ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

GEORGE H. WU, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on May 16, 2017. Respondent filed an Answer on July 10, 2017. Petitioner filed a Reply on August 30, 2017.

BACKGROUND

A jury found Petitioner guilty of: (1) assault with a firearm on Eric Kennon in violation of California Penal Code section 245(a)(2); (2) assault with a semiautomatic weapon on Eric Kennon in violation of California Penal Code section 245(b); (3) first degree burglary in violation of California Penal Code section 459; (4) felony child abuse on Eric Kennon, Jr. in violation of California Penal Code section 273a(a); (5) possession of a firearm by a felon in violation of California Penal Code section 29800(a)(1); and (6) possession of ammunition by a felon in violation of California Penal Code section 30305(a)(1) (Reporter's Transcript ["R.T."] 1811-14; Clerk's Transcript ["C.T."] 214-15, 218-21). The jury found true the allegations that Petitioner had personally used a handgun in the commission of the assaults, the child abuse and the burglary within the meaning of California Penal Code section 12022.5(a) and personally inflicted great bodily injury in the commission of the assault with a firearm and the burglary within the meaning of California Penal Code section 12022.7(a) (R.T. 1811-14; C.T. 214-15, 218, 221). The jury found Petitioner not guilty of assault with a firearm and assault on Eric Kennon, Jr. (R.T. 1812; C.T. 241-42). The jury deadlocked on a count of attempted murder (R.T. 1816; C.T. 244). The court declared a mistrial as to that count (id.).

The court found true the allegations that Petitioner had suffered two prior convictions within the meaning of California Penal Code section 667(a) for which Petitioner had served prison terms within the meaning of California Penal Code section 667.5(b), and which qualified as strikes under California's Three Strikes Law, California Penal Code sections 667(b) — (i) and 1170.12(a) — (d) (R.T. 2119; C.T. 275-76).1 Petitioner received a prison sentence of forty-two years to life (R.T. 2413-16; C.T. 284-87).

The Court of Appeal modified the judgment and ordered a recomputation of Petitioner's presentence credits, but otherwise affirmed the judgment (Respondent's Lodgment 6; see People v. Berry, 2016 WL 4437671 (Cal. App. Aug. 22, 2016). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgments 7-8).

SUMMARY OF TRIAL EVIDENCE

The Court has conducted an independent review of the Reporter's Transcript and has confirmed that the following summary of the evidence in People v. Berry, 2016 WL 4437671 (Cal. App. Aug. 22, 2016) is accurate. See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). The Court observes that, in Petitioner's petition for review filed in the California Supreme Court, Petitioner stated that the Court of Appeal's opinion "provided an adequate factual and procedural background" for purposes of the petition for review (see Respondent's Lodgment 7, p. 10).

(Respondent's Lodgment 6, pp. 2-4; People v. Berry, 2016 WL 4437671, at *1-2).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The trial court's exclusion of certain impeachment evidence allegedly constituted an abuse of discretion, violated Petitioner's right to present a defense and violated Petitioner's right to conduct effective cross-examination; and

3. Petitioner's counsel allegedly rendered ineffective assistance by failing to object to the admission of the 911 call as allegedly inadmissible hearsay.

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

In applying these standards, the Court ordinarily looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION2

I. The Exclusion of the Subject Impeachment Evidence Does Not Entitle Petitioner to Federal Habeas Relief.

A. Background

In the words of the Court of Appeal, "[t]he defense sought to show that Mr. Kennon was not credible and was the likely aggressor in the altercation with [Petitioner]" (Respondent's Lodgment 6, p. 5; see People v. Berry, 2016 WL 4437671, at *2) (original emphasis). To that end, the defense sought to introduce evidence to impeach Kennon's credibility and to show Kennon's purported propensity for "putting guns to peoples' heads" (see R.T. 305). The trial court excluded some of this evidence pursuant to its discretionary authority under California Evidence Code section 352. Petitioner challenges the trial court's evidentiary rulings excluding the following purported impeachment evidence: (1) evidence that, during a carjacking which resulted in a conviction, Kennon assertedly had put a toy gun to a child's head; (2) Kennon's alleged armed robbery of an Albertson's grocery store, which did not result in criminal proceedings against Kennon; and (3) facts underlying an alleged juvenile theft-related charge.

1. Carjacking Conviction

With respect to Kennon's carjacking conviction, Petitioner's counsel argued that the underlying facts showed that Kennon had put a fake firearm to the head of an 11-year-old girl sitting in a car (R.T. 305). Counsel said these alleged facts assertedly showed Kennon's purported "M.O." of putting guns to peoples' heads, and counsel added "should my client testify he would testify that Mr. Kennon put a gun to his head as he entered the room" (R.T. 305).3 The court allowed the defense to impeach Kennon with the fact of the carjacking conviction and to ask Kennon whether he had used a "replica" gun during the carjacking, but excluded any evidence of other facts underlying the conviction (R.T. 307-08). On cross-examination, Kennon admitted pleading guilty to the carjacking and to using a replica or toy "paint ball gun" in the commission of that offense (R.T. 652-63).

2. Uncharged Alleged Robbery

Petitioner's counsel also sought to present evidence concerning Kennon's alleged involvement in a robbery of an Albertson's (R.T. 329-30). The prosecutor told the court that Kennon had not been arrested and that no charge had ever been filed because the witness could not identify the masked robber (R.T. 327-29). According to the prosecutor, the video evidence was unhelpful (R.T. 335). Petitioner's counsel responded that there were two witnesses who assertedly suspected Kennon was the robber and that fingerprint evidence purportedly linked Kennon to the crime (R.T. 330-31). The prosecutor said that Kennon had worked at the store "so his prints would be there," to which Petitioner's counsel responded that the incident allegedly had occurred a couple of months after Petitioner had been fired from employment at the store (R.T. 331). Petitioner's counsel later claimed that, while the male robbery witness had not actually seen the robber's face, the victim had worked with Kennon and believed Kennon was the robber based on the robber's "unusual gait" (R.T. 342). The court commented that it was a "big leap to go from the fact that [Kennon] maybe robbed an Albertson's to he's lying about who shot him in the stomach" (R.T. 333). The court declined to decide the matter at that time (R.T. 333, 336, 345). However, the court commented: ". . . what the court's concerned about is here we are sort of reverse prosecuting this victim for a [robbery] that the people declined to prosecute him for, putting all this before the jury and they're not gonna know what to [do] with it. It's extremely confusing to them." (R.T. 342).

The following day, the court said that it had examined the statement prepared by the investigator of the robbery, which allegedly recorded that the witness had not seen the robber's face and had not heard the robber speak but that the robber's "body language" and gestures purportedly reminded the witness of Kennon (R.T. 601-02). The trial court excluded the evidence, observing that its probative value was "somewhat diminished" because "we are not sure it's him [Kennon]" (R.T. 604). The court said the evidence would confuse jurors, who would not know what to do with the evidence and would wonder "why we are talking about a robbery when this case is about an attempted murder" (R.T. 605). The court deemed the "diminished" probative value of the proposed evidence to be outweighed by its confusing and prejudicial effect (R.T. 605).

Later, Petitioner's counsel told the court that counsel had obtained additional information and wished to "revisit the issue" (R.T. 927). Counsel said she had located the Albertson's store manager, who assertedly could identify Petitioner from a video of the incident (R.T. 927). Counsel also said she had obtained fingerprint evidence supposedly showing Petitioner's fingerprints at the location (R.T. 927-28). Applying California Evidence Code section 352, the court ruled that the probative value of this supposed evidence did not outweigh the confusion it would create for the jury, adding that other evidence had been presented to impeach Kennon (R.T. 981). Petitioner's counsel argued that the video purportedly showed Kennon with a gun pointed at the heads of a man and a woman, and argued the evidence showed Kennon's "propensity for violence" (R.T. 981, 985). The court said it would stand by its previous ruling, declining to hold a "mini-trial" and reiterating that the jury would not know what to do with the evidence (R.T. 983). The court observed that the defense appeared to be attempting to "back-door[]" a defense of self-defense (R.T. 983). In response to the argument of Petitioner's counsel that the evidence purportedly showed Kennon's "propensity for violence," the court stated "I think you got enough when you impeached him as it relates to that" (R.T. 985).

3. Alleged Juvenile Theft-Related Offense

The court also excluded evidence underlying an approximately thirteen-year-old juvenile charge4 arising out of the theft of a woman's purse and car (R.T. 336-37, 606). The court deemed this evidence too remote, particularly in light of the other impeachment evidence allowed (id.).

B. Court of Appeal's Decision

The Court of Appeal ruled that, under California Evidence Code section 352, the trial court reasonably could have concluded that the presentation of additional evidence concerning the carjacking would add little probative value in light of other impeachment evidence and that the proposed evidence was potentially distracting (Respondent's Lodgment 6, p. 8; see People v. Berry, 2016 WL 4437671, at *4). The Court of Appeal further ruled that proving the circumstances of the Albertson's robbery and Kennon's alleged connection thereto would have consumed significant time and that the probative value of this evidence was "undercut by the absence of conviction" (Respondent's Lodgment 6, p. 8; see People v. Berry, 2016 WL 4437671, at *4). The Court of Appeal reasoned that the jury would have been confused by attempts to try Kennon for a crime unrelated to the shooting (Respondent's Lodgment 6, p. 8; see People v. Berry, 2016 WL 4437671, at *4). The Court of Appeal further reasoned that evidence Kennon may have used a gun on a prior occasion did not raise an inference that Kennon was lying about who shot him, an inference that Kennon had been the one with the gun or an inference that Petitioner supposedly acted in self-defense (id.). Finally, the Court of Appeal ruled that the trial court did not err in excluding evidence of the facts underlying the juvenile charge (Respondent's Lodgment 6, p. 8; see People v. Berry, 2016 WL 4437671, at *4). The Court of Appeal reasoned that the probative value of the juvenile charge was "minimal" in light of its remoteness in time and the lack of any showing that the juvenile petition had been sustained (id.). The Court of Appeal further reasoned that evidence of the juvenile charge would have required an undue consumption of time and would have confused the issues.

C. Analysis

The trial court excluded the above-described evidence pursuant to California Evidence Code section 352. Section 352 confers on a trial court the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Petitioner's claim that the state courts supposedly erred in applying section 352 is not cognizable in this federal habeas proceeding. The correctness of a state court's evidentiary ruling presenting only an issue of state law is not reviewable on federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

The Petition also alleges constitutional error in the exclusion of evidence under California Evidence Code section 352. However, the United States Supreme Court has not decided whether exclusion of "evidence of specific instances of a witness' conduct to impeach the witness' credibility" violates the constitution. See Nevada v. Jackson, 569 U.S. 505, 133 S.Ct. 1990, 1993-94 (2013) (recognizing absence of Supreme Court decision on the issue; observing that such evidence may "confuse the jury . . . and unfairly prolong the trial"). The Supreme Court also has not decided whether or when an evidentiary rule that requires a trial court to "balance factors and exercise its discretion" might violate a defendant's due process right to present a defense. See Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009). The Ninth Circuit recently recognized the continuing absence of clearly established United States Supreme Court law on this issue. See Robertson v. Pichon, 849 F.3d 1173, 1189 (9th Cir. 2017), cert. denied, 2017 WL 3395721 (U.S. Oct. 2, 2017).

Accordingly, federal habeas relief is unavailable because there exists no clearly established Supreme Court law supporting Petitioner's claim. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("Because our cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law") (citation, internal brackets and quotations omitted); Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court [on the issue presented], it cannot be said that the state court "unreasonabl[y] applied clearly established Federal law.") (internal brackets and citation omitted).

In any event, the Court of Appeal's rejection of these claims of alleged evidentiary error was not unreasonable. In limited circumstances, the exclusion of crucial evidence may violate the Constitution. See Holmes v. South Carolina, 547 U.S. 319, 319 (2006) ("[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") (citations and internal quotations omitted); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("Chambers"); Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004), cert. denied, 544 U.S. 919 (2005) ("The Supreme Court has made it clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense.") (citations and internal quotations omitted).

However, "Chambers . . . does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state . . . rule excludes favorable evidence." United States v. Scheffer, 523 U.S. 303, 316 (1998). "While the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes v. South Carolina, 547 U.S. at 320 (citations omitted); see also Moses v. Payne, 555 F.3d at 758. Thus, "the Constitution permits judges to exclude evidence that is repetitive . . ., only marginally relevant or poses an undue risk of harassment, prejudice or confusion of the issues." Holmes v. South Carolina, 547 U.S. at 326-27 (citations, internal brackets and quotations omitted).

With respect to the carjacking, the trial court admitted the evidence that Petitioner used a replica gun to commit the carjacking. The Court of Appeal reasonably determined that the trial court properly could have concluded that additional evidence concerning the facts underlying the carjacking had the potential to distract the jury.

With respect to evidence of the Albertson's robbery, the Court of Appeal reasonably concluded that the absence of conviction undercut the probative value of that evidence and that the presentation of evidence connecting Kennon to the robbery would have consumed significant time. The facts concerning the robbery were in dispute, in particular the facts relating to the identification of Kennon as the robber. It was not unreasonable for the state courts to conclude that holding the equivalent of a "mini-trial" on an unrelated crime would confuse the jury.

Finally, the Court of Appeal did not act unreasonably in rejecting Petitioner's challenge to the exclusion of the facts underlying the alleged juvenile theft-related offense. Any such facts had "minimal value" due to remoteness and the lack of a court order sustaining a petition. See Holmes v. South Carolina, 547 U.S. at 326-27.

For all of the foregoing reasons, Petitioner has not shown the Court of Appeal's rejection of his challenge to the exclusion of evidence was contrary to, or an unreasonable application of, any clearly established federal law as determined by the United States Supreme Court. See Harrington v. Richter, 562 U.S. 86, 101 (2011); 28 U.S.C. § 2254(d).

Moreover, any error in excluding this evidence was harmless under the harmless error standard for federal habeas corpus cases set forth in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) ("Brecht") (forbidding a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence" on the outcome of the case). As previously discussed, the defense presented evidence of Kennon's carjacking conviction and his use of a replica gun. The defense also presented other significant impeachment evidence. Kennon admitted being a "convicted felon" with "one strike" (R.T. 667-68). Kennon denied stealing over $500 from an Albertson's grocery store, but admitted he had been fired from Albertson's the day after having a verbal argument with the manager (R.T. 653-57). Kennon admitted that the prosecutor had taken Kennon to lunch, given Kennon snacks and a gift card for food and paid Kennon's cell phone bill, and also admitted that the district attorney's office had made housing arrangements for Kennon (R.T. 657-58, 664, 651-52). Kennon admitted stealing food from a grocery store (R.T. 650-51). Kennon admitted having multiple physical altercations with Nichols (R.T. 718-20).

On cross-examination, Nichols testified regarding a physical altercation he had with Kennon during which Kennon allegedly bit Nichols on the face and a separate incident in which Kennon assertedly inflicted facial injuries on Nichols (R.T. 741-43). The Albertson's manager testified that the manager had fired Kennon for the theft of approximately $486 in merchandise, but denied any physical or verbal altercation with Kennon (R.T. 1254-55). The parties stipulated that Kennon had told the prosecutor: "I got in an argument with the [Albertson's] manager. The argument led to a physical altercation with the manager. That's why I was fired" (R.T. 1230-31). Evidence that Kennon was a convicted felon who had committed a carjacking with a gun, had been fired for fighting with his manager and/or stealing from his employer, had bit and hit his teenaged stepson in the face and had accepted financial benefits from the prosecution provided substantial impeachment evidence. In these circumstances, the exclusion of evidence concerning the additional alleged facts underlying the carjacking, the apparently inconclusive evidence that Kennon supposedly had committed a robbery and the remote evidence of a juvenile theft-related offense cannot have had any substantial and injurious effect on the verdict within the meaning of Brecht.

Styled as a Confrontation Clause challenge to an alleged restriction on cross-examination, Petitioner's claim fares no better. The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent the defense might wish. Kentucky v. Stincer, 482 U.S. 730, 739 (1087); Fenenbock v. Dir. of Corrections for Calif., 692 F.3d 910, 919 (9th Cir. 2012). "The Supreme Court consistently has held that a Confrontation Clause violation occurs when a trial judge prohibits any inquiry into why a witness may be biased." Hayes v. Ayers, 632 F.3d 500, 518 (9th Cir. 2011) (citation omitted; original emphasis). However, when some inquiry is permitted, "trial judges retain wide latitude . . . to impose reasonable limits on such cross-examination." Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant"). "No Confrontation Clause violation occurs `as long as the jury receives sufficient information to appraise the biases and motivations of the witness.'" Hayes v. Ayers, 632 F.3d at 518 (citations omitted). Here, in light of the significant impeachment evidence described above, the exclusion of additional inquiry on cross-examination of Kennon did not deny the jury sufficient information to assess Kennon's credibility, and hence did not violate the Confrontation Clause. In any event, the exclusion of additional inquiry was harmless under Brecht.

II. Petitioner's Claim of Alleged Ineffective Assistance of Trial Counsel Does Not Merit Federal Habeas Relief.

A. Background

The court admitted a tape of the 911 call to police, over a defense objection that the evidence assertedly lacked foundation because Nichols denied having made the call (R.T. 738). Petitioner contends counsel ineffectively failed to object to the admission of the call on a different ground, i.e., that the Nichols' statements assertedly did not fall within the hearsay exception for spontaneous utterances set forth in California Penal Code section 1240. Section 1240 provides that "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." Under this section, "a hearsay statement, even if otherwise spontaneous, is admissible only if it relates to an event the declarant perceived personally." People v. Phillips, 22 Cal.4th 226, 235, 92 Cal.Rptr.2d 58, 991 P.2d 145 (2000). Petitioner contends Nichols was not a percipient witness to the shooting.5 The Court of Appeal rejected this claim, citing People v. Blacksher, 52 Cal.4th 769, 810, 130 Cal.Rptr.3d 191, 259 P.3d 370 (2011) ("Blacksher"). The Court of Appeal reasoned that any objection would have been overruled because the evidence showed Nichols was a percipient witness within the meaning of section 1240, and hence Petitioner failed to show prejudice from any failure to object (Respondent's Lodgment (Respondent's Lodgment 6, p 11; see People v. Berry, 2016 WL 4437671, at *5-6).

B. Governing Legal Standards

To establish ineffective assistance of counsel, a petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. at 104 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).

A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 562 U.S. at 101. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 105. Thus, "[w]hen the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is `doubly deferential,' [citation], because counsel is `strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'" Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (citations and internal quotations omitted). "In such circumstances, federal courts are to afford `both the state court and the defense attorney the benefit of the doubt.'" Id. (citation omitted).

"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "`reasonably likely'" that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id. at 112.

A court may reject a Strickland claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).

C. Analysis

California Evidence Code section 1240 does not require that the declarant must have "witnessed" the event purportedly described. See Blacksher, 52 Cal. 4th at 810. Rather, all that is required is that the declarant perceived "an act, condition or event." Id. In Blacksher, the defendant was accused of shooting his sister and nephew to death at the home of the defendant's mother, Eva. Eva told an officer responding to a 911 call that the defendant had argued with his sister and had shot the victims. Id. at 809. However, Eva said she did not see the defendant carrying a gun. Id. Eva said: (1) the defendant had come to Eva's room to speak to her briefly and had left the room; (2) Eva heard the defendant arguing with his sister; (3) Eva heard her daughter's exclamation, followed by a gunshot; and (4) Eva emerged from her room to see her daughter fall bleeding. Id. at 809-11.

The defendant in Blacksher argued that Eva's statements were inadmissible hearsay because there assertedly was insufficient foundation she had "witnessed" the shootings. Id. at 810. The California Supreme Court rejected this argument, reasoning that "[t]here are many ways someone can acquire the personal knowledge required to support a conclusion that the person perceived an event." Id. at 811. The California Supreme Court stated that Eva's conclusion that the defendant had shot the victims appeared sincere and logical, and that Eva's perceptions and observations "were clearly relevant to the circumstances of the shooting" and constituted spontaneous statements within the meaning of section 1240. Id. at 811. "At best, the issue of whether Eva actually saw defendant fire the shots went to the weight of her statements, not their admissibility." Id. (citation omitted).

In the present case, Nichols denied making the 911 call (and indeed denied even being present at the time of the shootings). However, Detective Ponce testified that Nichols had told Ponce: (1) Nichols was in the living room when he saw Petitioner walk in armed with a handgun and go upstairs to the bedroom areas; (2) Nichols heard Petitioner and Kennon arguing and then heard tussling or wrestling sounds; (3) Nichols heard two gunshots; (4) Petitioner then ran downstairs and out of the house; (5) Nichols ran outside and around the building, then returned to the house; (6) Nichols saw Kennon walking slowly down the stairs and saw blood near Kennon's abdomen and on his hands; and (7) Nichols called 911 (R.T. 748-49, 759-60). Based on these asserted perceptions, Nichols' alleged statement that Petitioner had shot Kennon appeared logical and sincere. Although Petitioner contends the tape of the 911 call supposedly showed that Nichols' statements were based on the statements of other people whose voices allegedly were heard during the call (see Reply, pp. 8-9), the Court of Appeals ruled that nothing in the record showed that other voices prompted Nichols to identify Petitioner as the person who shot Kennon (see Respondent's Lodgment 6, p. 11; People v. Berry, 2016 WL 4437671, at *6). This ruling was reasonable, as this Court's review of the record similarly shows no such prompting (see Supplemental Reporter's Transcript 1-10).6

Accordingly, the Court of Appeal reasonably determined that, under Blacksher, any objection to the admission of the 911 call as allegedly not qualifying for the section 1240 would have been overruled. Under AEDPA, this Court must defer to the Court of Appeal's reasonable conclusion that counsel's failure to object on the ground proffered by Petitioner did not prejudice Petitioner. See 28 U.S.C. § 2254(d).

To the extent Petitioner contends counsel should have objected to the introduction of the 911 call under Crawford v. Washington, 541 U.S. 36 (2004) ("Crawford") (see Petition, Attachment, p. 19; Reply, p. 13), any such claim lacks merit. Even assuming arguendo Nichols' statements on the 911 call were testimonial,7 a Crawford objection would not have succeeded because Nichols testified at trial. "[W]hen 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; see also California v. Green, 399 U.S. 149, 158 (1970) (defendant's confrontation rights not violated by admitting a declarant's out-of-court statement "as long as the declarant is testifying as a witness and subject to full and effective cross examination").

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.