 831 (1992) (if the court can conceive of a reasonable tactical reason for counsel's action or inaction, the court need not determine the actual explanation).
A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 562 U.S. 86, 101 (2011). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 105. "When the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is 'doubly deferential,' [citation], because counsel is 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Woods v. Etherton, 578 U.S. 113, 117 (2016) (citations and internal quotations omitted). "In such circumstances, federal courts are to afford 'both the state court and the defense attorney the benefit of the doubt.'" Id. (citation omitted). "[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Sexton v. Beaudreaux, 138 S.Ct. 2555, 2560 (2018) (citation and internal quotations omitted).
As the California Court of Appeal determined in the present case, Petitioner's counsel reasonably could have concluded that any effort to exclude Briceno's statement to Detective Crowe would have failed. Counsel's decision to forgo making a meritless objection or a meritless motion to strike cannot have been ineffective. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert, denied, 519 U.S. 1142 (1997); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989). Briceno's use of the term "posted up" did not implicate Petitioner as a gang member. Nor did the imputed behavior of being "posted up." If it were otherwise, anyone lingering at a location while looking for someone else would be thought a gang member. The actions or inactions of Petitioner's counsel in relation to Detective Crowe's testimony were neither unreasonable nor prejudicial under the Strickland standard. For the same reasons, the Court of Appeal's rejection of Petitioner's ineffective assistance of counsel claim was not objectively unreasonable under the AEDPA standard of review.
III. Petitioner is Not Entitled to Federal Habeas Relief on Claim Three.
A. Background
On Petitioner's first direct appeal, the Court of Appeal remanded "to allow the trial court to exercise its discretion to strike the firearm enhancements under section 12022.5, subdivision (c)" (Doc. 121, p. 23). This remand was made necessary by the 2018 amendment of section 12022.5(c) (see id. at p. 22).
On remand, the trial court did not grant the sentencing relief Petitioner then sought (R.T. 3301-09). In Claim Three, Petitioner argues that the trial court should have reconsidered his entire sentence under an asserted "full sentencing rule."
On Petitioner's second direct appeal, the California Court of Appeal rejected this claim (Doc. 12-4). The Court of Appeal found that the sentencing court's actions comported with the intendment of the Court of Appeal's limited remand, as well as with California state law (id. at pp. 7-9).
B. Discussion
Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Alleged errors of state law, including errors of state sentencing law, are insufficient to warrant federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989), cert, denied, 499 U.S. 963 (1991); see Rodriquez v. Koenig, 2023 WL 2789584, at *9 (E.D. Cal. Apr. 5, 2023), adopted, 2023 WL 6130341 (E.D. Cal. Sept. 19, 2023) (alleged violation of "full sentencing rule" at resentencing raised only a question of state law, not cognizable on federal habeas review). Therefore, Claim Three raises only a non-cognizable issue of state law. See id.
In any event, nothing concerning the California Court of Appeal's decision on Petitioner's second direct appeal was objectively unreasonable under any clearly established United States Supreme Court law. Accordingly, Claim Three also fails under the AEDPA standard of review.
IV. Petitioner is Not Entitled to Federal Habeas Relief on Claim Four.
Claim Four states: "New evidence Cal. Pen. Code 1473(b)(3)(A) in Exhibit 1" (Petition, p. 6). No "Exhibit 1" is attached to the Petition. However, from other documents filed by Petitioner, the Court surmises that Petitioner is arguing he should have received a new trial based on text messages reportedly discovered on Ashley Springsted's cellphone in 2020. These text messages purport to have been pretrial communications to Ashley Springsted from victim Kirby. Petitioner argues that the messages show Kirby was then seeking money and/or sexual favors in return for testifying at trial in a way that would help Petitioner (see Doc. 31-3, 31-5).
In ruling on a petition for habeas corpus, the Superior Court rejected this "new evidence" claim, reasoning, inter alia, that the text messages were unauthenticated and, even if the text messages could have been introduced into evidence at trial, the messages were unlikely to have changed the verdicts (Doc. 31-2, p. 2) . The California Court of Appeal subsequently denied a petition for writ of habeas corpus, stating in a conclusory fashion that Petitioner "has failed to demonstrate a prima facie case for habeas relief" (Doc. 314). The California Supreme Court subsequently denied this claim summarily (see Doc. 22, p. 2) .
A. Discussion
In 2016, California enacted Senate Bill 1134, which amended California Penal Code section 1473 to give inmates additional grounds to seek state court habeas relief based on newly discovered evidence. See Former Cal. Penal Code § 1473(b)(3) (as amended by Cal. Stats. 2016, ch. 785, § 1 (eff. Jan. 1, 2017)) . This amendment became effective on January 1, 2017. The amended statute provided that a prisoner may seek a writ of habeas corpus on the ground that "[n]ew evidence exists that is credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial." Former Cal. Penal Code § 1473(b)(3)(A). "New evidence" was defined as "evidence that has been discovered after trial, that could not have been discovered prior to trial by the exercise of due diligence, and is admissible and not merely cumulative, corroborative, collateral, or impeaching." Former Cal. Penal Code § 1473(b)(3)(B).
The California legislature rewrote section 1473 again, effective January 1, 2024. The statute as recently rewritten does not substantively differ in any material respect from the statute on which Petitioner predicates Claim Four.
Petitioner's claim that he is entitled to relief under former California Penal Code section 1473(b)(3)(A) (as amended by Senate Bill 1134) presents only a state law issue not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. at 67-68; Miller v. Vasquez, 868 F.2d at 1118-19; see also Jeffries v. Clark, 2023 WL 3095570, at *37 (E.D. Cal. Apr. 26, 2023), adopted, 2023 WL 4670880 (E.D. Cal. July 20, 2023) (claim based on California Penal Code section 1473(b)(3) not cognizable on federal habeas corpus); Walker v. Montgomery, 2023 WL 2248737, at *6 (C.D. Cal. Jan. 18, 2023), adopted, 2023 WL 2247051 (C.D. Cal. Feb. 26, 2023) (same); Rushing v. Neuschmid, 2020 WL 2404666, at *27-28 (N.D. Cal. May 12, 2020), aff'd, 2023 WL 2400834 (9th Cir. Mar. 8, 2023) (state court's alleged misapplication of former California Penal Code section 1473(b)(3) not redressable by federal habeas corpus).
To the extent Petitioner is arguing in Claim Four that the new evidence proves Petitioner's "actual innocence," this argument also fails. "The Supreme Court has not yet resolved whether a prisoner is entitled to habeas relief for a freestanding actual innocence claim." Jeffries v. Clark, 2023 WL 3095570, at *37; see McQuiqqin v. Perkins, 569 U.S. 383, 392 (2013); Herrera v. Collins, 506 U.S. 390, 400 (1993); Gimenez v. Ochoa, 821 F.3d 1136, 1143-45 (9th Cir.), cert. denied, 580 U.S. 1004 (2016). Assuming, arguendo, the viability of a federal habeas claim of actual innocence, the text messages proffered by Petitioner fall far short of the required showing. See Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997), cert, denied, 523 U.S. 1133 (1998) (at a minimum, the petitioner must "go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent"); see also Schlup v. Delo, 513 U.S. 298, 327 (1995) (to pass through a gateway to an otherwise procedurally barred claim, a petitioner must show "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."). At most, the text messages might further impugn the credibility of Kirby's trial testimony. The text messages do not affirmatively prove that Petitioner is probably innocent of assaulting Kirby with a semi-automatic firearm or of personally inflicting great bodily injury on Kirby therewith.
As the trial court aptly commented at side bar after Kirby's trial testimony, "Kirby was all over the map. Kirby's getting impeached up and down the line here because he was so inconsistent with everything he said" (R.T. 1040).
V. Petitioner is Not Entitled to Federal Habeas Relief on Claim Five.
A. Background
Claim Five presents a different theory of ineffective assistance of counsel than presented in Claim Two. In Claim Five, Petitioner faults counsel for failing to discover and introduce at trial the "new evidence" referenced in Claim Four and also faults counsel for failing to present this evidence to the sentencing court on remand. On state habeas corpus, the Superior Court denied Claim Five under the Strickland standard. (Doc. 31-2).
See discussion of the Strickland standard in Section II B, supra.
The performance by Petitioner's counsel did not fall below "an objective standard of reasonableness." Counsel reasonably could have decided not to call Ashley Springsted as a trial witness (even if she were available). Her testimony could have strongly supported the prosecution's theory regarding Petitioner's motives for the shootings. Indeed, during trial, Petitioner's counsel strategically sought to avoid having the jury learn of Ashley Springsted's connection to Kirby, which would have provided a "link" between the two shootings (R.T. 1023-31). The text messages evidently were unknown to Petitioner's counsel during trial, and only speculation supports any suggestion that, with reasonable investigation, counsel would have learned of these messages soon enough to consider using them at trial. In fact, Petitioner states in his Reply that this evidence "could not be discovered prior to trial through the exercise of due diligence" (Reply, p. 42). Moreover, although the text messages arguably could have further impeached Kirby's trial testimony, the further impeachment would have been of no ultimate importance to Petitioner's defense. Kirby testified at trial in a manner calculated to retreat from Kirby's incriminating pretrial identification and Kirby's incriminating pretrial statements. Any suggestion that Kirby had offered before trial to testify at trial in a manner so as to help Petitioner would have added little or nothing to Petitioner's trial defense.
Counsel's decision not to seek to present the text messages during the post-remand sentencing proceeding was also reasonable. The messages were not significantly material to any issue properly before the sentencing court during the limited remand. See Section III, supra. For the same reason, there exists no reasonable probability that the sentencing court's consideration of the text messages would have precipitated a different result on remand.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
Petitioner's request for an evidentiary hearing is denied. Federal habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present for the first time in federal court. See Cullen v. Pinholster, 563 U.S. 170, 185 (9th Cir.), cert, denied, 563 U.S. 1029 (2011) ("Pinholster"); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert, denied, 573 U.S. 919 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.