JAMES DONATO, District Judge.
Jose Meza, a pro se state prisoner, has brought a habeas petition pursuant to 28 U.S.C. § 2254 asserting claims for: (1) instructional errors; (2) Confrontation Clause violations; (3) insufficient evidence to support gang findings; and (4) cumulative error. The Court ordered Respondent to show cause why the writ should not be granted. Respondent filed an answer and a memorandum of points and authorities in support of it and Meza filed a traverse. The petition and a certificate of appealability are denied.
In May 2011, the Santa Cruz County District Attorney filed an information charging Meza and co-defendants Joel Sanchez and Angel Torres with the murder of Richard Campos and active participation in a criminal street gang. The information alleged that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang and that a principal intentionally discharged a firearm in the commission of the offense. 1 Clerk's Transcript ("CT") 1483-89; ECF No. 13-3 at 2-5. In April 2013, a jury found Meza guilty of second-degree murder and gang participation, and found the gang and firearm enhancements to be true. 2 CT at 2639-43; ECF No. 13-4 at 103-07. The jury found co-defendant Sanchez guilty of first-degree murder and gang participation and found true the gang and firearm enhancements. 2 CT at 2644-46, 2648 ECF No. 13-4 at 108-10, 112. The jury could not reach a verdict about co-defendant Torres. 2 CT at 2648; ECF No. 13-4 at 112.
In September 2013, the trial court sentenced Meza to 40 years to life in prison. Pet. at 2; ECF No. 1 at 2. Meza filed a direct appeal in the California Court of Appeal. Ex. C. In December 2015, the court affirmed the judgment. Ex. F.
In January 2016, Meza and Sanchez filed a petition for review in the California Supreme Court. Exs. G, H. The California Supreme Court granted review and remanded the case to the Court of Appeal for reconsideration in light of People v. Sanchez, 63 Cal.4th 665 (2016), which addressed a Confrontation Clause issue involving an expert's case-specific, out-of-court statements. Exs. I, J.
The California Court of Appeal summarized the facts as follows:
People v. Sanchez and Meza, 2016 WL 7052471 at *2-6.
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, Williams v. Taylor, 529 U.S. 362, 407-09 (2000), and the second prong applies to decisions based on factual determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A state court decision is "contrary to" Supreme Court authority only 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 Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority if it correctly identifies the 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. The federal court on habeas review 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." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409.
Under §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). In conducting its analysis, the federal court must presume the correctness of the state court's factual findings, and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The state court decision to which § 2254(d) applies is the "last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the Court looks to the last reasoned opinion. See Nunnemaker at 801-06. In this case the Court looks to the second opinion from the California Court of Appeal, People v. Sanchez and Meza, 2016 WL 7052471 (Cal. Ct. App. Dec. 5, 2016) (unpublished).
Meza argues the court erred by failing to give certain jury instructions, or by giving instructions that were conflicting and confusing.
A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Id. at 72. The instruction may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial record. Id. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982).
In reviewing an ambiguous instruction, the inquiry is not how reasonable jurors could or would have understood the instruction as a whole; rather, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. Estelle, 502 U.S. at 72 & n.4; Boyde v. California, 494 U.S. 370, 380 (1990); Waddington v. Sarausad, 555 U.S. 179, 190-191 (2009) (a due process violation requires ambiguity and a "reasonable likelihood" the jury applied the instruction in a way that violates the Constitution, such as relieving the state of its burden of proving every element beyond a reasonable doubt). A "meager `possibility'" that the jury misapplied the instruction is not enough. Kansas v. Carr, 136 S.Ct. 633, 643 (2016). If an error is found under Boyde, the court also must determine that the error had a substantial and injurious effect or influence in determining the jury's verdict, before granting habeas relief. Calderon v. Coleman, 525 U.S. 141, 146-47 (1998) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
The omission of an instruction is less likely to be prejudicial than a misstatement of the law. Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1987) (citing Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "`especially heavy burden.'" Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson, 431 U.S. at 155).
Meza argues the trial court erred by failing to instruct the jury that Sanchez was an accomplice as a matter of law so that the jury could consider Sanchez's statements about Meza only if they were corroborated by other evidence.
The California Court of Appeal denied this claim by interpreting California Penal Code section 111, which provides:
Cal. Penal Code § 1111.
Respondent argues this claim fails because it rests on the interpretation of Penal Code section 1111 and, thus, is a state law claim. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (federal habeas writ unavailable for violations of state law or for alleged error in interpretation or application of state law). In his traverse, Meza cites his Exhibit 1 as proof that he "gave notice to the state court of said federal constitutional violations." Exhibit 1 is a document filed in the Santa Cruz County Superior Court entitled, "Motion to `Federalize' and Preserve Objections Under Both the United States and California Constitutions." The document states that due process objections made during the trial should be considered pursuant to the Fifth Amendment and that confrontation or right to present evidence objections should be considered pursuant to the Sixth Amendment. This document is dated February 24, 2013, which was before or during the time Meza's trial was taking place. Even assuming this document "federalized" certain of Meza's state claims on appeal, it does not apply to this claim because Meza does not indicate his attorney objected to the court's failure to include this instruction.
Even if Meza's attorney had made a due process or confrontation clause objection, the claim fails because there is no United States Supreme Court authority requiring the corroboration of accomplice testimony. See United States v. Augenblick, 393 U.S. 348, 352 (1969) (procedural due process is not implicated in rules of evidence governing the admission of accomplice testimony). The Ninth Circuit specifically addressed California Penal Code Section 1111 and held, "to the extent that the uncorroborated testimony is not incredible or insubstantial on its face, the rule is not required by the Constitution." Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000). At Meza's trial, Sanchez's "testimony" was presented to the jury in a transcript of a recorded conversation between Sanchez and Melgoza, a police informant, in which they discussed the Campos shooting. Sanchez referred to the "jale" that happened and stated four people had been involved, including himself and Meza. Sanchez and Meza, 2016 WL 7052471 at *4. Sanchez also said he had stayed in the car with Gonzales when Meza and Torres "went for it." Id. This testimony is not incredible or insubstantial on its face, and therefore, the Constitution is not implicated in its admission. See also, Harrington v. Nix, 983 F.2d 872, 874 (8th Cir. 1993) (state laws requiring corroboration do not implicate constitutional concerns in habeas proceedings); Odle v. Calderon, 884 F.Supp. 1404, 1418 (N.D. Cal. 1995) (corroboration of accomplice testimony not a federal constitutional requirement).
Habeas relief is denied for this claim.
Meza argues the accomplice testimony instructions were erroneous because they "left it to the jurors to determine whether Sanchez and Torres were accomplices." This is similar to Meza's first claim because he again argues the court should have instructed that Sanchez, and also Torres, were accomplices as a matter of law, so the jury would be required to consider their statements only with corroboration.
The relevant jury instructions provided as follows:
ECF No. 13-21 at 157-59.
The same instructions were given, mutatis mutandis, for Sanchez. See ECF No. 13-21 at 159-61.
The Court of Appeal denied this claim by distinguishing People v. Robinson, 61 Cal.2d 373 (1964), upon which Meza relied in his state appeals and in this petition. This claim must be denied because this habeas court must accept the state court's interpretation of its own laws. See Swarthout, 562 U.S. at 219 (federal habeas writ is unavailable for violations of state law or for alleged error in the interpretation or application of state law); see also Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006) (claim that state supreme court misapplied state law or departed from its earlier decisions does not provide a ground for habeas relief).
This claim is also denied on the same ground stated above — there is no Supreme Court authority holding that accomplice testimony must be corroborated. See Augenblick, 393 U.S. at 352 (1969) (procedural due process is not implicated in rules of evidence governing the admission of accomplice testimony).
In addition, the Court of Appeal reasonably held that, if the jury had been told that Torres and Sanchez were accomplices as a matter of law, it would have unfairly prejudiced them by imputing their guilt. See Sanchez and Meza, 2016 WL 7052471 at *19. As pointed out by the Court of Appeal, both Sanchez and Mesa denied their involvement in the Campos murder and the jury could not reach a verdict as to Torres. If the jury had been instructed that Torres and Sanchez were accomplices as a matter of law, the determination of their guilt or innocence would have been removed from the jury.
Finally, the purported error did not have a substantial and injurious effect or influence on the jury's verdict because the co-defendants' out-of-court statements implicating Meza were independently corroborated by the newspaper article found in Meza's pocket, expert testimony supporting the gang motivation for the killing, the ballistics evidence found at the crime-scene, and the testimony of Lopez and Gonzalez. Although Lopez and Gonzalez were accomplices as a matter of law, their testimony was corroborated by the independent evidence.
Meza argues the instructions on co-conspirators' statements were confusing because they allowed the jurors to apply the preponderance standard to all the co-defendants' out-of-court statements, whether in furtherance of a conspiracy or not.
The relevant instructions provided:
ECF No. 13-21 at 165-68.
As pointed out by the Court of Appeal, in his appellate brief, Meza only cited the first paragraph of the instruction. See ECF No. 1 at 103. However, when the entirety of the instruction is read, it is clear that the jury could use the preponderance of the evidence standard only to consider statements made in furtherance of the conspiracy and only if the government proved by a preponderance of the evidence the four elements of a conspiracy given in the instruction. See Estelle, 502 U.S. at 72 (instruction may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial record).
Meza also argues the conspiracy instructions deprived him of due process because they "allowed the jury to determine whether or not Torres and Sanchez were accomplices and to use the uncorroborated accomplice statements to establish the defendants were in a conspiracy with each other." ECF 20 at 33-34 (traverse). However, the jury would have to consider the conspiracy instruction together with the instruction that corroboration was required where any statement of an accomplice tended to incriminate a defendant, or where any statement of a co-defendant was used to convict another co-defendant. See ECF No. 13-21 at 161-62 (instructing that jury may rely on co-defendants' statements to convict a defendant only if other evidence showed the charged crime was committed).
Meza has not shown a reasonable likelihood that the jury misapplied the accomplice instructions in a way that violates the Constitution. See Waddington, 555 U.S. at 190 (to show due process violation, defendant must show both ambiguity and a "reasonable likelihood" the jury applied the instruction in a way that violates the Constitution).
Meza argues the instructions on Sanchez's statements to Melgoza allowed the jury to consider them without any requirement of corroboration, even if it found Sanchez was an accomplice.
The relevant instructions provided:
ECF No. 13-21 at 161-62.
Although these instructions did not specify that, if the jury found Sanchez was an accomplice, it could only consider his statements to Melgoza with corroboration, the jury was given other instructions that statements of accomplices required corroboration. When the instructions are viewed as a whole, the jury would know that, if it found Sanchez was an accomplice, it could only consider his statements with corroboration. As stated previously, an instruction cannot be considered in isolation, but must be considered in the context of the instructions as a whole. See Estelle, 502 U.S. at 72; see also Weeks v. Angelone, 528 U.S. 225, 234 (2000) (jury presumed to follow its instructions); Doe v. Busby, 661 F.3d 1001, 1017 (9th Cir. 2011) (habeas court must presume that jurors follow the jury instructions). Meza has not shown a reasonable likelihood that the jury misapplied this instruction in a way that violates the Constitution.
Meza argues the jury was confused by the instructions allowing it to determine if Sanchez and Torres were accomplices because it was instructed that Gonzalez and Lopez were accomplices as a matter of law.
There was no reasonable likelihood the jury misapplied the accomplice instructions. The jury was aware of, and the instructions reflected that, the case involved the out-of-court statements of three defendants, and the jury was to determine if they were accomplices, and the testimony of Gonzalez and Lopez, who were non-defendant accomplices. There is no evidence that the jury did not follow all of the instructions, as this Court must presume it did. See Busby, 661 F.3d at 1017 (habeas court must presume jury follows its instructions).
As discussed, Sanchez and Torres were defendants and so any instruction that they were accomplices as a matter of law would remove the ultimate determination of their guilt from the jury; on the other hand, Gonzalez and Lopez were not defendants, so the jury was not being asked to determine their guilt or innocence. Given these facts, the Court of Appeal reasonably concluded that the different accomplice instructions were necessary.
Meza argues the corpus delicti (proof of crime) instruction was confusing when read with the instructions on accomplice testimony and single witness testimony.
The relevant instructions are as follows:
ECF No. 13-21 at 161-62.
ECF No. 13-21 at 147.
Meza argues the jury would be confused because it was told corroboration was required for it to consider the co-defendants' out-of-court statements if the jury found they were accomplices or if the statements were made to Gonzalez or Lopez, but corroboration was not required if their statements were made to someone else or if the jury found they were not accomplices. Although the jury was given many instructions about how to consider the statements of various individuals, viewing the instructions as a whole, see Estelle, 502 U.S. at 72, the jury would have understood when corroboration was needed, that Meza could not be convicted based on his or his co-defendants' out-of-court statements alone, and that the testimony of a single witness is sufficient to prove a fact. The California Court of Appeal denied this claim based on the presumption that the jury is able to follow its instructions. See Sanchez and Meza, WL 7052471, at *21. This is not an unreasonable application of Supreme Court authority. See Weeks, 528 U.S. at 234 (jury presumed to follow its instructions).
Meza argues the instruction on his own statements were confusing and incorrect.
The relevant instruction is as follows:
ECF. No. 13-21 at 155.
Meza argues that this instruction's reference to the accomplice instruction was confusing because the jury would believe it could only consider Meza's statements against himself if they were corroborated which contradicts a jury instruction that a defendant's uncorroborated statements against himself is admissible as an admission against his own interest. However, Meza does not argue that the latter instruction was given to the jury; therefore, his argument is hypothetical and not based on the actual instructions. Viewing the instructions as a whole, the jury would have understood the challenged instruction to mean, if it found Meza was an accomplice, it could not consider his statements to Gonzales or Lopez without corroboration.
As above, the Court of Appeal denied this claim based on the presumption the jury was able to correlate the various instructions on out-of-court statements. See Sanchez and Meza, WL 7052471, at *21. This is not an unreasonable application of Supreme Court authority. See Weeks, 528 U.S. at 234 (jury presumed to follow its instructions). And Meza is not well situated to argue this instruction was prejudicial to him because it required corroboration of his statements to Gonzales or Lopez before the jury could consider them.
Meza joined in Sanchez's claim on the aiding and abetting instructions on direct appeal and in Sanchez's petition for review in the California Supreme Court and includes this claim in his federal petition. Meza argues this claim is relevant to him because both he and Sanchez were charged as an aider and abettor. However, in his closing argument, the prosecutor's theory of the case was that Meza was the perpetrator of the crime because he shot Campos and Sanchez was an aider and abettor because he facilitated the shooting. See ECF 13-22 at 35-42 (prosecutor's closing argument on aiding and abetting). Therefore, it is questionable whether a claim challenging the aider and abettor instruction is relevant to Meza. Even so, for the sake of completeness, the Court will address it.
Meza argues the aiding and abetting instructions erroneously stated an aider and abettor could be guilty of first-degree murder so long as the direct perpetrator committed a willful, premeditated, and deliberate murder, instead of requiring the jury to determine "whether each aider and abettor personally acted with malice and a willful, premeditated and deliberated intent to kill." The Court of Appeal reviewed all of the aiding and abetting instructions and determined, "the instructions, together, informed the jury that Sanchez could not be convicted of first-degree murder unless he `intended to aid and abet' a first-degree murder." See Sanchez and Meza, WL 7052471, at *8.
This claim was argued on the basis of state law and the Court of Appeal analyzed it as such. As a state law claim it is not cognizable on habeas review, see Estelle, 502 U.S. at 67-68, and a habeas court must defer to the state court's interpretation of its own laws, see Swarthout, 562 U.S. at 219 (federal habeas writ unavailable for violations of state law or for alleged error in interpretation or application of state law).
On the merits, the claim also fails. The jury was given the following instructions:
ECF No. 13-21 at 164.
These instructions, together with the instructions specifying the elements of first- and second-degree murder, explained the required mental state for a person to be found guilty of the crime of murder as an aider and abettor. See ECF No. 13-21 at 169-72 (murder instructions). Read together, the instruction told the jury a defendant could not be convicted as an aider and abettor of murder unless he had knowledge of the perpetrator's plan to commit murder and intended to aid in the crime. This meets the California requirement of the mental state of an aider and abettor. See People v. Beeman, 35 Cal.3d 547, 560 (1984) (aider and abettor shares the perpetrator's specific intent when he knows full extent of perpetrator's criminal purpose and gives aid or encouragement with intent of facilitating perpetrator's commission of the crime). Therefore, the Court of Appeal reasonably concluded there was no reasonable likelihood the jury misconstrued the instructions to convict a defendant as an aider and abettor without considering his own mental state. See Sanchez and Meza, WL 7052471, at *8
Meza argues the trial court erroneously failed to give a requested instruction that an aider and abettor is not liable for a crime that is not a reasonably foreseeable consequence of the act aided and abetted and that an aider and abettor may be convicted of a lesser crime than the direct perpetrator. The Court of Appeal denied this claim on the ground that the requested instruction was likely to confuse the jury since the case was not prosecuted on a natural and probable consequences theory of aiding and abetting and there was no evidence that Meza intended to aid and abet a lesser offense than homicide. See Sanchez and Meza, WL 7052471, at *10.
This conclusion is not contrary to or an unreasonable application of Supreme Court authority. See Henderson, 431 U.S. at 155 (omission of an instruction is less likely to be prejudicial than a misstatement of the law). Furthermore, any error did not have a substantial and injurious effect or influence on the jury's verdict because, as stated above, the prosecution's theory was that Meza and Torres, as the shooters, were the direct perpetrators of Campos's murder, and Sanchez, the senior gang member who facilitated the crime, was liable as an aider and abettor. See ECF 13-22 at 35-42 (prosecutor's closing argument on aiding and abetting).
Citing People v. Aranda, 63 Cal.2d 518 (1965) and Bruton v. United States, 391 U.S. 123 (1968), Meza argues the trial court violated his right to confront witnesses against him by admitting the out-of-court statements of co-defendants Sanchez and Torres implicating him in the murder. The California Court of Appeal concluded Bruton did not apply because the co-defendants' statements were non-testimonial. See See Sanchez and Meza, WL 7052471, at *16.
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 ultimate goal of the Confrontation Clause is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. Crawford v. Washington, 541 U.S. 36, 61 (2004).
It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Id. The Confrontation Clause applies to all "testimonial" statements. Id. at 50-51. "Testimony . . . is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51. 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.
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); see also Whorton v. Bockting, 549 U.S. 406, 420 (2007) (under Crawford, "the Confrontation Clause has no application to [nontestimonial] statements and therefore permits their admission even if they lack indicia of reliability."). The "primary purpose" test establishes the boundaries of testimonial evidence. Ohio v. Clark, 135 S.Ct. 2173, 2179 (2015). Under this test, statements are testimonial: (1) "when they result from questioning, `the primary purpose of [which was] to establish or prove past events potentially relevant to later criminal prosecution,' Davis v. Washington, 547 U.S. 813, 822 (2006)," and (2) "when written statements are `functionally identical to live, in-court testimony,' `made for the purpose of establishing or proving some fact' at trial, Melendez-Diaz v. Massachussetts, 557 U.S. 305, 310-11 (2009)." Lucero v. Holland, 902 F.3d 979, 989 (9th Cir. 2018). When the primary purpose of taking an out-of-court statement is to create an out-of-court substitute for trial testimony, the statement is testimonial hearsay and Crawford applies. Michigan v. Bryant, 562 U.S. 344, 358 (2011). When that was not the primary purpose, "the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." Id. The primary purpose of a statement is determined objectively. United States v. Rojas-Pedroza, 716 F.3d 1253, 1267 (9th Cir. 2013). Thus "`the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.'" Id. (quoting Bryant, 562 U.S. at 360). The testimonial intent of the speaker must be evaluated in context, and part of that context is the questioner's identity. Lucero, 902 F.3d at 990 n.5.
In joint criminal trials, the introduction of incriminating out-of-court statements of a co-defendant, violates the defendant's Sixth Amendment right to confront witnesses. Bruton, 391 U.S. at 135-36. However, Crawford, which was decided after Bruton, added a new layer to Sixth Amendment analysis—that co-defendants' rights under the Confrontation Clause apply only to testimonial statements. Lucero, 902 F.3d at 984. After Crawford, non-testimonial co-defendants' statements are not protected by the Confrontation Clause. Id. (every circuit court to consider the issue has held that, after Crawford, Bruton's rule applies only to testimonial out-of-court co-defendant statements).
At issue are the out-of-court statements by co-defendants Sanchez and Torres implicating Meza in the Campos shooting. Sanchez's statements were admitted through the transcript of his taped conversation with Melgoza, Officer Trujillo's testimony of what was said on the tape, and through the testimony of Lopez. Torres's statements were introduced to the jury through the testimony of Lopez. Melgoza was a Poorside Watsonville gang member who, unbeknownst to Sanchez, had become a police informant. See Sanchez and Meza, 2016 WL 7052471, at *3. Lopez was a member of Poorside Watsonville who testified pursuant to an immunity agreement. Id. at *4. Because Sanchez and Torres made the statements at issue to fellow gang members to describe or brag about the shooting, reasonable speakers, in their circumstances, would not have believed their statements would be used at a trial against Meza. See Rojas-Pedroza, 716 F.3d at 1267 (testimonial nature of statements judged by objective standard of the intent of a reasonable speaker under the circumstances). Thus, the Court of Appeal reasonably concluded the co-defendants' statements were not testimonial.
Meza argues Sanchez's statements to Melgoza were testimonial because the police had wired Melgoza so that Sanchez's statements could be used at trial. However, the determining factor is the testimonial intent of the speaker, not the listener. See id. Although Melgoza was wearing a wire so his conversation with Sanchez could be used at trial, Sanchez was unaware of the wire. Therefore, as far as Sanchez was concerned, he was talking to a gang associate and friend; there is no evidence that Sanchez intended to have his statements used at a trial.
Meza cites cases from other circuits for the proposition that out-of-court statements by a confidential informant to a police officer are testimonial. Meza cites Officer Trujillo's testimony about what Melgoza told him to support his argument that the out-of-court statements of a confidential informant were admitted against him. However, the trial court cautioned the jury that Trujillo's testimony was not to be taken for the truth of the matter, but only for the jury to evaluate Trujillo's opinion about what he heard in the recording. See ECF No. 13-10 at 142. Both California and Federal rules of evidence permit testimony by an expert that is otherwise inadmissible to allow the jury to understand the basis of the expert's opinion. See Cal Evid. Code § 801; Fed. R. Evid. 703.
Under Lucero, 902 F.3d at 984, once the determination is made that the statements by Sanchez and Torres were nontestimonial, the Bruton protection against out-of-court co-defendants' statements does not apply. See Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir. 2003) (circuit decisions relevant as persuasive authority to determine whether a state court holding is an unreasonable application of Supreme Court precedent or to assess what law is clearly established), overruled on other grounds in Lockyer v. Andrade, 538 U.S. 63 (2003); Caliendo v. Warden of Cal. Men's Colony, 365 F.3d 691, 696-97 (9th Cir. 2004) (citing as clearly established Supreme Court authority circuit courts' consistent interpretation of a Supreme Court case). Therefore, the Court of Appeal's conclusion that Bruton did not apply to the co-defendants' out-of-court statements because they were nontestimonial is not contrary to or an unreasonable application of Supreme Court authority.
In his direct appeal and petition for review in the California Supreme Court, Meza joined in the claims raised by co-defendant Sanchez that there was insufficient evidence to prove the "primary activities" element of the gang participation charge and the gang enhancement. Meza also joined in Sanchez's claim that the gang expert's testimony establishing Poorside Watsonville's pattern of criminal gang activity was inadmissible testimonial hearsay and, thus, violated the Confrontation Clause. Meza asserts these claims in his federal petition.
A state prisoner who alleges that the evidence in support of his state conviction is insufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim. Jackson v. Virginia, 443 U.S. 307, 321 (1979). Federal habeas courts must look to state law for the substantive elements of the criminal offense, but the minimum amount of evidence required by the Due Process Clause to prove the offense is a matter of federal law. Coleman v. Johnson, 566 U.S. 650, 655 (2012). On habeas review, evidence is sufficient to support a conviction when, viewed in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. The habeas court must presume the trier of fact resolved any conflict in the evidence in favor of the prosecution and must defer to that resolution. Id. at 326.
Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of deference. Johnson, 566 U.S. at 651; Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). First, the state courts are required to view the evidence in the light most favorable to the prosecution and ask whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. Kyzar v. Ryan, 780 F.3d 940, 949 (9th Cir. 2015). Second, under AEDPA, habeas relief is warranted only if the state courts unreasonably applied the already deferential Jackson standard. Id. "The only question under Jackson is whether the finding was so insupportable as to fall below the threshold of bare rationality." Johnson, 566 U.S. at 656.
The Court of Appeal noted the following about this claim:
Sanchez and Meza, WL 7052471, at *11.
California Criminal Code § 186.22 (Participation in Criminal Street Gang) states, in relevant part:
Cal. Crim Code §§186.22 (a), (b), (e) and (f).
The Court of Appeal held that, under People v. Martinez, 158 Cal.App.4th 1324, 1330 (2008), Sergeant Chappell's testimony provided substantial evidence that Poorside Watsonville's primary activities were the commission of assault with a deadly weapon or felon in possession of a firearm, as provided in the trial court's instructions. Sanchez and Meza, WL 7052471, at *12.
Sergeant Chappell testified that he had: (1) participated in several hundred gang investigations and over 100 gang arrests; (2) personally interacted with gang members and communicated with other law enforcement officers about gang crimes; (3) written at least 50 warrants having to do with gang activities; and (4) testified as a qualified gang expert 46 times. See ECF No. 13-18 at 25-26. Based upon his experience, the court determined Sergeant Chappell was qualified to be an expert witness and, thus, could render opinion testimony in addition to testimony based on his personal knowledge. Id. at 28.
Sergeant Chappell then testified that he was familiar with Watsonville Poorside as well as the Sureno gang, the larger organization Watsonville Poorside was affiliated with. Id. at 28-46 (describing specific attributes of Sureno gang and Watsonville Poorside).
Concerning patterns of criminal activities for the Surenos, Sergeant Chappell testified they are stabbings, shootings, burglaries, weapons possessions and similar group activities. Id. at 46. Concerning predicate offenses, Sergeant Chappell testified about two crimes—(1) weapons possession and (2) stabbing while being an active participant in a criminal street gang—that were committed in the past by other members of Poorside Watsonville. Id. at 46-47; 54-55. The felon-in-possession conviction was authenticated by the certified court record of the conviction and the stabbing conviction was authenticated by Sergeant Chappell's testimony about his personal investigation of this offense and the certified court record of the conviction. Id. at 53, 55-56.
Under the deferential Jackson standard and viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found it established the primary activities of Poorside Watsonville beyond a reasonable doubt.
Meza argues his right to confront witnesses against him was violated by the admission of Sergeant Chappell's testimonial hearsay to establish Poorside Watsonville engaged in a "pattern of criminal activity." The Court of Appeal denied this claim, holding that the certified court records of the convictions were not testimonial and that Sergeant Chappell's testimony establishing the stabbing incident was not hearsay because it was based on his personal knowledge from investigating the crime and speaking to the victim while the victim was under the stress of excitement from the incident. Sanchez and Meza, 2016 WL 7052471, at *13-14.
As stated above, the Confrontation Clause only applies to "testimonial" statements. Crawford, 541 U.S. at 50-51. The court records of the convictions of Poorside Watsonville members for weapons possession and assault with a deadly weapon were not testimonial because their primary purpose was to memorialize the two convictions, not for the purpose of being used as evidence in Meza's criminal trial. See Lucero, 902 F.3d at 989 (explaining primary purpose test). Sergeant Chappell's testimony about the stabbing conviction was based on the following: (1) he was one of the first people who arrived at the scene of the stabbing incident, which occurred on the front steps of the police department; (2) he contacted the victim who gave Sergeant Chappell the description of the people who stabbed him and the vehicle they were in; and (3) he relayed this information to other officers. See ECF No. 13-18 at 56. This testimony, based on Sergeant Chappell's personal knowledge, was not hearsay. Because Sergeant Chappell testified at the trial and was subject to cross-examination by Meza's counsel, the Confrontation Clause was not implicated. The Court of Appeal's denial of this claim was not contrary to or an unreasonable application of Supreme Court authority.
Meza argues the cumulative effect of the alleged constitutional errors violated his right to a fair trial. In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003). Where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011). Similarly, there can be no cumulative error when there has not been more than one error. United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012).
In this case, there were no constitutional errors and, therefore, nothing can accumulate to the level of a constitutional violation.
The federal rules governing habeas cases brought by state prisoners require a district court that issues an order denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Cases, Rule 11(a).
A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that 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).
Meza has made no showing warranting a certificate and so none is granted.
The Court orders as follows:
Meza's petition for a writ of habeas corpus is denied and a writ of appealability will not issue. The Clerk shall enter a separate judgment and close the file.
