Opinion
Case No. SACV 03-00104-AHM (MLG).
April 13, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Procedural History
On May 12, 1999, Petitioner Juan Heredia Monarrez was convicted, following a jury trial in the Orange County Superior Court, of attempted premeditated murder, street terrorism, and two firearms violations. The jury found also found true a variety of enhancement allegations including: a gang enhancement; prior serious felony and prior prison term enhancements; and a personal infliction of great bodily injury enhancement. He was sentenced to life imprisonment, to be followed by a term of 13 years. On November 6, 2001, the California Court of Appeal affirmed the convictions and sentences. On January 23, 2002, the California Supreme Court, denied his Petition for Review. (Lodgment 3).
On February 2, 2003, Monarrez filed this petition for writ of habeas corpus. The petition raised five grounds for relief. The first four grounds for relief challenged certain of the trial court's evidentiary rulings: (1) the trial court wrongly admitted evidence of other criminal acts; (2) the trial court wrongly excluded the victim's medical records; (3) the trial court wrongly admitted expert testimony on gangs and efforts to intimidate witnesses; and (4) the trial court wrongly admitted evidence of Monarrez's tattoo of a man holding a gun. The final ground for relief asserted that there was insufficient evidence from which a reasonable juror could find premeditation or that the victim suffered great bodily injury. All of these claims had been presented to the California Supreme Court. However, the first four grounds for relief had only been presented as state evidentiary errors.
On March 12, 2003, Respondent filed a motion to dismiss the petition, alleging that none of these claims were exhausted as they had not been raised as federal Constitutional claims in the state courts. On May 6, 2003, this Court issued an order finding that grounds one through four were unexhausted because the issues had not been federalized in the application for review presented to the California Supreme Court, but that ground five, the insufficiency of the evidence claim, was fully exhausted. With the Court's permission, Petitioner then amended the petition to delete grounds one through four. The Court also granted Petitioner's request to stay proceedings on the single exhausted claim while he exhausted the withdrawn claims in state court. Petitioner filed his first amended petition containing only the insufficiency-of-the-evidence claim on June 4, 2003.
Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court. That petition contained the same claims that had previously been presented, but included citations to federal constitutional provisions and case law in an attempt to federalize the claims for subsequent habeas review in this court. The California Supreme Court denied the petition for writ of habeas corpus on March 30, 2004, citing In re Dixon 41 Cal.2d 756 (1953) (state collateral review precluded when matters in habeas petition could have been, but were not, raised on direct appeal) and In re Waltreus, 62 Cal.2d 218 (1965) (claims raised on direct appeal cannot be reviewed on habeas).
Petitioner then requested leave to amend his petition to include the newly exhausted grounds one through four. On May 13, 2004, the Court granted Petitioner's motion to incorporate these four additional allegations of error into the June 4, 2003 first amended petition. On August 12, 2004, Respondent filed another motion to dismiss the petition, claiming: 1) that the petition was now untimely under the one-year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C § 2244 (d) (1) (A); 2) that the newly raised claims remained unexhausted; and 3) that the newly raised claims were procedurally barred based on the decision of the California Supreme Court denying the state habeas corpus petition on the basis of Dixon and Waltreus, which purportedly were independent state procedural grounds. On October 19, 2004, the Court denied the motion to dismiss in a minute order, finding the limitations argument was frivolous and the procedural default argument did meet the requirements of Bennett v. Mueller, 322 F.3d 573, 581-85 (9th Cir. 2001).
While the Court granted the motion to amend and "incorporated" these newly exhausted claims into the first amended petition, it might have been wiser to order that Petitioner file a second amended petition containing all five claims. Regardless, the petition now before the Court consists of the five claims discussed above.
On November 3, 2004, Respondent filed a Motion to Require a Report and Recommendation on the basis that this court had improperly decided the dispositive motion to dismiss. This motion was granted by District Judge A. Howard Matz on November 8, 2004. On January 28, 2005, this writer reevaluated Respondent's motion to dismiss the first amended petition. Because of the complexity of the issues presented by both the limitations and procedural default arguments, the Court appointed counsel to represent Monarrez and afforded Petitioner the opportunity to file a supplemental pleading addressing the limitations and the procedural default issues.
On September 22, 2005, this Court issued a Report and Recommendation finding that the petition was timely, that Petitioner has adequately exhausted his claims, and that the Respondent had not carried his burden of showing that the claimed procedural bar was adequate to defeat federal review. On November 2, 2005, Judge Matz entered an order adopting the Report and Recommendation and denied the motion to dismiss. Respondent has now filed an answer on the merits, and Petitioner has submitted a traverse. The matter is ready for decision.
II. Statement of Facts
Jesus Beltran, the victim of the shooting for which Petitioner was convicted, was a young member of the Fullerton Tokers Town ("FTT"), a criminal street gang. Petitioner was also a FTT member.
A few weeks before the shooting, Beltran was at a party with other FTT gang members, including his friend Octavio Nolasco. The party was on Valencia Street, at the home of Nolasco's girlfriend. (RT at 200, 247). Petitioner and a few other FTT gang members arrived by car and everyone shook hands except for Monarrez. (CT at 557-58). Monarrez was 23 years old at the time, and had recently been released from prison. (RT at 662).
Following the shooting, police officers conducted taped interviews with Beltran and Nolasco. Nolasco described the events which took place at the party. Beltran identified Petitioner as the assailant. At trial, both recanted their prior statements and claimed that they could not remember the events in question. The prior statements were introduced into evidence. These facts are derived from those statements.
Beltran made a comment about Monarrez to a friend, which the latter overheard. Monarrez told Beltran, "So, you think you're bad? . . . You think you're crazy?" (RT at 272). Monarrez hit Beltran and in the fight that ensued, Beltran felt he got the better of Monarrez. (CT at 561). Beltran assumed Monarrez wanted to fight him because Beltran was "disrespecting him, that he's not getting the respect, what a veterano from prison should get." (CT at 568). Two fellow FTT gang members, Paul Acevedo and Modesto Marines jumped in to stop the fight. (RT at 292, 318-19). Monarrez then left the party. (RT at 342, CT at 564).
About a month later, on September 1, 1995, Beltran was walking toward a payphone at the E1 Mercadito Market, at Lemon and Valencia in Fullerton. (RT at 24). He encountered Jaime Alvarez, who was also a member of the FTT gang. (RT at 127, 133). During his interview with police, Beltran stated that Monarrez and some others approached and Monarrez asked Alvarez if he wanted to "go one-on-one" and fight. (CT at 588). Alvarez was punched and got a bloody nose. (RT at 349, 351-52). Monarrez then took out what appeared to be a chrome .22 caliber automatic. (CT at 589-90). Monarrez held the gun in his left hand and struck Beltran with his right. Beltran fell to the ground. He tried to stand up and was kicked in the face. Beltran tried to stand up again and was shot in the back. (RT at 369, 389, 394, 397). Alvarez saw that Beltran was bleeding and called 911. Police and paramedics arrived shortly thereafter. (RT at 155, 157-58).
On September 8, 1995, Fullerton police officers executed a search warrant at Monarrez's home. (RT at 579-80). Inside Monarrez's bedroom, the police recovered a notebook with FTT gang graffiti and photo albums that contained similar FTT gang graffiti and family pictures.
Fullerton Detective Anthony Sosnowski interviewed Beltran. Beltran identified Monarrez as an FTT member and identified him in a photo line-up. He also identified Monarrez as the shooter, but stated that he did not want to participate in the prosecution of Monarrez. (RT at 1122-23, 1125-26). Beltran stated that he feared for his family's safety. (RT at 1128).
Nolasco was also interviewed by police. He stated that he was present at the Valencia street party and thought Monarrez punched Beltran in the face because he had misheard something that Beltran said. Nolasco also tried to break up the fight but then someone tried to hit him in the face. Beltran and Nolasco ran away. (RT at 600, 662, 664-66). According to Nolasco, Beltran and Nolasco also got in a fight with Acevedo and Marines at a party the next night, because they were angry with Beltran for being disrespectful to Monarrez. (RT at 670-75). Nolasco also stated that when he later visited Beltran in the hospital, Beltran told him that he had been shot by Monarrez. (RT at 675).
Beltran had been shot in the back near the spine. The bullet remained lodged in his back at the time of the trial almost four years later. (RT at 197-98, 403). According to the prosecution, Monarrez shot Beltran because Beltran had failed to accord him the proper respect. The defense, however, denied Monarrez was the shooter and presented witnesses whose testimony suggested that a gun of a different caliber than that claimed to be in Petitioner's possession had been used to shoot Beltran. (RT at 1221, 1234-35, 1279-82, 1272-74).
Sosnowski testified as a gang expert at trial. (RT at 861-62). Based on his experience and knowledge, he testified that FTT was a criminal street gang within the meaning of California Penal Code § 186.22. (RT at 882-83). Sosnowaski testified that Monarrez was an FTT member, based on the tattoos located on Monarrez's body and the photo albums recovered at Monarrez's home, which included gang graffiti and photos of people flashing gang signs. (RT at 908-12, 914). In addition, Sosnowski said that Monarrez continued his affiliation with FTT while in prison and that when he left prison, Monarrez became an active and respected "veterano" in the FTT gang. (RT at 938, 943). He further stated that Monarrez shot Beltran because he believed that Beltran did not show him sufficient respect and therefore Monarrez committed the crime for the benefit of the FTT gang. (RT at 952-53).
In addition, Sosnowski explained the difference between FTT, a criminal street gang, and EME, or the Mexican Mafia, a prison gang. He described how EME exercises control over street gangs in the community, including assaulting or killing those who "rat" on fellow gang members. (RT 898-99, 901-02). Sosnowski noted the presence of EME graffiti etched just outside the doors to the courtroom when Beltran testified, and stated that it could cause a witness to be fearful and intimidated. (RT at 903). Sosnowski also noted that an FTT gang member sat in the courtroom while Beltran testified. (RT at 923-24, 930).
III. Respondent's Procedural Defenses
Respondent reasserts the same three procedural defenses that he presented in his motion to dismiss the petition. These are that the claims are unexhausted, that the petition was untimely, and that the claims are subject to a procedural bar. These arguments were rejected by District Judge A. Howard Matz on November 2, 2005, and will not be reconsidered.
IV. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 (d) (1), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was decided on the merits in state court only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or if the ruling was "based on an unreasonable determination of the facts in light of the evidence presented."
A state court decision is "contrary to" clearly established federal law if the state court failed to apply the correct controlling authority from the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The Supreme Court has explained that a decision is contrary to clearly established federal law if the state court "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams, 529 U.S. at 405-06). A state court need not cite or even be aware of Supreme Court precedents, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (citing Packer, 537 U.S. at 7).
A state court decision involves an "unreasonable application of" clearly established federal law if the state court identifies the correct governing legal principle from the decisions of the Supreme Court, but unreasonably applies that principle to the facts of the case. Williams, 529 U.S. at 407-08, 413. Under this standard, a habeas court may not issue the writ simply because it concludes "in its independent judgment" that the state court decision is incorrect or erroneous. Williams, 529 U.S. at 410, 412; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). The reviewing court must find that the state court's application of clearly established law was objectively unreasonable. Williams, 529 U.S. at 409.
The California Supreme Court denied review in this case. When the California Supreme Court has summarily denied a claim, without giving a rationale, this is considered a denial "on the merits," and is presumed to rest on grounds articulated by a lower court in its written opinion. Ylst v. Nunnemaker, 501 U.S. 797, 803-806 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000). Thus, a reviewing court may "look through" the unexplained summary denial to a lower state court's reasoned decision.
Here, the last reasoned decision by a state court was the opinion of the California Court of Appeal of November 6, 2001. See Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004). The court of appeal only addressed the issues related to the testimony of the prosecution's gang expert about the Mexican Mafia and the Mexican Mafia graffiti at the court house. Therefore, with the exception of this issue, there is not a reasoned decision addressing Petitioner's claims. When there is no reasoned state court decision addressing certain claims in a petition, this Court must conduct "an independent review of the record" to determine whether the state's decision was an objectively unreasonable application of Supreme Court precedent. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
IV. Discussion and Analysis A. The Evidence was Sufficient To the Jury's Finding of Premediation and Deliberation As Well As Great Bodily Injury
Petitioner asserts that there was insufficient evidence to support a finding of (1) premeditation and deliberation or (2) great bodily injury. The Court will address each of these contentions in turn.
The legal standard for evaluating sufficiency of the evidence claims is clearly established. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). "[T]he applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324; see also Turner v. Calderon, 281 F.3d 851, 881-82 (9th Cir. 2002). The reviewing court's task is, therefore, not to determine whether the evidence adduced at trial established guilt beyond a reasonable doubt but rather, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Turner, 281 F.3d at 881-82. This standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n. 16. Moreover, on habeas review the court must apply the Jackson standard "with an additional layer of deference." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). The court must ask "whether the decision of the California Court of Appeal reflected an `unreasonable application of' Jackson . . . to the facts of this case." Id. at 1275.
1. Premeditation and Deliberation
Petitioner claims that there was no evidence of any "planning" activity as required by California homicide law. Indeed, he claims that there was virtually no evidence relating to Petitioner's activities prior to his meeting with Beltran, and although Beltran said he saw Petitioner at a party earlier that evening, that was well before the shooting. Petitioner claims that there was no evidence suggesting that he had followed Beltran or otherwise sought him out. In addition, Petitioner claims that the evidence of motive was weak and that at most, the evidence shows that Petitioner was trying to scare Beltran and shot at him unintentionally. Petitioner contends that the nature of the forensic evidence disproves premeditation because only a bullet fragment was found in Beltran, not a whole bullet, and according to the forensic pathologist, the most likely explanation is that the bullet was not shot directly into Beltran. Indeed, the pathologist stated that the evidence was inconsistent with a direct shot. (RT at 1278-79, 1290) (Petitioner's Traverse as 12). Thus, Petitioner claims that the medical and scientific evidence supports the contention that Petitioner was only trying to scare Beltran, and that there was no evidence to support a finding of premeditation and deliberation. (Petitioner's traverse at 12).
Under California law, premeditation and deliberation may be found where the act of killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. People v. Manriquez, 37 Cal.4th 547, 36 Cal.Rptr.3d 340 (Cal. 2005). However, "[t]he process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." Id. at 366 (internal citations omitted). See also People v. Anderson, 70 Cal.2d 15, 73 Cal.Rptr. 550 (Cal. 1968) (identifying three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing).
Petitioner did not raise this issue in the California Court of Appeal, and thus the Court addresses the objective reasonableness of the Supreme Court's silent rejection of the claim independently. This Court finds that a rational fact finder could have found the essential elements of premeditation and deliberation beyond a reasonable doubt; i.e., that Petitioner shot Beltran as a result of preexisting reflection and calculated judgment. The evidence shows an ongoing dispute between Beltran and Petitioner from which the jury could have reasonably concluded that Petitioner decided, after several altercations, to shoot Beltran for displaying a "lack of respect". Petitioner's reliance on the absence of evidence of planning activity is without merit. California law does not require any specific duration of time for planning or reflection. A jury must evaluate the facts and decide whether the decision to kill was a calculated judgment. The jury so found in this case, and this finding had ample support in the record. Petitioner's claim does not warrant federal habeas relief.
2. Great Bodily Injury
Petitioner also claims that there was insufficient evidence that he his conduct resulted in great bodily injury, despite Beltran having been shot in the back. Petitioner argues that the prosecution presented no medical evidence about the extent of Beltran's injuries. The only evidence came from Beltran himself who explained that the bullet remained lodged in his back and sometimes caused him pain. (RT at 403). During the defense case, Dr. Fukumoto confirmed that a bullet fragment was lodged in Beltran's back, but did not elaborate on the extent of any injury.
Under California law, a finding of great bodily injury must be supported by evidence that the person suffered "significant or substantial physical injury." Cal. Penal Code § 12022.7(e) (West 1995). Petitioner asserts that the "paucity of evidence" failed to establish a significant or substantial physical injury beyond a reasonable doubt, and therefore the finding violates due process under Jackson, 443 U.S. at 324.
As noted, Beltran was shot in the back, near the spine. The bullet remained in his back almost four years later. Under these facts, the jury reasonably found, using their basic common sense, that Beltran suffered great bodily injury. Thus, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of great bodily injury beyond a reasonable doubt. Jackson, 443 U.S. at 318-19. Habeas relief is not warranted.
B. Petitioner's Due Process Rights Were Not Violated by the Admission of Evidence of Uncharged Conduct and Gang-Related Activities
Petitioner claims that his due process rights were violated by the admission of evidence that the day before this shooting, in an unrelated incident, Petitioner had possessed a chrome plated handgun; that Petitioner had a tattoo of a man with a large gun on his body; and that there was Mexican Mafia graffiti outside the courtroom. (Petitioner's Traverse at 13). The Court will address each of these evidentiary issues in turn below.
On habeas review, a federal court will not consider whether a state court misapplied state evidence law unless the application violates a constitutional right. Estelle v. McGuire, 502 U.S. 62 (1991); Pulley v. Harris, 465 U.S. 37, 41 (1984). Here, Petitioner has alleged a violation of due process. (Pet. at 5.) Admission of evidence violates due process if: (1) "there are no permissible inferences the jury may draw from the evidence," and (2) the evidence is "of such quality as necessarily prevents a fair trial." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). 1. The Handgun Identification Evidence
Petitioner complains that the trial judge inappropriately allowed Lori Oveson, Petitioner's ex-girlfriend, to testify that on the day before the shooting of Beltran, she saw Petitioner with a chrome handgun like that of a police officer's gun, a .357 Magnum with a four-inch barrel. (RT at 592-93, 1274). The trial court admitted this testimony over objection, finding that it was relevant as Beltran had described seeing the shooter with a chrome handgun, and thus the evidence bore on Petitioner's identity as the shooter. (RT at 72). Petitioner argues, however, that this testimony had no evidentiary value because the gun Oveson saw could not have been the gun that inflicted Beltran's wounds. The bullet fragment in Beltran was inconsistent with that from a .357 Magnum. (RT at 1279).
Petitioner's argument is without merit. The evidence was relevant, probative and admissible under California Law. Cal. Evid. Code §§ 210, 351. Beltran identified Petitioner as having a chrome handgun, and Oveson stated that Petitioner had a chrome handgun the day before the shooting. The jury was informed of the discrepancies between the description of the gun and the bullet fragment, and came to its own conclusion regarding what weight to give Oveson's description of the gun. Admission of this evidence did not violate due process because there are permissible inferences that the jury may draw from the evidence. Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).
2. The Mexican Mafia Graffiti
Petitioner further alleges that the admission of the testimony of Detective Sosnowski, explaining the activities of the Mexican Mafia prison gang, and the fact that Mexican Mafia graffiti was etched into the wood outside the courtroom, violated his Constitutional rights. Petitioner claims that there was no evidence connecting him to the Mexican Mafia or to the Mexican Mafia graffiti. Petitioner notes that Detective Sosnowski did not know when or how the graffiti was placed in the courthouse, and Beltran, the speculative target of the implied threat, did not see it. Some other person told him about it. (RT at 416-17, 903). There was no evidence that Alvarez or Nolasco knew of its existence.
The California Court of Appeal addressed this issue in its written opinion affirming the convictions. The state court found that "Sosnowski's expertise assisted the jury in understanding a possible reason why both Beltran and Alvarez would recant their earlier statements to the police, and was highly probative on issues of witness credibility." People v. Juan Heredia Monarrez, Case No G025919 (Cal.Ct.App., Div. Three, November 6, 2001) (unpublished).
The court of appeal's decision was not contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d) (1). The evidence was relevant as to the witnesses state of mind, and was not unconstitutionally prejudicial. No habeas relief is warranted on this claim.
3. The Gun Tattoo
Petitioner also challenges the testimony of Detective Sosnowski about a tattoo on Petitioner's back showing an individual holding a large gun. Sosnowski stated that this showed Petitioner had a "willingness to participate in a violent gang lifestyle" and an affinity for violence. (RT at 906, 910-11). Petitioner asserts that reference to the tattoo was a "ruse to tar Petitioner as a violent gang member who willingly and indiscriminately used firearms to achieve his criminal ends." (Petitioner's Traverse at 15). Petitioner complains that this was part of a series of irrelevant and prejudicial gang references that in total denied Petitioner his right to due process. (Petitioner's Traverse at 15).
This claim is also without merit. The gang evidence was relevant, since the prosecution's theory was aimed at demonstrating that a "veterano" gang member shot a younger member who did not show him the proper respect. The prosecution argued that the victim and others initially cooperated with the police and then later recanted. based on fear of retaliation by the gang. The tattoo was part of the evidence establishing Petitioner's involvement with the gang.
The admission of this evidence did not violate due process because there were permissible inferences the jury could have drawn from the evidence. Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). In addition, in light of all the other evidence demonstrating Petitioner's involvement in the gang, the admission of the photograph was not "so fundamentally unfair as to violate due process." Spivey v. Rocha, 194 F.3d 971, 977 (9th Cir. 1999).
C. The Exclusion of Beltran's Medical Records Did Not Violate Petitioner's Due Process Rights
Finally, Petitioner asserts that the trial court erred when it excluded the victim's medical records, because those records allegedly contradicted the great bodily injury allegation and the assertion of premeditation. Petitioner contends that the exclusion of this evidence violated his due process rights, his right to present a defense, and his right to call witnesses.
Petitioner states that this evidence was important for several reasons. Given the failure of Beltran and Alvarez to affirm under oath any of their prior statements, there was, according to Petitioner, a very real dispute as to how Beltran was shot. It was therefore critical for Petitioner to be able to present evidence that contradicted Beltran's earlier account. He claims that the medical records did so by calling into question the type of handgun that had been used. According to Petitioner, the radiologist's report showed that something smaller could have been used to shoot Beltran, like a pellet gun. Petitioner wanted to introduce the radiologist's report indicating that the fragment in Beltran's back was about 3 by 5 millimeters in size. However, the trial court found the medical records to be unreliable hearsay, contradicted by all of the medical witnesses who testified, and not falling within the business records exception. (RT at 1263-65, 1254).
As previously noted, violations of state evidentiary law are not cognizable in a federal habeas corpus petition. Estelle v. McGuire, 502 U.S. at 67-68. Thus, a habeas corpus petitioner may not challenge an evidentiary ruling on the grounds that it violated the state's evidence code. Jammal v. Van de Kamp, 926 F.2d at 919-20. Rather, an evidentiary ruling may be challenged only if it rendered the trial so fundamentally unfair so as to violate due process. Leavitt v. Arave, 383 F.3d 805, 829 (9th Cir. 2004).
When deciding whether an evidentiary ruling which excludes defense evidence violates due process, the habeas court must "balance the importance of the evidence against the state interest in exclusion." Perry v. Rushen, 713 F.2d 1447, 1452 (9th Cir. 1983), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). To determine if the exclusion of evidence reaches constitutional proportions, the court considers five factors: (1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. See Tinsley v. Borq, 895 F.2d 520, 530 (9th Cir. 1990). After reviewing these factors, the habeas court must balance the importance of the evidence against the state's interest in excluding it. Id. Moreover, trial type errors do not give rise to habeas relief unless the error alleged "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
This issue was not presented to the California Court of Appeal and thus there is no written decision by the state court addressing the issue. Weighing the factors identified above, the Court finds that there was no due process violation. The probative value of the excluded evidence on the central issue was not significant. The issue of the nature of the bullet fragment and how it got into Beltran was thoroughly explored at trial, and the jury had plenty of evidence with which to assess the defense's contentions. The defense's own expert conceded that the fragment inside of Beltran's body was consistent with either a .22 or .25 caliber weapon, the same type described by Beltran. (RT at 1283). The prosecution presented evidence that the Petitioner possessed a chrome handgun the day before the shooting, and Beltran identified the weapon he was shot with as a chrome handgun. (CT at 589-90 (Beltran); RT at 1272-74 (Oveson)).
Additionally, the trial court found that the radiologist's report was both inadmissable as hearsay and unreliable, stating that it would be unfair to introduce medical statements and opinions (about which there was much disagreement by the physicians who did testify) without the prosecution having the opportunity to examine the person who prepared the radiology report. (RT at 1227). The trial court did agree, however, that the defense could present testimony from a percipient witness, which would be the more reliable evidence on this issue. (RT at 1254-65, 1269-70). Petitioner chose not to do so, perhaps because no other experts who examined the x-rays agreed with the original radiologist's determination of fragment size.
In any event, the Court defers to the state court's analysis of California evidentiary rules and the reliability of the radiologist's report. The Court additionally finds, for the reasons stated above, that exclusion of the records did not prevent the Petitioner from presenting his defense. Other evidence on this issue sufficed because the medical reports were not the sole evidence on the issue, nor were the reports a vital part of the defense. The jury had sufficient evidence to evaluate the issues related to the gun and bullet fragment. Consequently, the Court finds that exclusion of Beltran's medical records was not constitutional error. III. Conclusion
For the reasons stated above, it is recommended that the Court accept and adopt the findings and recommendations herein and that the petition for habeas corpus should be DENIED.