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Vizcarra v. Campbell

United States District Court, S.D. California
Apr 10, 2006
Case No. 05cv1537-J (BLM) (S.D. Cal. Apr. 10, 2006)

Opinion

Case No. 05cv1537-J (BLM).

April 10, 2006


REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS


This Report and Recommendation is submitted to United States District Judge Napoleon A. Jones, Jr. pursuant to 28 U.S.C. § 636(b) and Local Civil Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California.

On August 1, 2005, Petitioner Gerardo J. Vizcarra, a state prisoner appearing pro se, commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. Doc. No. 1. Petitioner challenges his second degree murder and arson convictions, as well as his sixty years-to-life prison sentence. Id.

In his Petition, Petitioner claims he was convicted of first degree murder, arson, and great bodily injury, for which he alleges he was sentenced to consecutive twenty-five years-to-life prison terms. Petition at 1-2. However, this Court's review of the record reveals that Petitioner was convicted of second degree murder and arson of an inhabited structure. See Opinion of the California Court of Appeal, Lodgment 9 at 1 ("Lodgment 9"). Petitioner was sentenced to twenty-five years-to-life for murder, a consecutive twenty-five years-to-life for arson, and two consecutive five-year terms for prior serious felony convictions, for a total term of sixty years-to-life. Id. at 1-2; see also Clerk's Transcript, Lodgment 1, Volume 1 at 196-97.

This Court has considered the Petition, Respondent's Answer, Petitioner's Travers in Opposition to the Return to the Order to Show Cause (construed as a Traverse), and all supporting documents submitted by the parties. Based on the documents and evidence presented in this case, and for the reasons set forth below, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED.

FACTUAL BACKGROUND

The following facts are taken from the California Court of Appeal's opinion in People v. Vizcarra, No. D041824, slip op. (Cal.Ct.App. Oct. 26, 2004). See Lodgment 9. This Court presumes the state court's factual determinations to be correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003);see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness).

On the afternoon of May 6, 2001, Vizcarra, the victim Richard Holcomb, and John Hedderson were in the living room of Hedderson's house. (Vizcarra rented space in Hedderson's garage.) Holcomb and Hedderson had been drinking and using methamphetamine.
At some point, Holcomb picked up Hedderson's five-year-old son and bumped him into a wall while walking or swinging him around. As soon as the boy hit the wall, Holcomb put him down. Vizcarra became angry and told Holcomb, "You shouldn't have done that to a small child." Vizcarra told Holcomb he was going to call some friends to "take care of" Holcomb. Vizcarra described Holcomb as drunk, argumentative and getting "in his face."
Vizcarra left the living room and made a phone call. [footnote 2: Vizcarra in the police interview stated he telephoned "Chico," and told him "this fool is just sittin' here just arguing with me and I need to get out of here, just need a ride to get out of here." Shortly thereafter three men arrived in a blue Mustang. One man said, "Oh, that's my brother-in-law" as he walked through the front door. Vizcarra then grabbed Holcomb around the neck and dragged him into Hedderson's bedroom. [footnote 3: Prior to trial, Hedderson had not mentioned to the police that Vizcarra had taken Holcomb into bedroom.] The three men also went into the bedroom.
Hedderson picked up his youngest son, carried him outside and then returned to the house. In the bedroom, he saw Holcomb, who appeared to have been beaten, partially rolled up inside the bedroom's rug. Holcomb was moaning. Vizcarra and three men had kicked, "stomped," and stabbed Holcomb. Vizcarra told Hedderson, "Don't trip," meaning Hedderson should not panic. One of the men said, "Don't let the kids walk past this part of the house." Hedderson responded, "Don't worry. We're out of here." He left with his sons.
After Hedderson left, Vizcarra helped wrap Holcomb's body in a sheet from the bed, plastic garbage bags and the rug. He then helped move the body into the garage.
About 4:00 p.m., Hedderson's sister arrived at the house because she was planning to take Hedderson's sons to a birthday party. The blue Mustang was still in the driveway. She knocked on the door and the window but received no response. Three men came from the back of the house, walked past her, got in the Mustang and drove away. She did not know any of the men nor was she able to later identify them. She walked to the back door and called out her brother's name. Vizcarra "came from behind a wall and jumped out," and told her Hedderson was not a home but would be back shortly. Vizcarra also told her he was ready to take a shower. Vizcarra was wearing a leather jacket but no shirt.
After she left, Vizcarra asked to borrow a pair of pants from a homeless man living on a vacant lot next to Hedderson's house. The homeless man described Vizcarra as being "hyped up" about something an having a knife in his hand. The homeless man gave Vizcarra a pair of pants. Vizcarra gave the homeless man his own pair of pants, telling him, "bury them and bury them deep." The homeless man did not remember seeing any blood on the pants but did notice they were damp.
Vizcarra left the house to meet with some other people. They decided to burn Hedderson's house to cover up the murder. Vizcarra, "Toker" (Saul Barrios), Twila Carroll and perhaps another person went to Hedderson's house. Vizcarra poured gasoline on the living room floor. About 5:00 a.m. on May 7, the house exploded. Vizcarra was burned in the fire.
When the police responded to the fire, Hedderson's house was completely engulfed in flames. They found Holcomb's body in the garage. There were two plastic garbage bags over his head, and the body was wrapped in a sheet and rug from the bedroom.
The autopsy revealed Holcomb had suffered a number of cutting wounds, including a fatal wound on his neck. He also had a number of injuries that were consistent with being kicked or stomped, including a fatal head injury. Seven of Holcomb's ribs had been fractured in a "roughly linear pattern, indicating some broad-surface type impact" such as a two-by-four or flat portion of a chair or table. The injuries were inflicted while Holcomb was still alive. At the time of his death, Holcomb had a blood alcohol level of .22 and had methamphetamine in his system.
The forensic pathologist could not determine the order in which the injuries were inflicted. The neck wound probably would have resulted in Holcomb losing consciousness within 30 to 40 seconds due to a lack of blood to the brain but Holcomb might have continued to gasp for air and moan. Within five or ten minutes, depending upon the amount of Holcomb's physical exertion, he would have lost so much blood his heart would have started to beat irregularly.
An arson expert testified the fire was deliberately set and gasoline was used as an accelerant. In the living room, there were two gasoline containers, a lighter and a gasoline soaked rag. One of the containers had a paint roller stuffed inside the opening, probably to be used as a wick so that when the roller was lit, the fire would go into the container and ignite the vapors. There was a lighter near this gasoline container. The explosion probably occurred because gasoline vapors had accumulated in the living room (due to gasoline poured along a wall and a couch) at the time the fire was ignited.
The police interviewed Vizcarra on May 17 at the University of California, San Diego Burn Center (burn center). At the outset of the interview, Vizcarra denied knowing anything about the murder. He also denied knowing how the fire started, claiming he had been moving boxes for some people or had been sleeping just before the explosion. Later in the interview, Vizcarra admitted he knew "[m]ore or less" what happened to Holcomb, but claimed he had only helped move the body. Eventually, Vizcarra admitted he had stomped or kicked Holcomb a couple of times, and helped wrap the body and move it to the garage. Vizcarra, however, claimed the three other men took Holcomb into the bedroom, started the beating, and stabbed Holcomb. Vizcarra claimed he kicked or stomped Holcomb because he was afraid.
Vizcarra also eventually admitted participating in the arson, including being present when the decision was made to burn Hedderson's house and pouring gasoline on the living room floor. Vizcarra claimed he did not try to light the gasoline and that the plan was to light the fire by shooting flares at the house. He believed someone had wanted him to die in the fire.
On November 19, 2002, Hedderson, while in custody and in a holding cell waiting to testify in Vizcarra's case, became aware Vizcarra was in another holding cell. Vizcarra told Hedderson not to testify and said, "If you do testify, don't say that I was there. Don't say you know me. Don't say I had anything to do with it." Vizcarra also made a comment that Hedderson understood to mean that if Hedderson testified against Vizcarra, Hedderson would be killed in prison. Later that day, Hedderson had another conversation with Vizcarra in which Vizcarra again told Hedderson to testify Vizcarra was not involved in the murder or arson. Hedderson agreed because he was afraid. Subsequently, Hedderson called his sister and asked her to contact the district attorney's office about the threat. [footnote 4: In his defense, Vizcarra presented the testimony of another man who was in the holding cell that day who stated that as Hedderson was leaving his cell, Hedderson told Vizcarra, "I'll get you in court. I'll see you later." The man thought Hedderson was joking. Vizcarra also presented the testimony of a deputy sheriff who stated he did not hear Vizcarra say anything to Hedderson that day.]

Lodgment 9 at 2-7.

PROCEDURAL BACKGROUND

On September 19, 2001, the District Attorney of San Diego County filed a two-count information charging Petitioner with murder in violation of California Penal Code ("Penal Code") § 187 (a) and arson of an inhabited structure or property in violation of Penal Code § 451(b). Clerk's Transcript, Lodgment 1, Volume 1 at 1-2. As to the murder charge, the information included special allegations that Petitioner personally inflicted great bodily injury upon the victim within the meaning of Penal Code § 1203.075(a) while he was on parole from state prison "pursuant to Penal Code § 3000, within the meaning of Penal Code § 1203.085(b)." Id. The information also alleged that Petitioner was twice previously convicted of serious felonies within the meaning of Penal Code §§ 667(a)(1), 668, 1192.7(c), and 1203(e)(4), that he served separate prison terms for these offenses and had not remained free of prison custody for five years subsequent to his release from prison for same within the meaning of Penal Code §§ 667.5(b) and 668, and that pursuant to Penal Code §§ 667 subds. (b)-(i), 1170.12, and 668, he suffered prior convictions and juvenile adjudications that are serious or violent felonies under California law. Id. at 2-4.

On December 6, 2002, a jury found Petitioner not guilty of first degree murder, but convicted Petitioner of second degree murder in violation of Penal Code § 187(a) and arson of an inhabited structure or property in violation of Penal Code § 451(b). Id. at 165-68; see also Clerk's Transcript, Lodgment 1, Volume 2 at 249-50. In a separate proceeding regarding Petitioner's prior convictions, the trial court found true the two prior serious felony convictions, which constituted two prior strikes within the meaning of the three strikes law (Penal Code §§ 667 subds. (b)-(i); 1170.12). Clerk's Transcript, Lodgment 1, Volume 2 at 252-54.

Prior to sentencing, Petitioner moved to strike his strike priors with objection from the State. Id. at 255. The trial court denied Petitioner's motion. Id.; see also Reporter's Transcript, Lodgment 2, Volume 13 at 1434-35. On February 25, 2003, the trial court imposed a total sentence of sixty years-to-life, which comprised of consecutive sentences of twenty-five years-to-life for second degree murder and arson, and an additional five consecutive years for each of the prior strikes. Reporter's Transcript, Lodgment 2, Volume 13 at 1435-37;see also Clerk's Transcript, Lodgment 1, Volume 1 at 196-97.

Petitioner appealed to the California Court of Appeal, Fourth Appellate District, Division One. Clerk's Transcript, Lodgment 1, Volume 1 at 198-99. On October 26, 2004, the California Court of Appeal affirmed his conviction in an unpublished opinion. Lodgment 9. Petitioner then filed a petition for review in the California Supreme Court, see Petition for Review of the Opinion of the California Court of Appeal, Lodgment 10, which was summarily denied on January 19, 2005 without citation of authority. Order of the California Supreme Court, Lodgment 11.

On August 1, 2005, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. Respondent filed an Answer on September 23, 2005. Doc. No. 5. On October 24, 2005, Petitioner filed a Travers in Opposition to the Return to the Order to Show Cause (construed as a Traverse). Doc. No. 7.

STANDARD OF REVIEW

Title 28 of the United States Code, section 2254 (a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).

The Petition was filed after enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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). Summary denials do constitute adjudications on the merits. See Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002). Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991).

A state court's decision is "contrary to" clearly established federal law if the state court: (1) "arrives at a conclusion opposite to that reached" by the Supreme Court on a question of law; or (2) "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's]." Williams v. Taylor, 529 U.S. 362, 405 (2000).

A state court's decision is an "unreasonable application" of clearly established federal law where the state court "identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable." Andrade, 538 U.S. 75-76 (emphasis added) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412.

Finally, habeas relief is also available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C. § 2254(d) (2). A state court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were objectively unreasonable in light of the evidence presented in the state court proceeding. See Miller-El, 537 U.S. at 340. This Court will presume that the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e) (1).

DISCUSSION

Petitioner asserts three claims in his Petition but relies upon the arguments his counsel presented to the California Court of Appeals and the California Supreme Court for his legal analysis. Petition at 6-8. First, Petitioner alleges that the trial court improperly excluded evidence supporting a duress defense in violation of his Sixth Amendment right to present a defense.Id. at 6-6b. Second, Petitioner argues that the trial court erroneously allowed the admission of hearsay statements in violation of his Sixth Amendment right to confrontation. Id. at 7-7a. Third, Petitioner claims the trial court wrongly imposed consecutive twenty-five years-to-life sentences based upon its finding that the murder and arson occurred on separate occasions in violation of his Sixth Amendment right to a jury trial. Id. at 8.

Respondent contends that Petitioner has suffered no constitutional violation entitling him to federal habeas relief. Answer at 2. Respondent also argues that the Petition should be denied because Petitioner fails to demonstrate that the California Court of Appeal's decision was either contrary to, or involved an unreasonable application of, clearly established federal law. Id. at 3, 5-7, 10-11, 13-15. Similarly, Respondent maintains that the state courts' decisions were not based on an unreasonable determination of the facts presented, and as such, insists that Petitioner's claims must be denied. Id. Finally, Respondent disputes any request by Petitioner for an evidentiary hearing, declaring that the allegations at issue are based on the uncontested appellate record, and were reasonably denied on the merits. Id. at 16.

A. Sixth Amendment Right to Present a Defense

In his first ground for relief, Petitioner argues that the trial court improperly excluded evidence supporting his duress defense. Petition at 6-6b. Admitting that he kicked the victim twice, but only out of fear for his own safety due to the presence of the three men affiliated with the Mexican Mafia, Petitioner claims he sought to introduce two categories of evidence to establish that he acted under duress: (1) evidence related to a man identified as "Toker," who, according to Petitioner, was involved in the plan to dispose of the victim's body, was at the residence when it caught fire, and was subsequently found in possession of a sawed-off shotgun when stopped by police for reasons unrelated to the homicide, and (2) recordings of telephone calls intercepted during a Drug Enforcement Agency investigation of the Mexican Mafia. Id. Petitioner maintains this evidence was relevant to prove "Toker" had a connection to the three men involved in the murder, to show the Mexican Mafia had a history of and a propensity for violence, and to corroborate his fear of the three men. Id. at 6a. Petitioner argues that by excluding this evidence, the trial court not only deprived him of an outcome-determinative defense, but also denied him his Sixth Amendment right to present that defense. Id. at 6-6b;see also Traverse at 2.

In his Traverse, Petitioner also attempts to support his duress defense with evidence of threats made to him by unidentified individuals after the homicide. Traverse at 2. Petitioner, however, fails to elaborate further, and does not list in his Petition these threats among the evidence he claims was wrongfully excluded by the trial court. Id. Moreover, neither the California Supreme Court's nor the California Court of Appeal's opinions addressed evidence of such threats.

In his Traverse, Petitioner claims that the trial court's exclusion of this evidence also violated his Fourteenth Amendment rights. Traverse at 2. As with the threats cited in note 3,supra, Petitioner does not include a separate Fourteenth Amendment claim in his Petition, and fails to direct any specific argument to how his Fourteenth Amendment rights were violated.Id. This Court recognizes, however, that "[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). In light of this relationship between the Sixth and Fourteenth Amendments, this Court construes the Fourteenth Amendment allegation included in Petitioner's Traverse as mere reference to the Sixth Amendment's applicability to the states by way of the Fourteenth Amendment. In light of this link between the Sixth and Fourteenth Amendments, and because Petitioner primarily focuses his initial claim for habeas relief on the alleged violation of his Sixth Amendment right to present a defense, this Court will analyze Petitioner's first claim under the Sixth Amendment standard.

As a threshold matter, it is well established that "federal habeas corpus relief does not lie for errors of state law."Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). On federal habeas review, therefore, the due process inquiry is limited to whether the exclusion of evidence was either arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999), cert. denied, 528 U.S. 1198 (2000); Colley v. Summer, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986). As such, in order to obtain relief on the basis of evidentiary error, a habeas petitioner must show that the error was one of constitutional dimension, and that it was not harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993).

The California Supreme Court summarily denied Petitioner's petition for review, so this Court must look through to the last reasoned state court decision. See Ylst, 501 U.S. at 801-06. Here, the last reasoned state court decision came from the California Court of Appeal, which rejected Petitioner's claims with regard to both categories of evidence:

(A) Evidence relating to "Toker"

According to Vizcarra, "Toker" was involved in the discussions about what to do about Holcomb's body, and participated in setting the house on fire. Vizcarra sought to introduce evidence that shortly after the murder and arson, Toker had led the police on a high-speed chase in a blue Mustang. In the Mustang, the police had found a sawed-off shotgun. Vizcarra argues this evidence was relevant to show that Toker had a connection to the three men involved in the murder, since the three men had arrived in a blue Mustang, and to show Toker had violent propensities since he possessed a sawed-off shotgun.
The court excluded the evidence under [California] Evidence Code section 352, finding the evidence would confuse the issues, result in an undue consumption of time and had little probative value to Vizcarra's duress defense, particularly since it appeared to be an isolated event. We agree with the trial court. This one incident involving Toker who, according to Vizcarra was not one of the three men involved in committing the murder, had little relevance to establishing that the three men involved in the murder had threatened Vizcarra into participating in the murder and arson. We also note that in his statements to the police, Vizcarra specifically stated that Toker's blue Mustang was not the same car as the one driven by the three men.

(B) Wiretap Evidence

As part of a Drug Enforcement Agency investigation into the Mexican Mafia, a wiretap was placed on the cell phone used by Rosario Mercado ("Chayo"), who, according to Vizcarra, was one of the three men involved in committing the murder. According to the record we have on appeal, in one phone call, referring to the murder-arson charges, Mercado referred to a "snitch" named "Gerardo."
The court excluded the wiretap evidence under [California] Evidence Code section 352 because it was too vague, had limited probative value, and would unduly confuse the jury. We agree with the trial court, the reference was extremely vague and thus had little probative value to establishing Vizcarra participated in the beating and arson only out of fear of the Mexican Mafia. Moreover, even if the court erred in excluding the evidence, the error was harmless, given its limited probative value and the abundant evidence establishing Vizcarra was a full participant in the crimes and not acting due to duress.

Lodgment 9 at 20-22. Again, to petition successfully for writ of habeas corpus, Petitioner must demonstrate that this decision by the California Court of Appeal was either contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts presented.

Under clearly established federal law, criminal defendants must be afforded a "meaningful opportunity to present a complete defense" at trial. See Crane, 476 U.S. at 690 (quotations omitted). Indeed, the right of an accused in a criminal trial to due process itself "is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294 (1973). A defendant's right to present relevant evidence in his defense, however, "is not unlimited, but rather is subject to reasonable restrictions."United States v. Scheffer, 523 U.S. 303, 308 (1998); see also Taylor v. Illinois, 484 U.S. 400, 410 (1988); Rock v. Arkansas, 483 U.S. 44, 55 (1987); Chambers, 410 U.S. at 295. As a result, a defendant's interest in presenting defense evidence may "bow to accommodate other legitimate interests in the criminal trial process." Scheffer, 523 U.S. at 308 (citations omitted). For example, legislatures have broad discretion to craft evidentiary rules that further legitimate state interests related to criminal proceedings. Id. "Such rules do not abridge an accused's right to present a defense so long as they are not `arbitrary' or `disproportionate to the purposes they are designed to serve.'" Id. (quoting Rock, 483 U.S. at 56). As such, a court's decision to exclude evidence is only unconstitutionally arbitrary or disproportionate "where it has infringed upon a weighty interest of the accused." Id.

To resolve the conflict between the accused's right to present evidence and the states' legitimate interest in reliable and efficient trials, and to evaluate whether a state court's exclusion of evidence reaches constitutional proportions, the Ninth Circuit 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.
Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.), amended on other grounds, 768 F.2d 1090 (9th Cir. 1985), cert. denied, 475 U.S. 1048, 1049 (1986) (citing Perry v. Rushen, 713 F.2d 1447, 1452-53 (9th Cir. 1983), cert. denied, 469 U.S. 838 (1984); see also Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000) (explaining that Ninth Circuit caselaw "may be persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law," and may also assist in determining what law is "clearly established"). The importance of the evidence must then be balanced against the state's interest in exclusion.Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990). To overcome the state's strong interest in the administration of its trials, the circumstances of the exclusion must be "unusually compelling." See Perry, 713 F.2d at 1452.

This Court begins its analysis with an evaluation of the first factor: the probative value of the excluded evidence to the central issue at trial. See Miller, 757 F.2d at 994. At trial, Petitioner acknowledged he witnessed the attack on the victim, admitted that he kicked the victim twice, and conceded that he was present at the house at the time of the fire. Lodgment 9 at 5-6; see also Petition for Review of the Opinion of the California Court of Appeal, Lodgment 10 at 3. Nevertheless, Petitioner insisted that he participated in the "assault" and arson under duress, namely, out of fear of being harmed or killed by the three members of the Mexican Mafia present at scene. Id. Thus, central issues at trial hinged on the nature and extent of Petitioner's participation in the crimes alleged, and perhaps more importantly, the availability of a duress defense. Under Penal Code § 26, duress is a perfect defense against criminal charges when the accused "committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused." Penal Code § 26 (1999). Under California law, a successful duress defense "lies in the immediacy and imminency of the threatened action," and requires proof of "an active aggressor threatening immediate danger." People v. Vieira, 35 Cal. 4th 264, 289 (Cal. 2005). A threat of some future harm, such as a death threat to be carried out at some undefined time, will not diminish criminal culpability. Id.

Notably, California law provides that duress cannot negate the elements of malice or premeditation, thereby reducing a first degree murder to manslaughter or second degree murder. See People v. Anderson, 28 Cal. 4th 767, 781-84 (Cal. 2002). Moreover, because duress cannot as a matter of California law negate the intent, malice, or premeditation elements of first degree murder, duress also cannot negate the requisite intent for one accused of aiding and abetting a first degree murder. Id. at 784.

In this case, both the evidence of the incident related to "Toker" and the wiretapped telephone recordings had little probative value as to whether Petitioner participated in the murder and arson due to an active aggressor's threats of immediate danger or imminent bodily harm. The questions before the jury were whether the evidence sufficiently established Petitioner committed the murder and subsequent arson, and if so, whether Petitioner participated in those crimes solely under duress. Whether an individual who by Petitioner's own admission did not participate in the murder had violent propensities, and whether a second individual made brief reference to Petitioner or a person with the same first name as Petitioner on a wiretapped telephone call in the weeks after the murder and arson is simply not relevant to these questions. As the Court of Appeal correctly underlined, an unrelated, isolated incident involving "Toker" and telephone recordings with vague references to a "Gerardo" and the murder-arson charges, both of which occurred after the murder and arson in question, provide little insight into the motivations behind Petitioner's participation in these crimes when committed. Lodgment 9 at 21-22. In other words, evidence of subsequent incidents and brief allusions to Petitioner provide little support for a claim that at the time of the murder and arson, Petitioner's actions were prompted solely by threats of immediate danger to his own safety. As a result, the first factor weighs against Petitioner.

The majority of the remaining factors also undermine Petitioner's argument. For example, the second factor, reliability, cuts against Petitioner. Petitioner sought to introduce photographic (and presumably, testimonial) evidence to support the "Toker"-related information, as well as transcripts of tape recordings compiled during a Drug Enforcement Agency investigation. Reporter's Transcript, Lodgment 2, Volume 6 at 808-09, 815-22; see also id., Volume 7 at 850-58. While both agreed that at least the wiretap summaries were true and accurate representations of the telephone calls in question, see Reporter's Transcript, Lodgment 2, Volume 7 at 855, the vagueness of and potential hearsay issues inherent in the wiretap evidence, coupled with the lack of direct testimony to corroborate either category of information, rendered the proffered evidence less than reliable.Id. at 858. The third factor, whether the trier of fact was capable of evaluating the evidence, similarly does not weigh in Petitioner's favor. As discussed above, evidence of an isolated incident involving an individual not involved in the murder, and vague references to Petitioner in recorded conversations occurring subsequent to the murder and arson have little probative value to any contested issue, and thus admission of such evidence may well have confused the jury. Moreover, because this evidence would have required a series of mini-trials to be properly admitted, see id., Volume 6 at 822, such evidence would have unnecessarily distracted the jury's attention from the charges in question. The fourth factor's inquiry, whether this information was the sole evidence of its kind or was merely cumulative, also weighs against Petitioner. Although Petitioner did not testify on his own behalf at trial, the jury heard a tape-recorded version of Petitioner's own statements to the police, which included repeated assertions that he participated in the crimes out of fear for his own safety. Id., Volume 5 at 686-88; see also Lodgment 9 at 5-6. However, the fifth factor, whether the evidence constitutes a major part of Petitioner's attempted defense, weighs slightly in Petitioner's favor. The trial court having excluded this evidence, Petitioner was left only with his own statements to police to support the reasonableness of his alleged fear. Reporter's Transcript, Lodgment 2, Volume 6 at 822; see also id., Volume 7 at 850-58. Nevertheless, as noted above, evidence of an isolated, unrelated event and vague references to Petitioner and the charges at issue shed little light on Petitioner's state of mind or the reasonableness of his fear for his safety at the time of the murder and arson; such after-the-fact evidence lends little support to Petitioner's argument that he only participated in the crimes out of fear of immediate or imminent harm.

At trial, Petitioner did not restrict his defense to assertions that his allegedly limited participation in these crimes was prompted solely by duress. He also contested the extent of his involvement in the murder and arson altogether. In fact, Petitioner directed the essence of his defense to the establishment of reasonable doubt with regard to his role in the crimes. See Reporter's Transcript, Lodgment 2, Volume 10 at 1172-1224. While this Court acknowledges that Petitioner's decision to so focus his defense is likely attributed at least in part to the trial court's exclusion of evidence purportedly offered in support of his duress defense, see id., Volume 6 at 822 and Volume 7 at 850-58, Petitioner's lack of other admissible evidence to substantiate his duress claims is telling.

On balance, these five factors weigh against the admission of the evidence related to "Toker" and the wiretap recordings. This Court therefore concludes that Petitioner's right to present this evidence in defense of the charges against him was properly outweighed by the State's interest in the administration of a reliable and efficient trial. As such, this Court finds that the trial court's exclusion of such evidence did not violate Petitioner's due process rights. See Taylor, 484 U.S. at 409;Tinsley, 895 F.2d at 503.

Moreover, even assuming the trial court did err in excluding the evidence, the error was harmless. As the Court of Appeal correctly noted, given the "limited probative value [of the excluded evidence] and the abundant evidence establishing [Petitioner] was a full participant in the crimes and not acting due to duress," see Lodgment 9 at 22, this Court finds that the exclusion did not have a "substantial and injurious effect or influence in determining the jury's verdict" against Petitioner.See Brecht, 507 U.S. at 623 (quoting and adopting the harmless error standard created in Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In fact, as highlighted by Respondent, even if the jury heard that "Toker" was stopped by the police while in possession of a sawed-off shotgun some time after the murder and arson, and that a possible member of the Mexican Mafia made brief reference to Petitioner during a telephone call wiretapped in an unrelated drug investigation subsequent to these crimes, it is unlikely that the jury would have found Petitioner not guilty of murder or arson. Answer at 7. The jury heard Petitioner's admissions to police that he participated in the murder and arson. Id. The jury also heard Petitioner's claims that he did so only out of fear for his own safety. Id. The jury rejected Petitioner's version of the crimes. Id. Consequently, this Court finds that it is not reasonably probable that a different verdict would have resulted had these categories of evidence been admitted.

For the foregoing reasons, this Court finds that the California Court of Appeal's decision upholding the exclusion was neither contrary to, nor an unreasonable application of, clearly established federal law. See Williams, 529 U.S. at 412-13. Accordingly, this Court RECOMMENDS that Petitioner's first ground for habeas relief be DENIED. B. Sixth Amendment Right to Confrontation

In his second ground for relief, Petitioner contends the trial court, having erroneously determined a twelve year-old declarant's hearsay statements were admissible as prior inconsistent statements, improperly allowed the prosecution to recall a witness to relay those statements to the jury in violation of his Sixth Amendment right to confrontation. Petition at 7-7a. Petitioner argues that he was not afforded the opportunity to confront the twelve year-old declarant at trial, and that the hearsay statements introduced were not statements made by that declarant, but rather were the allegations of the recalled witness. Traverse at 3. Petitioner also maintains that the trial court's error in allowing such testimony was not harmless, and thus requires reversal. Id. at 4.

Petitioner explains that the recalled witness' testimony consisted of nothing more than vague, uncorroborated recollections of statements made by her twelve year-old nephew, and that such statements were not sufficiently reliable to offset the violation of Petitioner's Sixth Amendment rights. Traverse at 4.

Respondent argues that the evidentiary ruling Petitioner challenges in his second ground for relief does not implicate the Sixth Amendment's Confrontation Clause because the hearsay declarant was available for cross-examination at trial. Answer at 8. Respondent equally suggests that the non-testimonial nature of the statements uttered by the twelve year-old declarant renders Confrontation Clause concerns inapplicable under Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004). Id. Moreover, Respondent alleges that even under pre-Crawford precedent, the state courts' rejection of Petitioner's hearsay objections neither contradicted nor misapplied then-established federal law.Id. at 8-10. Finally, Respondent contends that even if the evidentiary ruling was error, Petitioner cannot overcome harmless error analysis, and therefore insists that his second claim be denied. Id. at 10-11.

The California Court of Appeal rejected Petitioner's arguments, beginning with an analysis of the twelve year-old declarant's trial testimony:

J.H., then 12 years old, testified his father's friend (Holcomb) bumped his brother into a wall while he was swinging him. Another "guy" (Vizcarra) then came over but J.H. did not know Vizcarra. Vizcarra went to the kitchen where the phone was and then three men, whom J.H. did not know, arrived at the house. J.H. went outside to play. A short time later, his father and brother came outside and they all went to someone else's house. When they returned, they saw his aunt who took him and his brother to a party.
J.H. testified he did not know if Vizcarra lived in the garage. He could not remember if he told his aunt about Holcomb swinging his brother. He denied telling his aunt that Vizcarra had "got mad"; explaining he "didn't know that [Vizcarra] got mad. He just called his friends." J.H. was certain he did not tell his aunt that Vizcarra said he was going to "beat up" Holcomb.
The court, after taking into account J.H.'s age and the fact the murder-arson occurred over a year earlier, found J.H. "was being evasive in his answers when he said he couldn't remember certain things," found J.H. had specifically denied making some statements, and concluded J.H.'s statements to his aunt could be admitted as prior inconsistent statements.
The aunt was then allowed to testify J.H. told her "something to the effect" that Holcomb had swung his brother by the arms and bumped him into a wall. Vizcarra ("the guy that lived in the garage") became angry with Holcomb because he had dropped the brother, there was a fight in the garage, and Vizcarra said he was going to have his friends come over and take care of Holcomb.
A prior extrajudicial statement may be admitted if the statement is inconsistent with a witness's trial testimony. (Evidence Code, §§ 770, 1235.) "Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. [Citation.] However, courts do not apply this rule mechanically. `Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness.' [Citation.] When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's `I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper. [Citation.]" ( People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220; People v. Ervin (2000) 22 Cal. 4th 48, 84-85.)
Initially, we note that as to some of J.H.'s prior inconsistent statements, he specifically denied making the statements, e.g., that Vizcarra "got mad" or that he was going to beat up Holcomb.
Second, Vizcarra is essentially asking us to reweigh the evidence, that is, to make a factual determination that J.H. was not deliberately evasive. [footnote 9: Vizcarra also contends the court failed to make a finding J.H. was deliberately evasive. Such a finding, however, is implicit in the court's ruling.] The rules of appellate review do not permit us to reweigh the evidence or to make factual determinations. (See People v. Ochoa, supra, 6 Cal. 4th at p. 1206; People v. Green (1997) 51 Cal.App.4th 1433, 1437.) Whether a witness is being deliberately evasive involves a uniquely factual determination requiring an assessment of the witness's demeanor, something the trial court expressly took into account. On appeal, there is only the cold record and therefore the appellate court must defer to a trial court's factual finding on evasiveness.
Moreover, we disagree with Vizcarra's assertion that J.H. had no possible motive to lie. J.H. was testifying at the trial of a man who had murdered his father's friend, burned his house, and had threatened his father. Fear is an obvious motive for J.H.'s decision to be deliberately evasive as to incriminating details.
We find no abuse of discretion in the trial court's decision to admit J.H.'s prior inconsistent statements. Moreover, even if we were to conclude the court erred in admitted the prior statements, we would not reverse because it is not reasonably probable a different verdict would have resulted had the statements been excluded. (See People v. Watson (1956) 46 Cal.2d 818.)
J.H.'s prior statements were not the only evidence that showed Vizcarra had become angry with Holcomb and made the phone call that brought the three men to his house. Hedderson testified that after Holcomb bumped his younger son into the wall, Vizcarra confronted Holcomb, disrespectfully said, "You shouldn't have done that to a small child," walked out of the room, and a few minutes later the three men arrived. Vizcarra, in his interview statement, admitted he made the phone call because Holcomb was "in his face" and that as a result of his phone call, the three men arrived. Further, there was abundant evidence to support Vizcarra's murder and arson convictions. He admitted to the police that he had participated in both. There was eyewitness testimony that Vizcarra had dragged Holcomb into the bedroom and that shortly thereafter Holcomb appeared to have been severely beaten. There was consciousness of guilt evidence, including Vizcarra's strange conduct when Hedderson's sister arrived, and his interaction with the homeless man where he sought to borrow a pair of pants and have his own pants buried. Further, the homeless man described Vizcarra as "hyped up" and carrying a knife. Additionally, there was the fact that Vizcarra was burned in the fire, thus confirming his participation in the arson. There is no reasonable likelihood the jury would have acquitted Vizcarra of either the murder or arson had J.H.'s extrajudicial statements to his aunt been excluded. [footnote 10: Vizcarra also claims admission of the statements violated his Sixth Amendment right of confrontation. We need not address this issue since we have concluded that even if the statements were erroneously admitted, the error was harmless.]

Lodgment 9 at 16-20. Once again, Petitioner argues that the California Court of Appeal erred in affirming the trial court's admission of the hearsay statements in violation of his Sixth Amendment right to confrontation. Petition at 7-7a; see also Traverse at 3-4. This Court must analyze whether the California Court of Appeal's decision was contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d).

It is clearly established federal law that in both state and federal criminal prosecutions, the accused has a right, guaranteed by the Sixth and Fourteenth Amendments, "to be confronted with the witnesses against him." U.S. Const. amend. XVI, cl. 5; see also Pointer v. Texas, 380 U.S. 400, 403 (1965) (applying the Sixth Amendment to the states). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990). In other words, the "main and essential purpose of confrontation is to secure for the opponent an opportunity of cross-examination." Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (internal quotations omitted); see also LaJoie v. Thompson, 217 F.3d 663, 668 (9th Cir. 2000). Nevertheless, the Confrontation Clause confers no guarantee that every witness called will provide testimony unmarred by forgetfulness, confusion, or evasion. See Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985) (per curiam). Rather, the Confrontation Clause "is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Id.; see also United States v. Owens, 484 U.S. 554, 559 (1988) (noting that the accused has had a sufficient opportunity to cross-examine a witness where he has been able to illuminate "the witness' bias, his lack of care and attentiveness, his poor eyesight, and even . . . the very fact that he has a bad memory").

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court outlined the parameters of the Sixth Amendment's Confrontation Clause as it relates to the admission or exclusion of hearsay statements:

[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law-as does [ Ohio v.] Roberts[, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.
Crawford, 541 U.S. at 68. Prior to announcing this standard, however, the Crawford Court reiterated that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Id. at 59 n. 9 (citingCalifornia v. Green, 399 U.S. 149, 162 (1970) (explaining that "where the declarant is not absent, but is present to testify and to submit to cross-examination . . . the admission of his out-of-court statements does not create a confrontation problem")); see also United States v. Valdez-Soto, 31 F.3d 1467, 1470 (9th Cir. 1994) (holding that Confrontation Clause is not violated where the declarant is in court and the defendant can cross-examine him). Thus the Confrontation Clause "does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Crawford, 541 U.S. at 59 n. 9.

Although the Supreme Court has not held that Crawford is retroactive, the Ninth Circuit has in Bockting v. Bayer, 399 F.3d 1010, 1021 (9th Cir. 2005), opinion amended on denial of rehearing, 408 F.3d 1127, pet. for cert. filed, 74 U.S.L.W. 3308 (Nov. 7, 2005), and this Court is bound by that precedent.

As noted above, the California Court of Appeal concluded that even if the trial court's evidentiary ruling was error, such error was harmless. Lodgment 9 at 20 n. 10. Having made this determination, the California Court of Appeal declined to reach the Confrontation Clause issue. Id. Thus, there is no state court decision on this issue to which this court can afford deference. Because it is clear that the state court has not reached the merits of the Confrontation Clause issue properly raised by petitioner, this Court must review this aspect of his claim de novo. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (citing Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001) (holding that a federal habeas court must review de novo purely legal issues and mixed questions of law and fact when, "although properly preserved by the defendant, the state court has not reached the merits of a claim thereafter presented to a federal habeas court")).

This Court's review of the record, as well as Petitioner's own discussion of the facts supporting his second ground for habeas relief, reveal that the twelve year-old declarant in question, "J.H.", testified at trial. See Reporter's Transcript, Lodgment 2, Volume 4 at 504-38; see also Petition at 7 (describing the subject matter of J.H.'s trial testimony). Petitioner therefore had an opportunity to probe and to expose the infirmities of J.H.'s testimony by posing questions to test his memory of those statements he may or may not have made to his aunt on cross-examination. See Reporter's Transcript, Lodgment 2, Volume 4 at 527-38; see also Fensterer, 474 U.S. 21-22. As a result, the evidence related to the statements allegedly made by J.H. to his aunt was not, as Petitioner insists, limited solely to the uncorroborated, vague recollections of his aunt, but instead also included an evaluation of J.H.'s own recollection (or lack thereof) of making such statements. Consequently, the trial court's decision to admit J.H.'s comments as prior inconsistent statements implicates neither the Confrontation Clause nor the admissibility rule enunciated in Crawford. See Green, 399 U.S. at 168 (explaining that the "subsequent opportunity for cross-examination examination at trial with respect to both present and past versions of the event, is adequate to make . . . admissible, as far as the Confrontation Clause is concerned, . . . [an] off-hand remark"). Accordingly, this Court finds that Petitioner suffered no violation of his Sixth Amendment right to confrontation as a result of the trial court's admission of J.H.'s prior inconsistent statements. See United States v. Armijo, 5 F.3d 1229, 1234 (9th Cir. 1993) (noting that because declarant was present as a witness and was subject to cross-examination, the admission of declarant's prior statement did not violate the Confrontation Clause).

As Respondent correctly suggests, the non-testimonial nature of the statements made by J.H. to his aunt does not implicate the admissibility standard set forth in Crawford. Answer at 8. Specifically, the Crawford Court was careful to distinguish between testimonial statements, which are subject to Confrontation Clause scrutiny, and non-testimonial statements, which need not be." United States v. Hagege, 437 F.3d 943, 957 (9th Cir. 2006) (explaining that "the stringent requirement of confrontation resurrected in Crawford does not apply to non-testimonial evidence"); see also Leavitt v. Arave, 383 F.3d 809, 830 n. 22 (9th Cir. 2004) (reasoning that victim's hearsay statements did not "implicate `the principal evil at which the Confrontation Clause was directed[:] . . . the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.'" (citation omitted)). Although the Crawford Court did not provide a comprehensive definition of the term "non-testimonial" evidence, the Court did provide guidance with regard to what constitutes "testimonial" evidence, namely, "prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations." Crawford, 541 U.S. at 68. Because J.H. allegedly made the statements at issue to his aunt some time after the murder and arson, and not during a formal hearing or during a police interrogation, his statements are non-testimonial under Crawford. As such, the Crawford test for admissibility does not apply here.

In addition, although Petitioner does not expressly allege any constitutional violations in his second claim for relief other than the Sixth Amendment, implicit in his Sixth Amendment right to confrontation argument is the contention that the trial court erroneously admitted J.H.'s statements as prior inconsistent statements under California Evidence Code §§ 770, 1235. Petition at 7-7a; see also Traverse at 4. As noted above, a trial court's evidentiary ruling does not warrant federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision, or by depriving the accused of a fair trial as guaranteed by due process. See Pulley, 465 U.S. at 41;Jammal, 926 F.2d at 919-20. Because federal courts are required to interpret pro se pleadings liberally, see Rand v. Rowland, 154 F.3d 952, 957-58 (9th Cir. 1998), this Court will interpret Petitioner's second claim as also asserting a due process violation.

California Evidence Code § 1235 provides: "[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Cal. Evid. Code § 1235 (1995). California Evidence Code § 770 provides:

[u]nless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:
(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or
(b) The witness has not been excused from giving further testimony in the action.

Cal. Evid. Code § 770 (1995).

To establish a due process violation in habeas proceedings, Petitioner must demonstrate that the state court's decision to admit the challenged evidence was either arbitrary or so prejudicial that it rendered the trial fundamentally unfair.See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). "Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not; [courts] must rely on the jury to sort them out in light of the court's instructions." Jammal, 926 F.2d at 920 (footnote omitted). Moreover, "[o]nly if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must `be of such quality as necessarily prevents a fair trial.'" Id. (citation omitted). As a result, to obtain habeas relief for a trial court's evidentiary error, Petitioner must establish that the error was one of constitutional dimension, and that such error was not harmless.See Brecht, 507 U.S. at 637.

Again, Petitioner seemingly contends that the trial court improperly characterized J.H.'s statements as prior inconsistent statements, and thus erroneously allowed their admission on this basis in violation of his due process rights. Petition at 7-7a;see also Traverse at 4. As set forth above, however, the California Court of Appeals correctly analyzed the appropriate standard for evaluating the admissibility of J.H.'s statements. Lodgment 9 at 17-20. For example, after having noted the requirements necessary for the admission of a prior extrajudicial statement under California Evidence Code §§ 770, 1235, the appellate court underlined that at trial, J.H. specifically denied making some of the prior statements to his aunt. Id. at 18. Next, the appellate court highlighted that Petitioner's argument on appeal was a thinly veiled request for a reassessment of the evidence; Petitioner asked that the appellate court make its own factual determination whether J.H. was deliberately evasive. Id. The appellate court properly declined to re-assess J.H.'s trial testimony and demeanor, explaining that it must defer to the trial court's factual determination regarding evasiveness. Id. Moreover, the appellate court emphasized that J.H. had an obvious motive to provide false or conflicting testimony at trial: fear. Id. Noting that J.H. was testifying at the trial of a man accused of murdering his father's friend, burning his home, and threatening his father, the appellate court questioned any contention by Petitioner that J.H.'s decision to be deliberately evasive as to incriminating details could not have been prompted by fear. Id. at 18-19. Given these considerations, the appellate court properly detected no abuse of discretion in the trial court's decision to admit J.H.'s comments to his aunt as prior inconsistent statements.Id. at 19. Accordingly, this Court finds that the trial court's admission of the evidence, as well as the appellate court's review of that decision, was neither arbitrary nor so prejudicial so as to render Petitioner's trial fundamentally unfair.

In addition, the California Court of Appeal also evaluated the admission of J.H.'s statements under the harmless error standard, concluding that even if the trial court's admission of the statements was error, that error would not require reversal "because it is not reasonably probable a different verdict would have resulted had the statements been excluded." Lodgment 9 at 19. In particular, the appellate court underlined that J.H.'s father, John Hedderson, Sr., offered testimony that mirrored J.H.'s assertions that Petitioner became angry with the victim and summoned the three members of the Mexican Mafia to the house on the afternoon of the murder. Id. The appellate court referenced Petitioner's own police interview statement, in which he conceded having contacted the three men, and that these men came to the house at his urging and in response to his statements that the victim was "in his face." Id. The appellate court also recounted the abundant evidence supporting Petitioner's murder and arson convictions, which included Petitioner's own admissions that he participated in both crimes, evidence that Petitioner sustained severe burns in the house fire, eyewitness testimony that Petitioner forced the victim into a bedroom and soon thereafter the victim appeared to have been severely beaten, and "consciousness of guilt evidence" — confirmed by two sources — that Petitioner exhibited strange behavior soon after the murder.Id. Having thus emphasized the substantial evidence supporting Petitioner's conviction even in the event of evidentiary error, the appellate court reasonably determined that it is unlikely that the jury would have acquitted Petitioner of either the murder or the arson had J.H.'s statements to his aunt been excluded. Id. at 19-20.

In conclusion, this Court finds that the California Court of Appeal's decision upholding the admission of J.H.'s statements to his aunt as prior inconsistent statements did not violate Petitioner's Sixth Amendment right to confrontation or his federal right to due process. As such, for the foregoing reasons, this Court also finds that the appellate court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law. See Williams, 529 U.S. at 412-13. This Court therefore RECOMMENDS that Petitioner's second ground for habeas relief be DENIED. C. Sixth Amendment Right to a Jury Trial

In his final ground for habeas relief, Petitioner claims that the trial court's imposition of consecutive twenty-five years-to-life sentences for murder and arson violated his Sixth Amendment right to a jury trial as explained in Blakely v. Washington, 542 U.S. 296 (2004). Petition at 8. Petitioner disputes the California Court of Appeal's finding that Blakely does not apply to consecutive sentences, and insists that any fact increasing his prison term beyond the statutory maximum must be found by the jury, not the court. Traverse at 5. Petitioner alleges that the trial court incorrectly determined that the murder and arson occurred on separate occasions, and in turn, used that improper determination to impose consecutive sentences in violation of his Sixth Amendment rights. Id. Petitioner contends that this alleged violation constitutes reversible error. Id.

Respondent argues that neither Blakely nor Apprendi v. New Jersey, 530 U.S. 466 (2000) create a jury trial right for the determination whether to impose consecutive sentences. Answer at 13. Respondent maintains that while facts affecting the appropriate sentence for each offense within the range of potential prison terms are subject to Blakely and Apprendi, the constitutional principles outlined in those cases do not extend to whether sentences for charges found true beyond a reasonable doubt shall be served consecutively. Id. at 13-14. As a result, Respondent contends that the appellate court's finding that Blakely was inapplicable to consecutive sentencing decisions was reasonable. Id. at 14. Respondent also declares that even if the appellate court's decision was unreasonable, such error did not have a substantial or injurious effect on Petitioner's sentence.Id. at 14-15. On these bases, Respondent asserts that Petitioner's final claim for relief must be rejected. Id. at 15.

The California Court of Appeal, the last state court to issue a reasoned decision, rejected Petitioner's argument. Lodgment 9 at 26-28. Analyzing the applicability, or lack thereof, of the rule set forth in Blakely to Petitioner's sentence, the court of appeal explained:

Vizcarra contends the imposition of punishment for both murder and arson and the court's imposition of consecutive sentences violates the recent United States Supreme Court decision in Blakely, supra, 124 S.Ct. 2531. [footnote 12: The Attorney General argues Vizcarra waived this argument by failing to raise it below. We need not resolve this issue since we conclude Blakely does not apply.] He contends a finding the murder and arson did not occur on the same occasion and thus each could be separately punished and consecutively sentenced was a finding that Blakely requires to be made by a jury, not a sentencing judge.
In Blakely, the Supreme Court held any fact (other than the fact of a prior conviction) that increases the punishment for a crime beyond the "statutory maximum" must be found by a jury, rather than a sentencing judge. ( Blakely, supra, 124 S.Ct. at p. 2537.) The court defined "statutory maximum" as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." ( Ibid., italics omitted.) Nothing in Blakely prohibits a sentencing judge from reducing a sentence based on facts not specifically found by the jury or encompassed within their verdicts.
Blakely is not implicated here. The statutory maximum, based on the jury's verdicts, for convictions of murder and arson is separate punishment for each offense. Application of section 654, based on a finding the offenses occurred on the same occasion, does not result in a sentence above the statutory maximum. Rather, the finding has the opposite result: the lessening of punishment by staying of the punishment for a lesser offense. Thus, under Blakely, such a finding may be made by the sentencing judge rather than a jury.
Nor is Blakely implicated in the imposition of consecutive sentences in this case. Vizcarra was sentenced to consecutive sentences because, following a court trial, he was found to have suffered prior strike convictions. Under the three strikes law, consecutive sentences are mandated unless the offenses were "`committed on the same occasion' or `aris[e] from the same set of operative facts.'" ( People Casper (2004) 33 Cal.4th 38, 42 ["Consecutive sentencing is discretionary under section 667, subdivision (c) only if the current felony convictions are `committed on the same occasion' or `arise[e] from the same set of operative facts.'"]; § 667, subd. (c) (6) (7).) Thus, the statutory maximum, based on the jury's verdicts, was the imposition of consecutive sentences. As with section 654, a finding the offenses occurred on the same occasion results in a reduction of the sentence from the statutory maximum. Thus, under Blakely, such a finding may be made by the sentencing judge rather than a jury.
Id. at 26-28. As before, this Court must analyze whether this decision by the California Court of Appeal was contrary to, or an unreasonable application of, clearly established federal law.See 28 U.S.C. § 2254(d).

The United States Supreme Court reshaped the confines of judicial fact-finding in the sentencing context in a trio of recent cases: Apprendi, Blakely, and United States v. Booker, 543 U.S. 220 (2005). In Apprendi, the Court established a criminal defendant's federal constitutional right to a jury trial with regard to sentencing enhancements. TheApprendi Court explained that any fact, "other than the fact of a prior conviction . . . that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 540 U.S. at 490. Thus after Apprendi, if any fact found by a judge exposes the defendant to a penalty exceeding the maximum that defendant could have received based solely on the facts found by the jury in reaching its verdict, then the judge-found fact is considered the functional equivalent of an additional element of the crime or sentence enhancement, which must be proven to the jury beyond a reasonable doubt. Id. The Apprendi Court clarified, however, that judges may exercise discretion when imposing a judgment — "taking into consideration various factors relating both to offense and offender" — as long as the sentenced imposed falls " within the range prescribed by statute." Id. at 481 (emphasis in original).

Several years after Apprendi, Blakely further distinguished between factual findings that require a jury trial and sentencing factors on which a judge may make findings by providing a concise definition of the concept of the "statutory maximum." TheBlakely Court explained that the prescribed "statutory maximum" for purposes of a defendant's right to a jury trial is not necessarily the maximum penalty dictated by statute for a given crime. See Blakely, 542 U.S. at 303. Rather, the relevant "statutory maximum" is "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. (emphasis in original). In other words, the "statutory maximum" is the maximum sentence that the judge may impose without any additional findings. Id. at 303-04. Like Apprendi, however, Blakely recognized that not all judicial fact-finding related to sentencing is constitutionally suspect. Id. at 309. For example, theBlakely Court explicitly acknowledged that indeterminate sentencing schemes involve legitimate judicial fact-finding, in which a judge "may implicitly rule on those facts he deems important to the exercise of his sentencing discretion." Id.

Further refining its opinion on this issue in Booker, the Supreme Court articulated the constitutionally significant difference between permissible judicial fact-finding, where a judge's findings result in a heavier sentence than would otherwise have been imposed, but nonetheless fall within the prescribed statutory range, and impermissible judicial fact-finding, where a judge's findings increase the sentencing range beyond that which is otherwise prescribed by statute for the underlying crime. See Booker, 543 U.S. at 235-37. TheBooker Court explained that "[t]he effect of the increasing emphasis on facts that enhance sentencing ranges . . . [is] to increase the judge's power and diminish that of the jury." Id. at 236 (emphasis added). TheBooker Court reasoned that as such sentencing enhancements become greater, the jury's finding of the underlying crime becomes increasingly less significant. Id. Consequently, theBooker Court declared the federal sentencing guidelines unconstitutional on the grounds that as written, the guidelines were mandatory and imposed binding requirements, namely, sentencing ranges, on all sentencing judges depending on facts found by the judge, not the jury. Id. at 232-35.

Accordingly, when taken together, Apprendi, Blakely, andBooker have

established a constitutionally significant distinction between a sentencing scheme that permits judges to engage in the type of judicial factfinding typically and traditionally involved in the exercise of judicial discretion employed in selecting a sentence from within the range prescribed for an offense, and a sentencing scheme that assigns to judges the type of factfinding role traditionally exercised by juries in determining the existence or nonexistence of elements of an offense.
People v. Black, 35 Cal. 4th 1238, 1253 (Cal. 2005).

As noted above, Petitioner contends that the trial court's imposition of punishment for both murder and arson, as well as its imposition of consecutive twenty-five years-to-life sentences for these offenses, violated his Sixth Amendment right to a jury trial as described in Blakely. Petition at 8. Petitioner readsBlakely as requiring that any finding that the murder and arson offenses occurred on separate occasions, which thereby subjects him to the possibility of consecutive sentencing, must be made by a jury, and not a sentencing judge. Id.; see also Traverse at 5. Petitioner's argument, as explained more fully below, misinterprets the rule set forth in Blakely.

The jury found Petitioner guilty of second degree murder and arson of an inhabited structure. Clerk's Transcript, Lodgment 1, Volume 1 at 165-67. Based on the jury's verdict convicting Petitioner of these two separate offenses, the "statutory maximum," as defined in Apprendi, Blakely, and Booker, is separate punishment for each offense. Lodgment 9 at 26. Under California law, a conviction of second degree murder subjects a defendant to a prison term of fifteen years-to-life. See Penal Code § 190(a). A conviction of arson of an inhabited structure subjects a defendant to three possible terms of incarceration: a lower term of three years, a middle term of five years, or an upper term of eight years. See Penal Code § 451(b). In this case, however, Petitioner admitted having suffered two prior serious felony convictions and one prison prior. Reporter's Transcript, Lodgment 2, Volume 13 at 1416-20. Based on Petitioner's admissions, the sentencing judge found true each prior serious felony conviction and the prison prior, noting that the two prior convictions constituted two strikes for purposes of the California three strikes law. Id. at 1420-21. Given these admitted "two strikes," the sentencing judge reasonably found Petitioner to be a recidivist felon within the spirit of the three strikes law, and therefore appropriately sentenced Petitioner to two twenty-five years-to-life sentences for the separate crimes of murder and arson. Id. at 1435-36; see also Andrade, 538 U.S. at 67 (highlighting that where a defendant has two or more prior serious or violent felony convctions, any felony can constitute the third strike under California's three strikes law, and "thus can subject a defendant to a term of 25 years to life in prison"); Ewing v. California, 538 U.S. 11, 16 (2003) (same). The sentencing judge's further imposition of an additional five years for each of Petitioner's prior serious felony convictions was similarly warranted under the three strikes law. Reporter's Transcript, Lodgment 2, Volume 13 at 1435-36; see also Clerk's Transcript, Lodgment 1, Volume 1 at 196-97.

Prior to sentencing, Petitioner's counsel requested that the sentencing judge exercise his discretion to dismiss Petitioner's admitted strike priors. Clerk's Transcript, Lodgment 1, Volume 1 at 185-91. Defense counsel later reiterated this request during oral argument. Reporter's Transcript, Lodgment 2, Volume 13 at 1425-26, 1432-33. Having presided over Petitioner's criminal trial, reviewed the Probation Officer's Reports, and heard statements made by both Petitioner's and the victim's family members, the sentencing judge found it inappropriate to dismiss any of Petitioner's prior strikes. Id. at 1434-35.

As the California Court of Appeals properly determined, Blakely does not apply to the imposition of consecutive sentences under the three strikes law. See Black, 35 Cal. 4th at 1264 (noting that the underlying rationale of Blakely "is inapplicable to a trial court's decision whether to require that sentences on two or more offenses be served consectively or concurrently"). Blakely intended to protect a defendant's right to a jury trial on all elements of a crime, which the Blakely Court ruled would be jeopardized if lawmakers could categorize facts affecting the length of the authorized sentence for a given offense as sentencing factors rather that as elements, thereby eliminating defenant's right to a jury trial on such facts. See Blakely, 542 U.S. at 306-09.Blakely therefore applies only to factual determinations that serve as the "functional equibalent" of an element of a crime. Id.; see also Black, 35 Cal. 4th at 1263. In contrast, California's three strikes law, which is specifically "designed to increase the prison terms of repeat felons," Ewing, 538 U.S. at 15, mandates the imposition of consecutive sentences where the multiple serious or violent felonies of which a defendant is currently convicted did not occur on the same occasion or did not arise from the same set of operative facts. Penal Code § 667(c)(6)-(7). Under the three strikes law, it is the jury's verdict finding the defendant guilty of the two or more felonies, and not any fact determined by the court, that authorizes the statutory maximum for each offense. As such, where the sentencing judge examines the circumstances of each offense and the defendant's criminal history to determine whether sentences should be served concurrently or consecutively, he or she does not usurp the jury's historical fact-finding role. See Black, 35 Cal. 4th at 1263. Accordingly, Petitioner's argument that the sentencing court's imposition of consecutive sentences in violation of his Sixth Amendment right to a jury trial as enunciated in Blakely must fail.See Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998) (rejecting petitioner's claim that because his prior felony conviction increased the maximum sentence to which he was exposed, his recidivism qualified as an "element" of the current offense which the government was constitutionally required to state in the indictment and to prove beyond a reasonable doubt).

Moreover, any argument by Petitioner that the sentencing judge improperly concluded that the murder and arson occurred on separate occasions, and in turn used that determination to impose consecutive sentences in violation of his Sixth Amendment rights, is also misplaced. Penal Code 654 provides:

(a) [a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.
(b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.

Penal Code § 654(a)-(b). As the California Court of Appeal explained, a sentencing judge's decision to apply this section, after having determined that the offenses at issue occurred on the same occasion or arose from the same set of operative facts, serves to reduce a defendant's sentence, not to increase that sentence in excess of the "statutory maximum" as defined inBlakely. Because this factual determination is not the functional equivalent of an element of the crimes in question, it is, under Blakely, a factual determination that is properly made by a sentencing judge. As a result, for purposes of Petitioner's Sixth Amendment right to a jury trial, the decision whether Penal Code § 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently.Black, 35 Cal. 4th at 1264. Both such decisions are properly made by the sentencing judge after the jury has decided all facts necessary to subject a defendant to the statutory maximum sentence on each offense, and neither implicates the right to a jury trial on facts that are the functional equivalent of elements of an offense. Id. On these bases, this Court finds that the California Court of Appeal reasonably concluded that the trial court sentenced Petitioner in accordance with the rule set forth in Blakely and with his Sixth Amendment right to a jury trial.

Even assuming that the determination whether the murder and arson occurred on the same occasion or arose from the same set of operative facts was a factual question that should have been submitted to a jury as a matter of clearly established federal law, this Court concurs with Respondent that in that event, Petitioner still would not be entitled to habeas relief. Petitioner has adduced no evidence to contradict the evidence considered by the trial court prior to sentencing. The evidence presented at trial, as summarized by the court during sentencing, included that Petitioner, along with several other individuals, stomped and stabbed the victim, rolled him up in a rug, left him in a garage to bleed to death while they quit the scene to decide how to dispose of the body, returned several hours later with gasoline, and proceeded to set the house and attached garage aflame. Reporter's Transcript, Volume 2, Lodgement 13 at 1434. Given the strength of this evidence, this Court finds that the alleged error, if any, did not have a substantial and injurious effect or influence on Petitioner's sentence. See Brecht, 507 U.S. at 637-38;Summerlin v. Stewart, 341 F.3d 1082, 1121 (9th Cir. 2003), rev'd on other grounds,Schriro v. Summerlin, 542 U.S. 348 (2004) (noting thatApprendi errors are not structural and therefore are subject to harmless error analysis).

For the foregoing reasons, this Court finds that the California Court of Appeal's decision that Petitioner was not sentenced in violation of his Sixth Amendment right to a jury trial or the rule set forth in Blakely was neither contrary to, nor an unreasonable application of, clearly established federal law. See Williams, 529 U.S. at 412-13. Accordingly, this Court RECOMMENDS that Petitioner's third ground for habeas relief be DENIED.

CONCLUSION AND RECOMMENDATION

In sum, this Court finds that Petitioner has failed to present any evidence suggesting that the California Court of Appeal's decision as to his claims was contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d). Nor has Petitioner made any supported argument that further factual development is necessary, such that an evidentiary hearing would be warranted. See 28 U.S.C. § 2254(e)(2) (exceptions where an evidentiary hearing may be appropriate). As such, this Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED and the case dismissed with prejudice.

For all the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation and (2) directing that Judgment be entered denying the Petition.

IT IS HEREBY ORDERED that any written objections to this Report must be filed with the Court and served on all parties no later than April 28, 2006. The document should be captioned "Objections to Report and Recommendation."

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later that May 19, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).


Summaries of

Vizcarra v. Campbell

United States District Court, S.D. California
Apr 10, 2006
Case No. 05cv1537-J (BLM) (S.D. Cal. Apr. 10, 2006)
Case details for

Vizcarra v. Campbell

Case Details

Full title:GERARDO J. VIZCARRA, Petitioner, v. ROSEANNE CAMPBELL, Warden, Respondent

Court:United States District Court, S.D. California

Date published: Apr 10, 2006

Citations

Case No. 05cv1537-J (BLM) (S.D. Cal. Apr. 10, 2006)