YVONNE GONZALEZ ROGERS, District Judge.
Petitioner Carlos A. Espinoza, a state prisoner, brings the instant pro se habeas action under 28 U.S.C. § 2254 to challenge his 2012 conviction and sentence. A Monterey County jury convicted Petitioner, who was 17 years old at the time he committed the offenses, of first degree murder, attempted premeditated and deliberate murder, and active participation in a criminal street gang. The jury also found that Petitioner committed the murder and attempted murder for the benefit of a criminal street gang, and that in committing the murder and attempted murder, he personally used and intentionally discharged a firearm and proximately caused great bodily injury or death. The petition raises the following three claims: (1) the gang crime and gang enhancements must be reversed because the gang expert's opinion testimony was based in part on testimonial hearsay, in violation of Petitioner's Sixth Amendment right to confrontation; (2) an ineffective assistance of counsel ("IAC") claim based on his trial counsel's failure to object to the gang expert's opinion testimony on confrontation grounds; and (3) the judgment must be reversed due to jury misconduct because one juror visited the scene and told the other jurors what he observed. Dkt. 1 at 7-27.
Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the petition for the reasons set forth below.
The California Court of Appeal summarized the facts of Petitioner's offense as follows. This summary is presumed correct. See Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir. 2002); 28 U.S.C. § 2254(e)(1).
People v. Espinoza, No. H038508, 2016 WL 7105924, *1-5 (Cal. Ct. App. Dec. 6, 2016) (brackets added).
As mentioned above, in April 2012, a Monterey County jury convicted Petitioner of all three charged offenses. 2 CT 572-78; Espinoza, 2016 WL 7105924, *5. The jury also found true all of the special allegations. Id. The trial court sentenced Petitioner to an aggregate prison term of 85 years to life. 3 CT 708-709; Espinoza, 2016 WL 7105924, *5.
The present case came before the California Court of Appeal on two separate instances. In the first instance, Petitioner originally appealed on three claims, including the confrontation clause and juror misconduct claims as well as a sentencing claim, in which he claimed "that remand for resentencing [was] required because the sentence of 85 years to life constitute[d] cruel and unusual punishment in light of the fact he was a juvenile at the time he committed the offense." Espinoza, 2016 WL 7105924, *1. The parties petitioned the California Supreme Court for review after the state appellate court arrived at an opinion (issued on January 31, 2014
In the interim, on December 8, 2014, Petitioner filed his first federal habeas petition. See Case No. C 14-5376 YGR (PR). The Court dismissed his first petition without prejudice on abstention grounds pursuant to Younger v. Harris, 401 U.S. 37 (1971). See Dkt. 8 in Case No. 14-5376 YGR (PR).
Thereafter, the present case came before the state appellate court for the second time. On December 6, 2016, after obtaining supplemental briefing from the parties, the state appellate court reviewed the present case. Espinoza, 2016 WL 7105924, *1. The court subsequently vacated its prior opinion as to the sentencing claim, and affirmed Petitioner's conviction in an unpublished opinion, "finding that Sanchez did not require reversal, but that a limited remand was required pursuant to the Franklin decision to give Petitioner the `opportunity to make a record of information relevant to his eventual youth offender parole hearing.'" Espinoza, 2016 WL 7105924, *1, *12-14.
The California Supreme Court denied Petitioner's subsequent petition for review on March 1, 2017. Resp't Exs. 14, 15.
On April 18, 2017, Petitioner filed the instant federal petition, in which he raises the three aforementioned claims. Dkt. 1. On August 1, 2017, the Court issued an Order to Show Cause. Dkt. 7. Respondent has filed an Answer. Dkt. 16. Petitioner has filed a Traverse. Dkt. 20.
A federal court may entertain a habeas petition from a state prisoner "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). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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). The first prong applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
To determine whether a state court ruling was "contrary to" or involved an "unreasonable application" of federal law under subsection (d)(1), the Court must first identify the "clearly established Federal law," if any, that governs the sufficiency of the claims on habeas review. "Clearly established" federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is "contrary to" clearly established Supreme Court precedent if it "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 405-406. "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.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." See Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
On federal habeas review, AEDPA "imposes a highly deferential standard for evaluating state-court rulings" and "demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). In applying the above standards on habeas review, the Court reviews the "last reasoned decision" by the state court. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018); Cannedy v. Adams, 706 F.3d 1148, 1156 (9th Cir.), amended, 733 F.3d 794 (9th Cir. 2013).
As explained below, Petitioner did not contemporaneously object to the gang expert's opinion testimony on Sixth Amendment grounds. Espinoza, 2016 WL 7105924, *6. However, in its unpublished disposition issued on December 6, 2016, the state appellate court "assume[d] that the confrontation clause argument was not forfeited and address[ed] the merits. . . ." Id.; see also id., *6-8. The court also addressed the merits of the juror misconduct claim in the same opinion. Id., *9-12. Therefore, the last reasoned decision as to Petitioner's confrontation clause and juror misconduct claims is the California Court of Appeal's unpublished disposition issued on December 6, 2016. See Espinoza, 2016 WL 7105924, *5-12
Meanwhile, no reasoned decision exists on Petitioner's IAC claim, which was summarily denied by the state appellate court on January 31, 2014. Id., *14 at note 2. The California Supreme Court denied the petition for review of that summary denial on May 14, 2014. Id. A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011).
"Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which [a court] can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Even where no reasoned decision is available, the habeas petitioner still bears the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington v. Richter, 562 U.S. 86, 98 (2011). The federal court is obligated to review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Id. This 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 [the Supreme] Court." Id. at 102.
A federal habeas court may grant a writ if it concludes a 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 the State court proceeding." 28 U.S.C. § 2254(d)(2). An unreasonable determination of the facts occurs where a state court fails to consider and weigh highly probative, relevant evidence, central to a petitioner's claim, that was properly presented and made part of the state court record. Taylor v. Maddox, 366 F.3d 992, 1005 (9th Cir. 2004), abrogated on other grounds, Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). A district court must presume correct any determination of a factual issue made by a state court unless a petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The presumption of correctness applies to express and implied findings of fact by both trial and appellate courts. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); see Williams v. Rhoades, 354 F.3d 1101, 1108 (9th Cir. 2004) ("On habeas review, state appellate court findings—including those that interpret unclear or ambiguous trial court ruling—are entitled to the same presumption of correctness that we afford trial court findings.").
Section 2254(d)(2) applies to an intrinsic review of a state court's fact-finding process, or situations in which the petitioner challenges a state court's fact-findings based entirely on the state court record, whereas § 2254(e)(1) applies to challenges based on extrinsic evidence, or evidence presented for the first time in federal court. See Taylor, 366 F.3d at 999-1000. In Taylor, the Ninth Circuit established a two-part analysis under §§ 2254(d)(2) and 2254(e)(1). Id. First, federal courts must undertake an "intrinsic review" of a state court's fact-finding process under the "unreasonable determination" clause of § 2254(d)(2). Id. at 1000. The intrinsic review requires federal courts to examine the state court's fact-finding process, not its findings. Id. Once a state court's fact-finding process survives this intrinsic review, the second part of the analysis begins by addressing the state court finding of a presumption of correctness under § 2254(e)(1). Id. According to the AEDPA, this presumption means that the state court's fact-finding may be overturned based on new evidence presented by a petitioner for the first time in federal court only if such new evidence amounts to clear and convincing proof a state court finding is in error. See 28 U.S.C. § 2254(e)(1). "Significantly, the presumption of correctness and the clear-and-convincing standard of proof only come into play once the state court's fact-findings survive any intrinsic challenge; they do not apply to a challenge that is governed by the deference implicit in the `unreasonable determination' standard of section 2254(d)(2)." Taylor, 366 F.3d at 1000.
If constitutional error is found, habeas relief is warranted only if the error had a "substantial and injurious effect or influence in determining the jury's verdict." Penry v. Johnson, 532 U.S. 782, 795-96 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
Petitioner alleges his federal constitutional right to confrontation, pursuant to Crawford v. Washington, 541 U.S. 36 (2004), was violated by the trial court's admission of testimony of the gang expert, Officer Zuniga. Dkt. 1 at 7-13. Specifically, Petitioner alleges that the admission of Officer Zuniga's opinion testimony violated his Sixth Amendment right to confrontation because it was based on testimonial hearsay. Id. at 8-13. Petitioner refers to the following three areas of Officer Zuniga's expert opinion testimony about: (1) establishing a pattern of criminal gang activity by Sureño gang members; (2) the primary activities of Sureño gang members; and (3) Petitioner's statements and membership in the Sureño gang. Id. at 9-13. According to Petitioner, Officer Zuniga's testimony about these topics was based on "police investigations and interviews conducted by others who did not testify." Id. at 8. Petitioner further contends that the admission of the testimony was prejudicial as to count 3 (active participation in a criminal street gang) and the gang enhancements found true as to counts 1 and 2. Id. at 7.
Related to the aforementioned claim is Petitioner's IAC claim, in which he alleges that his trial counsel was ineffective for failing to object to Officer Zuniga's testimony. Id. at 23-27.
As mentioned above, the state appellate court assumed that the confrontation clause argument was not forfeited and addressed the claim on the merits. Espinoza, 2016 WL 7105924, *5. The court outlined the applicable federal law, including the relevant United States Supreme Court cases, Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 547 U.S. 813 (2006), (which this Court will elaborate upon below), and applicable state law, as follows:
Id. at *6-7. The state appellate court then rejected the claim on the merits as follows:
Espinoza, 2016 WL 7105924, *7-8 (footnote omitted).
The Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to "be confronted with the witnesses against him." U.S. Const. amend. VI. The federal confrontation right applies to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965).
The Confrontation Clause applies to all out-of-court testimonial statements offered for the truth of the matter asserted, i.e., "testimonial hearsay." See Crawford v. Washington, 541 U.S. 36, 51 (2004). "Testimony . . . is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. (internal quotation and citation omitted); see id. ("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."). The Confrontation Clause applies not only to in-court testimony but also to out-of-court statements introduced at trial, regardless of the admissibility of the statements under state laws of evidence. Id. at 50-51.
Out-of-court statements by witnesses that are testimonial hearsay are barred under the Confrontation Clause unless (1) the witnesses are unavailable, and (2) the defendants had a prior opportunity to cross-examine the witnesses. Id. at 59. The reliability of such statements, for Confrontation Clause purposes, depends solely upon these two factors. Id. at 68. Thus, the Court's prior holding in Ohio v. Roberts, 448 U.S. 56 (1980), that such statements may be admitted so long as the witness is unavailable and the statements have adequate "indicia of reliability," i.e., fall within a "firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness," is overruled by Crawford. See id. Hearsay that is not testimonial, "while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis v. Washington, 547 U.S. 813, 821 (2006).
The ultimate goal of the Confrontation Clause is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. Crawford, 541 U.S. at 61. An expert may render an opinion and explain the facts on which that opinion is based without violating the Confrontation Clause. Williams v. Illinois, 567 U.S. 50, 58 (2012) ("When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause."); Hill v. Virga, 588 Fed. App'x 723, 724 (9th Cir. 2014) (Supreme Court has not clearly established that admission of hearsay statements relied on by expert violates Confrontation Clause). Moreover, when expert testimony relies on out-of-court statements by others that Crawford would bar if offered directly, "`[t]he question is whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay. As long as he is applying his training and experience to the sources before him and reaching an independent judgment, there will typically be no Crawford problem.'" United States v. Gomez, 725 F.3d 1121, 1129-30 (9th Cir. 2013) (quoting United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009)).
Claims relating to the Confrontation Clause are subject to harmless error analysis. United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004) (post-Crawford case); see also United States v. Allen, 425 F.3d 1231, 1235 (9th Cir. 2005). For purposes of federal habeas corpus review, the standard applicable to violations of the Confrontation Clause is whether the inadmissible evidence had an actual and prejudicial effect upon the jury. See Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir. 2002) (citing Brecht).
As further explained below, the Court finds that Petitioner has failed to show that the state appellate court's rejection of Petitioner's confrontation clause claim was an unreasonable application of Supreme Court authority.
As mentioned above, Petitioner claims that Officer Zuniga relied upon "testimonial hearsay" to establish: (1) the gang's pattern of criminal activity/predicate offenses; (2) the gang's primary activities; and (3) Petitioner's gang membership. Dkt. 1 at 10-11. Specifically, Petitioner's contends that Officer Zuniga's testimony (relating to the aforementioned three areas) was inadmissible because he based it on police records and "field interviews with suspected gang members," some of which he did not personally conduct. Id. at 10-13. The state appellate court noted Officer Zuniga did not specify the basis of his expert testimony. Espinoza, 2016 WL 7105924, *7. However, the state appellate court also noted that Officer Zuniga stated that his opinions relied upon his work experience and informal connections. Id. at *7. See also, e.g., 12 RT 1410-1411. Moreover, the state appellate court did not presume Officer Zuniga's testimony related case-specific facts or testimonial hearsay, reasoning that "reviewing courts should not presume the witness is relating hearsay." Id. at *8 (citing Denham v. Superior Court, 2 Cal.3d 557, 564 (1970)). However, even if Officer Zuniga did rely on hearsay testimony, no clearly established Supreme Court authority exists to show that the admission of hearsay statements relied on by an expert violates the Confrontation Clause. See Williams, 567 U.S. at 57-58; Hill, 588 Fed. App'x at 724. Moreover, as stated above, the Supreme Court held in Williams that an expert may render an opinion and explain the facts on which that opinion is based without violating the Confrontation Clause. Williams, 567 U.S. at 58. The state appellate court was also reasonable in determining that even if Office Zuniga's testimony was inadmissible, the error was harmless as to each of the three areas outlined above, as follows. See Espinoza, 2016 WL 7105924, *8.
First, the state appellate court determined that the official court records were sufficient to establish a "pattern of gang activity" because a "pattern" is shown when members of a gang independently or collectively commit at least two specific crimes either on separate occasions or with two or more persons. Id. (citing People v. Gardeley, 14 Cal.4th 605, 623 (1996)). Moreover, the state appellate court correctly determined that the court records "were admissible as official records . . . and hence reliance on them did not give rise to a confrontation clause violation." Id. at *7 (citing Crawford, 541 U.S. at 51-52, 68). Petitioner does not contest that these court records were testimonial in nature. See Dkt. 20-1 at 3-5. Rather, as mentioned, Petitioner contends that Officer Zuniga impermissibly relied on "testimonial hearsay" in the form of police records. Id. The state appellate court reasonably determined that Officer Zuniga did not relate testimonial hearsay, because he was allowed to consider hearsay in providing an opinion as an expert witness. Espinoza, 2016 WL 7105924, *8. The record shows that Officer Zuniga appropriately related to the police record because he testified on cases that predated Petitioner's case and did not involve Petitioner nor the coparticipants to the present matter. 11 RT 1305-1311. Moreover, the state appellate court reasonably found that even if Officer Zuniga's reliance on the police record was in error, the error was harmless given that the jury could consider the coparticipants' convictions, Officer Zuniga's experience with gangs, and the record to arrive at the same conclusion. Espinoza, 2016 WL 7105924, *8.
Second, the state appellate court reasonably determined that Officer Zuniga's testimony on the Sureño's "primary activities" was admissible because it was "clearly based on [his] gang training and experience." See id. Petitioner solely contends that Officer Zuniga's statement could only be based on the police record. Dkt. 20-1 at 5. However, as the state appellate court also reasonably determined, Officer Zuniga's "gang training and experience" have established a general knowledge and expertise of the Sureño and Norteño gangs, which cannot be barred on hearsay grounds. Espinoza, 2016 WL 7105924, *8 (citing Sanchez, 63 Cal. 4th at 670); see also id. at 675 ("[E]xperts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc."). Petitioner does not contend nor provide evidence contesting Officer Zuniga's expertise. See Dkt. 20-1 at 4-5. The state appellate court determined that even if Officer Zuniga's testimony was improperly admitted, Petitioner's claim would still fail on the merits because Officer Zuniga's testimony on the gang's primary activities based on police records did not have an actual, prejudicial effect upon the jury. See Hernandez, 282 F.3d at 1144 (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). As the state appellate court reasonably concluded, the testimonies of Sureño gang members were sufficient such that inclusion of Officer Zuniga's testimony would not have impacted the jury's verdict. Espinoza, 2016 WL 7105924, *8. Moreover, the state appellate court determined that the present case could be distinguished from Sanchez. Id. As the state appellate court noted, Officer Zuniga's testimony supplemented the coparticipants' testimonies in the present matter, whereas in Sanchez, the expert witness's testimonial hearsay was the primary evidence of the defendant's gang involvement. Id. (citing Sanchez, 63 Cal. 4th at 699). Co-participant Julio Montoya testified that as a member of the gang, he has assisted Sureño members in shootings, resulting in attempts to commit homicide or assault with a deadly weapon, thereby establishing a "pattern of criminal gang activity." 9 RT 917-918; see Cal. Penal Code Ann. § 186.22 ("`pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the following offenses"). Coparticipant Juan Nunez testified that crimes such as retaliatory shootings and homicides were expected of Sureño gang members, establishing "primary activities" of the Sureño gang. 11 RT 1070-1072, 1080. Finally, coparticipant Montoya testified that Petitioner had stated he was "involved" and "doing a lot of things" for the Sureño gang, that Petitioner was a member of Vagos, a Sureño gang. 9 RT 892; 11 RT 1054.
Third, Petitioner claims that Officer Zuniga's testimony about Petitioner's police contacts and statements about his membership in the Sureño gang improperly related testimonial hearsay. Dkt. 1 at 12-13. The state appellate court noted that this challenged testimony was introduced to show that Petitioner was actively participating in a criminal street gang and that he committed the murder and attempted murder "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Espinoza, 2016 WL 7105924, *8. The state appellate court assumed that even if it was improper to admit such testimony about Petitioner's prior police contacts and statements regarding his membership in the Sureño gang, the error was harmless beyond a reasonable doubt. Id. (citing Chapman, 386 U.S. at 24). The court determined that the challenged testimony
Id.; see, e.g., 9 RT 892; 9 RT 897-897; 9 RT 930; 11 RT 1081-1082. Moreover, Poncho, the surviving victim, also provided evidence of Petitioner's association with Sureño gang members. Espinoza, 2016 WL 7105924, *8. The state appellate court was reasonable to conclude that, in light of the evidence presented through Petitioner's coparticipants and Poncho, no reasonable jury would have failed to convict Petitioner of the substantive gang offense or found the gang allegations untrue if Officer Zuniga's challenged testimony had been excluded. See id.
Based on the above, the Court finds that the state appellate court's rejection of Petitioner's confrontation clause claim stemming from the improper admission of "testimonial hearsay" was based on a reasonable application of clearly-established federal law under section 2254(d)(1). Accordingly, this claim is DENIED.
Because Petitioner's confrontation clause claim relating to the aforementioned inadmissible testimonial hearsay fails, the state court's summary denial of any related IAC claim based on trial counsel's failure to object to such testimony was therefore neither contrary to nor an unreasonable application of federal law. Furthermore, Petitioner has made no showing that the state appellate court's summary denial of his IAC claim was either contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). See id. at 687 (under Strickland, a defendant must show that (1) performance was deficient and that (2) the "deficient performance prejudiced the defense."). Accordingly, Petitioner's IAC claim is DENIED.
Petitioner alleges that the state court erred in finding no prejudice from juror misconduct, thereby violating his federal constitutional rights. Dkt. 1 at 14-22.
The state appellate court described the factual background on this claim and rejected it as follows:
Espinoza, 2016 WL 7105924, *9-12 (footnotes omitted).
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a trial by a fair and impartial jury. Irvin v. Dowd, 366 U.S. 717, 722 (1961). The right to a jury trial is extended to state criminal trials through the Due Process Clause of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 148-149 (1968) (holding that "the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment's guarantee.").
The Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217 (1982). Due process requires a jury capable and willing to deliberate solely based upon the evidence presented, and a trial judge watchful to prevent prejudicial occurrences and to assess their effects if they happen. Id. A decision on whether an allegedly compromising situation requires further investigation is a matter of court and trial management usually left to the sound discretion of the trial court under state law. People v. Williams, 58 Cal.4th 197, 290 (2013).
As noted above, where the state court's factual findings are at issue in a habeas proceeding, the district court must first conduct an "intrinsic review" of its fact-finding process. See Taylor, 366 F.3d at 999-1000. "[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (it is not the province of the district court on federal habeas review to reassess issues of credibility or to reweigh the evidence).
Here, the trial court conducted a hearing on Juror Number 55's alleged misconduct, which included the presentation of testimony by Juror Number 55 and the jury foreperson. 15 RT 1845-1856. The trial court found that the misconduct was not prejudicial. 15 RT 1858-1859. The state appellate court affirmed the trial court's ruling in a reasoned decision. Espinoza, 2016 WL 71905924, *11. In evaluating Petitioner's juror misconduct claim, the state appellate court determined that Juror Number 55's information was not so prejudicial that erroneous introduction would warrant reversal of judgment. Id. Here, the trial court acted immediately and informed the parties of the reports of juror misconduct, stating:
15 RT 1840-1841. The trial court added that it intended to bring Juror Number 55 in to determine what information he had provided to the jurors and to question the other jurors as well. 15 RT 1841. Petitioner's counsel requested a mistrial, which the trial court denied pending Juror Number 55 and the foreperson's responses and its intention to seat an alternate juror. 15 RT 1841. After questioning the foreperson, the trial court found that the other jurors had not discussed or considered the comments made by Juror Number 55. 15 RT 1854-1855. Based on this assurance, the trial court dismissed Juror Number 55, admonished the jury to disregard the extrinsic evidence, and brought in an alternate juror. 15 RT 1860-1862. The trial court's factual finding that the jury had not discussed the comments raised by Juror Number 55 is presumed to be correct unless rebutted by Petitioner. 28 U.S.C. § 2254(e)(1). As stated, the remaining jurors were admonished not to consider Juror Number 55's comments and to start jury deliberations anew. 15 RT 1861-1862.
Thus, the record demonstrates that Petitioner had a full, fair and complete opportunity to present evidence in support of his claim to the state courts. Therefore, the Court finds that the state court's fact-finding process that the jury had not discussed the comments raised by Juror Number 55 survives intrinsic review. See Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012) (noting that "a federal court may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable") (quoting Taylor, 366 F.3d at 999).
"Once the state court's fact-finding process survives this intrinsic review . . . the state court's findings are dressed in a presumption of correctness. . . ." Taylor, 366 F.3d at 1000. "AEDPA spells out what this presumption means: State-court fact-finding may be overturned based on new evidence presented for the first time in federal court only if such new evidence amounts to clear and convincing proof that the state-court finding is in error." Id. (citing 28 U.S.C. § 2254(e)(1)). In the instant matter, the state appellate court ruled that the denial prejudice in Juror Number 55's misconduct was based on the trial court's reasonable factual finding and legal conclusion that the Juror Number 55's misconduct occurred after the jury had already decided on that issue, and the misconduct would not have created the likelihood of a different result on retrial. On federal habeas review, that finding is entitled to deference under section 2254(d)(2). Petitioner fails to present clear and convincing evidence sufficient to overcome the presumption of correctness of the state court's factual findings.
However, the salient question under section 2254(d)(2) is whether the state appellate court, applying the normal standards of appellate review, could reasonably conclude that the trial court's findings are supported by the record. See Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004).
Here, as explained above, Petitioner claims the trial court erred in determining that Juror Number 55's misconduct did not cause prejudice, and that the state appellate court erred in affirming the trial court's findings. Dkt. 1 at 14. The trial court determined Juror Number 55's visitation of the shooting location and his comments on the location's visibility was not prejudicial. 15 RT 1859. The state appellate court then reasonably determined that there was no substantial likelihood that Petitioner suffered actual harm from the jury misconduct because the "extraneous material" was not inconsistent with other evidence at trial. Espinoza, 2016 WL 71905924, *11-12. The Ninth Circuit has set forth five factors for considering if extrinsic evidence is prejudicial:
Mancuso v. Olivarez, 292 F.3d 939, 951-52 (9th Cir. 2002) (quoting Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986)), overruled on other grounds by Slack v. McDaniel, 529 U.S. 473 (2000). In Mancuso, the Ninth Circuit explained that there is no "bright line test" to determine prejudice from juror exposure to extraneous information, and a court "place[s] great weight on the nature of the extraneous information that has been introduced into deliberations." See Mancuso, 292 F.3d at 950. But a court should not consider the number of jurors affected by extrinsic evidence because even a single juror's improperly influenced vote deprives the defendant of an unprejudiced, unanimous verdict. Lawson v. Borg, 60 F.3d 608, 613 (9th Cir. 1995).
Beginning with the first three Mancuso factors, the record shows that only Juror Number 55 went to the site of the shooting, but his comment that, "to [him] it was very difficult to see something from where [he] was standing" was made to the other members of the jury. 15 RT 1850. The comment was made on Friday, April 13, 2012, and the foreperson reported the misconduct on Monday, April 16, 2012, adding that "[n]o one was swayed by [Juror Number 55's] statement." 15 RT 1840. The foreperson reported that Juror Number 55's introduction of extrinsic material did not impact or change the jury's mindset because the jury "had already decided on that point." 15 RT 1853. Moreover, the comment in the present case did not introduce new evidence because photos of the scene and the witness's location were already given to the jury as evidence during trial. 12 RT 1509-1523.
As to the fourth Mancuso factor, the extrinsic material was introduced before the verdict was reached, at the beginning of deliberation. 15 RT 1853. However, the trial court noted that the foreperson stated that by that point "everybody had already decided on that point." Id.; see Bayramoglu, 806 F.2d at 888 (observing that, though not determinative, a juror's assurance that he could disregard the extraneous information was "certainly significant"). Finally, as to the fifth Mancuso factor, considering the witness statements and details of the scene submitted to the jury in addition to the foreperson's assurances, Juror Number 55's comment could not have been an influential factor in the jury's decision to find Petitioner guilty.
In sum, the record shows that, although Juror Number 55 inappropriately introduced extrinsic material during deliberations, the trial court found that such extrinsic material did not have a prejudicial effect on the verdict. The state court's decision was not "objectively unreasonable in light" of the evidence presented, and Petitioner has failed to rebut this presumption of the state court's correctness by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Furthermore, as the state appellate court concluded, the jury could have arrived at the same conclusion given the evidence presented at trial. Espinoza, 2016 WL 7105924, *11. Thus, under these circumstances, the state appellate court reasonably found that the trial court's determination was supported by the record. See id.
Accordingly, the state courts' decisions denying Petitioner's challenge to the alleged juror misconduct were not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, nor were they based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1), (2). Therefore, Petitioner is not entitled to relief on his juror misconduct claim, and it is DENIED.
Petitioner has requested an evidentiary hearing on his claims. Dkt. 1 at 27. The Court concludes that no additional factual supplementation is necessary, and that an evidentiary hearing is unwarranted with respect to the claims raised in the instant petition.
For the reasons described above, the facts alleged in support of these claims, even if established at an evidentiary hearing, would not entitle Petitioner to federal habeas relief. Further, Petitioner has not identified any concrete and material factual conflict that would require the Court to hold an evidentiary hearing in order to resolve. See Cullen v. Pinholster, 563 U.S. 170 (2011). Therefore, Petitioner's request for an evidentiary hearing is DENIED.
No certificate of appealability is warranted in this case. For the reasons set out above, jurists of reason would not find this Court's denial of Petitioner's claims debatable or wrong. See Slack, 529 U.S. at 484. Petitioner may not appeal the denial of a certificate of appealability in this Court but may seek a certificate from the Ninth Circuit under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases.
For the reasons outlined above, the Court orders as follows:
1. The petition is DENIED, and a certificate of appealability will not issue. Petitioner's request for an evidentiary hearing is DENIED. Petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals.
2. The Clerk of the Court shall terminate any pending motions and close the file.
