ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

EDWARD M. CHEN, District Judge.

I. INTRODUCTION

Juan Lorenzo Soto filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2254. In his petition, Mr. Soto contends that his federal constitutional rights were violated by the trial court's admission of evidence about statements his co-perpetrator had made to a girlfriend. The petition will be DENIED.

II. BACKGROUND

A. The Crimes

The California Court of Appeal described the events that led to Mr. Soto's conviction for murder and other crimes.

People v. Soto, 2012 WL 2393081, *1 (Cal. Ct. App. June 26, 2012) (alterations in original).

The police officers who responded to the scene spoke to several men present who described the events of the robbery and shooting. Some of the men gave general descriptions of the men who had robbed them. While the police were talking to the victims, another man approached one of the officers and "described seeing a green Honda, containing four males, leave the scene just after the shooting. The man had written down the Honda's license plate number, so [officer] Vasquez broadcast the description of the car and the license plate number." Id. at *2. Several of the percipient witnesses to the shooting and robbery were unable to identify the perpetrators, but some later were able to do so at least tentatively.1

The California Court of Appeal also summarized evidence developed after the investigation at the scene of the crime, including the testimony of Vanessa Martinez.

Soto, at *6-* 11. Evidence of gang activities and the defendants' gang membership also was presented at trial. Id. at *11-*14.

Soto testified at trial. He admitted to being a Northern Hispanic and being a member of the VGV gang in Watsonville, but denied paying gang taxes, denied having obligations toward fellow gang members and denied having enemies among rival Sureno gangs. Id. at * 14. He admitted to being in Santa Cruz on the morning of the shooting but said he was there to look for a girl at the Santa Cruz Bible Church, but didn't find her.

Soto, at *14-*15.

B. Procedural History

A jury trial was held for Mr. Soto and Mr. Valenciano in Santa Cruz County Superior Court in 2009.2 Following the jury trial, Mr. Soto was convicted of conspiracy to commit robbery, first degree murder, five counts of robbery, and two counts of attempted second degree robbery. Sentence enhancement allegations that the crimes were for the benefit of a criminal street gang and for personal use and discharge of a firearm were found true. Mr. Soto was sentenced to a total of 84 years to life in prison.

Mr. Soto appealed. The California Court of Appeal affirmed the judgment of conviction. See Resp. Exs. 3 and 4. The California Supreme Court denied Mr. Soto's petition for review. See Resp. Ex. 6.

Mr. Soto then filed this action. His petition contends that the admission of an out-of-court hearsay statement violated his federal constitutional rights to confrontation and due process.

III. JURISDICTION AND VENUE

This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Santa Cruz County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).

IV. STANDARD OF REVIEW

This Court may entertain a petition for 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 Antiterrorism And Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. "A federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was `objectively unreasonable.'" Id. at 409.

V. DISCUSSION

A. Confrontation Clause Claim

A little more than a decade ago, the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), dramatically changed Confrontation Clause jurisprudence, and abandoned the analytic framework from Ohio v. Roberts, 448 U.S. 56 (1980), that had been used for many years. Mr. Soto's habeas petition contends that Crawford left the Roberts test intact for a subset of cases in which the evidence at issue was nontestimonial hearsay and that, applying the Roberts test, a Confrontation Clause violation occurred when certain nontestimonial hearsay was admitted at his trial. His argument fails because the Supreme Court and lower courts have determined that Crawford did not leave the Roberts test intact; instead, the rule now is that the Confrontation Clause simply does not apply to nontestimonial evidence. The California Court of Appeal erred in its analysis by applying the outdated Roberts test to deny Mr. Soto's claim. Nonetheless, because no Confrontation Clause violation occurred, Mr. Soto is not entitled to federal habeas relief. The analysis is explained in more detail below.

1. California Court of Appeal Decision3

The California Court of Appeal rejected Mr. Soto's Confrontation Clause claim in an analysis that was somewhat confusing and ultimately applied the wrong legal standard to the federal constitutional claim.

Soto, at *16-*18.

2. The Confrontation Clause — Crawford Works A Major Change

The Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to "be confronted with witnesses against him." U.S. Const. amend. VI. The ultimate goal of the Confrontation Clause "is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." Crawford, 541 U.S. at 61.

The Confrontation Clause applies to all "testimonial" statements. See Crawford, 541 U.S. at 50-51. "Testimony ... is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51 (internal quotation marks and brackets omitted); see id. at 51 ("An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not"); id. at 68 ("[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations"). In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court distinguished testimonial and nontestimonial statements to police. "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. at 822; see, e.g., id. at 826-28 (victim's frantic statements to a 911 operator naming her assailant who had just hurt her were not testimonial); id. at 829-30 (victim's statements to officer telling him what had happened were testimonial, as there was no emergency in progress and were made after police officer had separated victim and assailant); Crawford, 541 U.S. at 39-40, 68 (statements were testimonial where made by witness at police station to a series of questions posed by an officer who had given Miranda warnings to witness and was taping and making notes of the answers).

Before Crawford was decided, the Confrontation Clause analysis had been governed by the "indicia of reliability" test set out in Ohio v. Roberts, 448 U.S. 56, 65-66 (1980). Under the Roberts test, hearsay statements could be introduced only if the witness was unavailable at trial and the statements had "adequate indicia of reliability," i.e., the statements fell within a "firmly rooted hearsay exception" or bore "particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66. Roberts was overruled in Crawford, although some readers of the Crawford opinion believed that Roberts was not overruled as to nontestimonial statements. Two years later, the Supreme Court clarified in Davis v. Washington, 547 U.S. 813, 821 (2006), that the Roberts test had no continuing validity. Nontestimonial hearsay, "while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis, 547 U.S. at 821. The Supreme Court made the same point again the following term, when it referred to "Crawford's elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements." Whorton v. Bockting, 549 U.S. 406, 420 (2007).

In an en banc decision, the Ninth Circuit has recognized that the Roberts test no longer survives, and that nontestimonial statements are now outside the scope of the protection of the Confrontation Clause. See United States v. Larson, 495 F.3d 1094, 1099 n.4 (9th Cir. 2007) (en banc). The court explained that earlier it was unresolved whether the Roberts test "to determine the admissibility of out-of-court nontestimonial statements survived Crawford," but the Supreme Court then clarified in Bockting, 549 U.S. 406, "that Crawford `eliminat[es] Confrontation Clause protection against the admission of unreliable out-of-court non-testimonial statements' and that `the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.'" Larson, 495 F.3d at 1099 n.4; see also Delgadillo v. Woodford, 527 F.3d 919, 924 (9th Cir. 2008) ("Crawford rejected [the Roberts] framework for analyzing Confrontation Clause violations," and nontestimonial statements no longer raise Confrontation Clause concerns).

Other circuits also have concluded that the Confrontation Clause no longer applies to nontestimonial hearsay statements, although they have not all agreed on whether it was Crawford, Davis or Bockting that sounded the death knell. See United States v. Castro-Davis, 612 F.3d 53, 64 n.14 (1st Cir. 2010) ("until Davis, Roberts remained the controlling precedent for judging whether non-testimonial hearsay violated the Confrontation Clause. After Davis, however, non-testimonial hearsay no longer implicates the Confrontation Clause at all"); United States v. Smalls, 605 F.3d 765, 774 (10th Cir. 2010) (Davis "squarely confronted the issue of whether the Confrontation Clause had any application to nontestimonial hearsay statements, or, in other words, whether any portion of Roberts remained good law. In Davis, the Court placed the question of the admissibility of nontestimonial hearsay statements entirely outside the confines of the Confrontation Clause and rendered Roberts academic"); United States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009) (although it had been an open question whether nontestimonial statements continued to be governed by the Roberts test after Crawford, the Supreme Court's later decisions in Davis and Bockting answered the question in the negative).

3. Analysis of Federal Habeas Claim

The California Court of Appeal's analysis of Mr. Soto's Confrontation Clause claim confusingly articulated the correct legal standard in one paragraph, but then applied the incorrect legal standard in later paragraphs. The first paragraph of the analysis framed the issue. The state appellate court first noted that the trial court had found that the statements were nontestimonial and admissible under the declaration against interest exception to the hearsay rule. The state appellate court then noted that the defendants had conceded that the statements were nontestimonial and had limited their challenge to the trial court's ruling that the statements were admissible under the hearsay exception for declarations against interest. See Cal. Evid. Code § 1230. In the second paragraph, the state appellate court identified the correct legal rule, i.e., that the Confrontation Clause has no application to nontestimonial hearsay following Crawford, Davis and Bockting. The problem arises in the third paragraph of the discussion because there the California Appellate Court cited and revived the Roberts test, indicating that the Roberts test was the test for determining whether the admission of the nontestimonial hearsay statements could be admitted without offending the Confrontation Clause. The next five paragraphs of the analysis considered California law on hearsay to determine whether the hearsay statements "bore a particularized guarantee of trustworthiness." Soto, at * 18. The final two sentences and citations in the eighth paragraph show that the California Court of Appeal applied Roberts to determine that no Confrontation Clause violation had occurred. First, the California Court of Appeal stated that it had "independently review[ed] the record," — a requirement from the outdated analysis in Lilly5 that had been mentioned in the troublesome third paragraph of the California Court of Appeal's decision. Second, the California Court of Appeal found "that the statements Gonzales made to Martinez bore a particularized guarantee of trustworthiness" — a phrase that is part of the Roberts test. And third, the California Court of Appeal cited Lilly and Roberts, but not Crawford, Davis or Bockting, as support for its conclusion that the "admission of the statements did not violate the federal or state Constitutions or state law." Soto, at *18.

A state court's "mistakes in reasoning or in predicate decisions" such as using the wrong legal rule or framework "constitute error under the `contrary to' prong of § 2254(d)(1)." Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir. 2008) (en banc) (state court's review of claim for interference with right to self-representation for harmlessness was contrary to clearly established Supreme Court precedent holding that it was structural error). In such a case, habeas relief is not automatically granted; rather, the federal court must do a de novo review of the constitutional issue raised. Id. at 735 (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007)). In deciding whether there is a § 2254(d)(1) error, the federal court's analysis is confined to the state court's actual decisions and analysis, but in doing the de novo review once such an error is found, the federal court is not limited to the reasoning of the state court. Id. at 737-39; see, e.g., Moore v. Biter, 725 F.3d 1184, 1193 (9th Cir. 2013) (after finding state court decision "contrary to" federal law because it failed to apply the correct federal rule for sentencing of juvenile offenders, Ninth Circuit conducted de novo review of issue and found error).

Here, by applying the Roberts test, the California Court of Appeal used the wrong legal framework to evaluate Mr. Soto's Confrontation Clause claim. The Supreme Court's Crawford, Davis and Bockting decisions had clearly established that the Roberts test no longer applied and that nontestimonial hearsay evidence was not covered by the Confrontation Clause. The California Court of Appeal's use of the wrong rule (i.e., the Roberts test) "constitute[d] error under the `contrary to' prong of § 2254(d)(1)." Frantz, 533 F.3d at 734. That does not mean that Mr. Soto obtains habeas relief as a bonus for the state court's error; instead, it means that this Court must do a de novo review of the Confrontation Clause claim. See id.

A de novo review is a simple matter here because there is a bright line rule: the Confrontation Clause does not apply to nontestimonial hearsay. See Bockting, 549 U.S. at 420; Davis, 547 U.S. at 821; Crawford, 541 U.S. at 50-51; Larson, 495 F.3d at 1099 n.4; Delgadillo, 527 F.3d at 924. Mr. Soto conceded in state court that the statements were nontestimonial, as he identified them as "nontestimonial statements," and the thrust of his argument in his petition for review was that Crawford did not apply because the Roberts test remained intact for nontestimonial statements such as Mr. Gonzales' statements to Ms. Martinez. Resp. Ex. 5 (Petition for Review, p. 5; see also id. at 10 ("Gonzalez's statements to Vanessa [Martinez] do not appear to be testimonial within the meaning of Crawford or Davis"). Mr. Soto does not contend that the statements of Mr. Gonzales to Ms. Martinez were testimonial, nor would such an argument be well-founded because their boyfriend-to-girlfriend communications were just the sort of communications that courts have repeatedly held to be nontestimonial and therefore outside the protection of the Confrontation Clause. See, e.g., Desai v. Booker, 732 F.3d 628, 630 (6th Cir. 2013) ("the Confrontation Clause no longer applied to nontestimonial hearsay such as the friend-to-friend confession"); United States v. DeLeon, 678 F.3d 317, 321-24 (4th Cir. 2012), judgment vacated on other grounds, 133 S.Ct. 2850 (2013) (admission of evidence of stepson's statements describing his defendant-stepfather's disciplinary methods to social worker made several months before the stepson died did not implicate the Confrontation Clause because they were made for purposes of formulating a family treatment plan and were not testimonial); United States v. Berrios, 676 F.3d 118, 127-28 (3d Cir. 2012) (admission of evidence of surreptitiously recorded jailhouse conversations between codefendants did not violate the Confrontation Clause because they were not testimonial).

Mr. Soto argues that the Roberts test applies to his case, notwithstanding the decision in Crawford. He argues that "it is [an] open question as to whether the admission of non-testimonial statements violate the Confrontation Clause under the traditional test of reliability announced in" Roberts. Resp. Ex. 5, Petition for Review, p. 10. This argument fails because, as explained in Section "2" above, the Supreme Court and the Ninth Circuit have firmly said that the Roberts test no longer applies and that the Confrontation Clause does not apply to nontestimonial hearsay.

Mr. Soto also argues that the fact that Crawford did not overrule Lilly v. Virginia, 527 U.S. 116 (1999), supports his argument that the Roberts test survives because Lilly had applied the Roberts test for reliability and trustworthiness. See Resp. Ex. 5, Petition for Review, p. 11; see also Docket # 1 at 26-30 (legal argument in his federal habeas petition consists almost entirely of a lengthy quote from Lilly). Mr. Soto's reliance on Lilly does not help him because the evidence at issue in Lilly was a confession made during police interrogation, see Lilly, 527 U.S. at 120-21, and therefore was testimonial hearsay of just the sort that Crawford determined was covered by the Confrontation Clause. Crawford recognized that very point in its reference to Lilly, as Crawford noted that even where its recent cases (including Lilly) had followed the reasoning of Roberts, those cases made a distinction for testimonial hearsay, and testimonial hearsay required unavailability and prior cross-examination. See Crawford, 541 U.S. at 58 (Lilly "excluded testimonial statements that the defendant had had no opportunity to test by cross-examination"); see also Davis, 547 U.S. at 825. Thus, the fact that the Supreme Court did not overrule Lilly (which concerned testimonial hearsay) does not provide any support for the argument that the Roberts test survives or that the Confrontation Clause continues to apply to nontestimonial hearsay. Mr. Soto sees his case and Lilly as similar because both involved confessions by accomplices, but the critical difference in this post-Crawford time is that the confession in Mr. Soto's case was to a girlfriend (and nontestimonial) whereas the Lilly confession was during police interrogation (and, therefore, testimonial). See generally United States v. Smalls, 605 F.3d 765, 773 (10th Cir. 2010) (district court erred in applying Roberts test to accomplice's statement to confidential informant because it was nontestimonial; "Roberts was no longer good law when the district court made its decision in this case, rendering Lilly a dead letter and eviscerating not only the presumption of unreliability, but the entire foundation upon which the district court's order rested").

The admission of the nontestimonial hearsay statements from Mr. Gonzales to Ms. Martinez did not implicate, let alone violate, Mr. Soto's Confrontation Clause rights. He is not entitled to habeas relief on this claim.

B. Due Process Claim

Mr. Soto also argues that the admission of Mr. Gonzales' statements to Ms. Martinez violated his right to due process because the evidence was unreliable hearsay. See Docket # 1 at 8.

Neither the California Court of Appeal nor the California Supreme Court discussed Mr. Soto's due process claim. "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011) (one-sentence order denying habeas petition analyzed under §2254(d)); see also Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013) (order discussing state law claim but not federal claim rebuttably presumed to be rejection on the merits and therefore subject to § 2254(d)). Mr. Soto does not dispute that the state supreme court decided his claim on the merits.

The summary rejection of the due process claim by the California Supreme Court was neither contrary to nor an unreasonable application of clearly established United States Supreme Court authority. In addition, the state court's decision was not based on an unreasonable determination of the facts.

The Supreme Court has repeatedly held that federal habeas writ is unavailable for violations of state law or for alleged error in the interpretation or application of state law. See Swarthout v. Cooke, 562 U.S. 216, 220 (2011). Thus, to the extent Mr. Soto is urging that the California Evidence Code's hearsay rule was misapplied in state court, it would be a claim for a state law error for which federal habeas relief is not available.

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). The Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding that trial court's admission of irrelevant pornographic materials was "fundamentally unfair" under Ninth Circuit precedent but not contrary to, or an unreasonable application of, clearly established Federal law under § 2254(d)). Absent violation of a specific constitutional or statutory provision, the due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). Here, the admission of Mr. Gonzales' statement to Ms. Martinez which implicated himself along with Mr. Soto did not render the trial fundamentally unfair. Mr. Soto fails to demonstrate that admission of the statement violated state evidentiary rules; as the Court of Appeal noted, statement was admissible hearsay under Evid. Code § 1230 as a declaration against the declarant's personal interest which was imbued with reliability and trustworthiness. Given the state court's finding that the statement was sufficiently trustworthy so as to satisfy state evidentiary rules, admission of Gonzales' statement was not so arbitrary or prejudicial as to render the Mr. Soto's trial fundamentally unfair. Furthermore, even if admission of the statement violated state evidence rules and was so arbitrary as to violate due process, Petitioner is not entitled to habeas relief unless the evidence had a "`substantial and injurious effect on the verdict.' Dillard v. Roe, 244 F.3d 758, 767 n.7 (9th Cir. 2001) (citing Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). Given the strength of the evidence against Mr. Soto, no such effect can be found in the instant case.

Moreover, the Ninth Circuit has held (albeit in a different context) that, where a habeas petitioner challenges his conviction based on the allegedly erroneous admission of evidence, as long as there is some permissible inference that may be drawn, the introduction of such evidence does not violate due process. Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). "Evidence introduced by the prosecution will often raise more than one inference, some permissible, some not; we must rely on the jury to sort them out in light of the court's instructions. Only if there are no permissible inference they 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.' [Citation] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose." Jammal, 926 F.2d at 920 (footnote omitted). Here, there was a permissible inference that could be drawn from Gonzales' statement — that Soto was involved in the crime.

Accordingly, Mr. Soto is not entitled to relief on his due process claim.

C. A Certificate Of Appealability Will Not Issue

Mr. Soto has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and this is not a case in which "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is DENIED.

VI. CONCLUSION

The petition for writ of habeas corpus is DENIED on the merits. The Clerk shall close the file.

IT IS SO ORDERED.