United States District Court, N.D. California
September 6, 2005.
FRANCE A. ELIAS, Petitioner,
TONY LAMARQUE, Warden, Respondent.
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner France A. Elias ("petitioner"), a California
prisoner proceeding pro se, filed the above-titled petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. After
reviewing the petition, the Court ordered respondent Tony
LaMarque ("respondent") to show cause why the petition should not
be granted based on petitioner's cognizable claims. Respondent
has filed an answer, accompanied by a memorandum and exhibits,
contending that the petition should be denied. Petitioner has
filed a traverse.
A jury in Santa Clara County Superior Court found petitioner
guilty of second degree robbery with personal use of a firearm.
The Superior Court sentenced petitioner to twelve years in state
prison, inclusive of ten years for the firearm enhancement. The
California Court of Appeal affirmed the conviction and sentence,
and the California Supreme Court denied the petition for review. FACTUAL BACKGROUND
The California Court of Appeal provided the following summary
of the facts of the case:
Edwin Lin owned the ECL market. Mr. Lin also ran a
check cashing service in the market. Lin made and
kept an identification card that contained a
photograph, address, fingerprint and signature for
each check cashing customer. This card indicated the
dates upon which they cashed checks.
At approximately 8:00 p.m. on December 19, 2000,
Carlos Ramirez and the defendant entered the ECL
Market. Ramirez joined Lin behind the counter while
the defendant pointed a gun at Mr. Lin. The two men
ordered Mr. Lin to put money in a bag, but he
refused. Ramirez grabbed money from the open register
and stuffed it into his pockets. He then jumped back
over the counter and ran out of the store with the
defendant, dropping some of the money.
Each of the men wore black and had pantyhose pulled
over their faces. The defendant wore a beanie hat.
Mr. Lin recognized Ramirez as a frequent check
cashing customer. Mr. Lin did not recognize the
defendant, but was able to see him clearly during the
robbery, and was sure of his identification of the
defendant as the robber. According to Mr. Lin's
calculation, the duo stole $1996.
Jerry Marsh and Diana Gesner testified that while
they sat in Marsh's car in a parking lot at 8:00
p.m., two men approached the ECL Market. The men wore
black clothing and hoods. Marsh believed one man had
a beanie hat on under his hood. A few minutes later,
the same two men ran away from the store and drove
away in a dark colored truck. Each man appeared to be
carrying something under his shirt. It was too dark
outside to see either of their faces. After the men
left, Marsh and Gesner went inside the market to see
what had happened. There was money strewn on the
floor behind the counter and Mr. Lin said he had just
Officer Chris Pilger responded to a dispatch
regarding the robbery. Mr. Lin gave Ramirez's
identification card with a photograph and thumbprint
to Officer Pilger. Shortly after the robbery, a truck
matching the description of the getaway vehicle was
involved in a traffic accident. The defendant and
Ramirez were arrested when they arrived at an address
recorded in the accident report approximately three
and a half hours after the robbery in a GMC Jimmy
truck. While Officer Pilger assisted in booking the
defendant, he found approximately $419 in cash in the
defendant's pockets, and a similar amount of cash on
Ramirez. Ramirez had a pistol in the waistband of his
pants. A black beanie hat and a pair of cut-up
women's pantyhose were found in the truck.
Detective Filemon Zaragoza separately interviewed
first Ramirez and then the defendant. Detective
Zaragoza told the defendant that Ramirez had
confessed and identified the defendant as the one
holding the gun. The defendant denied any such
participation. The two suspects were then placed
together in a holding cell while a video camera
recorded their interaction. When Ramirez told the
defendant that he had "snitched," the defendant
responded, "we worked together, we got caught
together, we're fucked together, we'll finish it
together, fool." They also discussed how the police
might have identified them as the culprits. And then
stated, "[It's] like us walking in with full
identity, [it's] just like us walking in with like
armed burglary (inaudible) full identity, with our
names, face, address card, everything."
Ramirez testified that he pled guilty to the robbery
[of] the market and that the defendant was with
Ramirez during the robbery. People v. Elias, No. H023687, slip op. at 1-3 (Cal.Ct.App. July
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus
on "behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
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); Williams v. Taylor, 529 U.S. 362, 402-404, 409
(2000).*fn1 Habeas relief is warranted only if the
constitutional error at issue had a "substantial and injurious
effect or influence in determining the jury's verdict." Penry v.
Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993)).
B. Legal Claims
1. Confrontation Clause
At petitioner's trial, Detective Filomen Zaragoza ("Detective
Zaragoza") testified that, during his interview of petitioner, he
told petitioner that Carlos Ramirez ("Ramirez") had inculpated
petitioner as a participant in the robbery and as the suspect who
had used the gun. Petitioner's counsel objected to the testimony
as inadmissible hearsay, which objection was overruled by the
trial court. Petitioner claims he is entitled to habeas relief
because the admission of this testimony violated his right under
the Confrontation Clause of the Sixth Amendment "to be confronted
with the witnesses against him." See U.S. Const., amend. VI. The California Court of Appeal held petitioner's right to
confrontation was not violated, based on the Supreme Court's
decision in Ohio v. Roberts, 448 U.S. 56 (1980). Under
Roberts, the Confrontation Clause bars the admission of hearsay
evidence in a criminal trial unless the evidence (1) falls within
a "firmly rooted hearsay exception" as dictated by the applicable
rules of evidence, or (2) bears "particularized guarantees of
trustworthiness." See id. at 66. The Court of Appeal agreed
with the trial court that Detective Zaragoza's testimony came
within the "firmly rooted" hearsay exception for adoptive
Shortly before the instant petition was filed, however, the
Supreme Court decided Crawford v. Washington, 541 U.S. 36
(2004), partially abrogating Roberts. Although petitioner's
conviction became final almost five months before Crawford was
decided, the Ninth Circuit has held that Crawford applies
retroactively to collateral attacks on state court decisions.
See Bockting v. Bayer, 399 F.3d 1010, 1015-1016 (9th Cir.
2005). Consequently, petitioner's claim must be reviewed de
novo under Crawford. See id.
Under Crawford, the Confrontation Clause bars the admission
of out-of-court statements of a "testimonial" nature unless (1)
the declarant is unavailable to testify, and (2) the defendant
had a prior opportunity to cross-examine the declarant. See
Crawford, 541 U.S. at 59. While expressly declining to give
"testimonial" a comprehensive definition, the Supreme Court held
that the term "applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations." See id. at 68. Here, because
Ramirez inculpated petitioner during questioning by the police,
any such statement by Ramirez would qualify as "testimonial"
under Crawford. Next, as discussed infra, Ramirez was
"unavailable" to testify as a witness with respect to
petitioner's use of the gun. Third, it is undisputed that
petitioner lacked an opportunity to cross-examine Ramirez about
his statements to Detective Zaragoza at the time such statements
were made. Nevertheless, the Crawford analysis is not complete
at this point.
In particular, Crawford also held that the Confrontation
Clause is not violated where (1) "the declarant appears for
cross-examination at trial" or (2) the testimonial statement at
issue was admitted "for purposes other than establishing the
truth of the matter asserted." See id. at 59 n. 9.
As to the first of these two exceptions, although Ramirez
appeared as a witness at petitioner's trial, he successfully
asserted his Fifth Amendment privilege against self-incrimination
when asked whether petitioner used the gun during the robbery. As
a result, Ramirez was, in essence, "unavailable" to testify as to
that issue for purposes of the Confrontation Clause. See
United States v. Wilmore, 381 F.3d 868, 871 (9th Cir. 2004)
(finding government witness's assertion of Fifth Amendment
privilege as to prior statements rendered witness "unavailable,"
leaving defendant with "no opportunity to `confront'" witness as
to prior statements). Consequently, the Court finds Ramirez did
not "appear for cross-examination at trial" with respect to the
sole issue raised by the instant petition.
Respondent further argues, however, that the Crawford rule is
inapplicable for the additional reason that the challenged part
of Detective Zaragoza's testimony was not admitted for purposes
of establishing the truth of Ramirez's statement to the police,
but solely to prove the fact that the statement was conveyed to
petitioner, in order to establish an adoptive admission. As noted
above, after Detective Zaragoza told petitioner that Ramirez had
inculpated him as the gunman, petitioner and Ramirez were placed
in the same holding cell, which was monitored by video and audio
recording devices, and that a conversation ensued. In that
conversation, petitioner confronted Ramirez with what petitioner
had been told by Detective Zaragoza, and Ramirez conceded he had
made the statements as reported. Rather than denying the truth of
those statements, however, petitioner simply responded by telling
Ramirez he should have invoked his right to remain silent. At
petitioner's trial, a videotape of this conversation was admitted
into evidence on the theory that, by failing to deny Ramirez's
accusations, petitioner had adopted them as petitioner's own
In Tennessee v. Street, 471 U.S. 409 (1985), on which
respondent relies, a prosecution witness was permitted to testify
as to the confession of an accomplice, in order to rebut the
defendant's assertion that he had been coerced into repeating the
accomplice's confession as his own. See id. at 411-12.*fn2 The Supreme Court,
noting the jury had been admonished that the confession "was
admitted `not for the purpose of proving its truthfulness but for
the purpose of rebuttal only,'" see id. at 412, held the
witness's testimony was not hearsay because it was admitted "not
to prove what happened at the ? scene but to prove what happened
when [the defendant] confessed, and, accordingly, the trial
court's admission of the testimony "raise[d] no Confrontation
Clause concerns," see id. at 414.
Here, likewise, the jury was advised as to the limited purpose
for which it could consider the evidence challenged herein.
Although the trial court did not admonish the jury at the time
Detective Zaragoza's testimony was given, the trial court did
give a detailed limiting instruction to the jury at the close of
the case. Specifically, the jury was instructed pursuant to
CALJIC 2.71.5 as follows:
If you should find from the evidence that there was
an occasion when the defendant (1) under conditions
that reasonably afforded him an opportunity to reply;
(2) failed to make a denial in the face of an
accusation, expressed directly to him or in his
presence, charging him with the crime for which this
defendant now is on trial or tending to connect him
with its commission; and (3) that he heard the
accusation and understood its nature, then the
circumstance of his silence and conduct on that
occasion be considered against him as indicating an
admission that the accusation thus made was true.
Evidence of an accusatory statement is not received
for the purpose of proving its truth but only as it
supplies meaning to the silence and conduct of the
accused in the face of it. Unless you find that the
defendant's silence and conduct at the time indicated
an admission that the accusatory statement was true,
you must entirely disregard the statement.
(See CT at 152.) This instruction made clear that Detective
Zaragoza's testimony was not admitted for the purpose of
establishing the truth of Ramirez's statement to him.
Additionally, the arguments of counsel for both parties made
clear that Detective Zaragoza's testimony was introduced solely
for the purpose of establishing an adoptive admission. On the
subject of adoptive admissions, the prosecutor argued, in part:
"You are going to hear instructions about what's
called an adoptive admission . . . I will show it to
you now.*fn3 . . . Adoptive admission is basically a circumstance where somebody
says something and you hear it and it's something bad
about you. . . . In this case, you heard someone say
or you heard that someone said you were the one
holding the gun during the robbery. You, France
Elias. Your friend, Carlos Ramirez said this about
(See RT at 233.) Similarly, petitioner's trial counsel, in
introducing his argument as to adoptive admissions, stated:
"An adoptive admission is a difficult thing because
you are assuming a lot in that as well. What you have
got is somebody says something negative and the other
person doesn't really respond to that. And then we
assume that means, well, he must be adopting a
statement. He must be admitting it. Look carefully at
the statement in this case that you have. What they
are talking about in some parts is what Carlos told
(See RT at 249.)
Given the trial court's explicit instructions, reinforced by
the arguments of counsel, the Court assumes that here, as in
Street, the jury followed the instructions they received and
did not consider the subject testimony for the truth of the
matters stated therein. Consequently, the Confrontation Clause is
not implicated and there is no error under Crawford. See
Street, 471 U.S. at 414-15.
Further, assuming, arguendo, the testimony comes within the
Crawford rule, petitioner nonetheless is not entitled to habeas
relief, because the admission of Detective Zaragoza's testimony
did not have "a substantial and injurious effect or influence in
determining the jury's verdict." See Brecht,
507 U.S. at 637-638.
As set forth above, the jury viewed a videotape of the
conversation between petitioner and Ramirez at the time the two
suspects were housed together in the holding cell. From that
evidence alone, the jury was fully aware that Ramirez had
inculpated petitioner during his interview with Detective
Zaragoza. At the outset of their videotaped conversation,
petitioner informed Ramirez: "[T]hey told me that you snitched . . .
you gave everything out, you . . . told them that I had the
gun"; Ramirez responded: "I told." (See CT Exh. 1b at 118.)
Indeed, the entire conversation essentially concerns the fact
that Ramirez had spoken to the police and had inculpated both
himself and petitioner, which, as petitioner observed, was not
prudent and left them few, if any, desirable options. (See
id. at 118-21) Given the jury's viewing of the videotape of this conversation, Detective Zaragoza's testimony
that he told petitioner Ramirez had inculpated him was, in
essence, cumulative and, in any event, undisputed. See United
States v. Nielsen, 371 U.S. 574, 581 (2004) (noting evaluation
of prejudice includes consideration of "whether the evidence was
cumulative" as well as "the presence of corroborating evidence").
In addition, the prosecution's case as to petitioner's use of
the gun was strong. See id. (noting evaluation of prejudice
includes "the overall strength of the prosecution's case"). Edwin
Lin ("Lin"), the victim of the robbery, positively identified
petitioner at trial as the individual who used the gun during the
robbery. Although, as petitioner notes, "[t]he vagaries of eye
witness identification are well-known," see United States v.
Wade, 388 U.S. 218, 228 (1967), Lin's personal familiarity with
Ramirez, who was a frequent patron of Lin's check-cashing
business, made him a particularly credible witness. Because Lin
recognized Ramirez, he had no difficulty distinguishing the two
suspects. Moreover, Lin's testimony that petitioner stayed on the
far side of the counter, holding the gun on Lin, is consistent
with Lin's testimony that Ramirez was the suspect who came behind
the counter, grabbed the money from the cash register and stuffed
it into his pockets.*fn4
Further, Lin's account was corroborated by the videotape of
petitioner's jailhouse conversation with Ramirez, during which
petitioner expressed no disagreement with the accuracy of
Ramirez's statement to the police, a statement wherein Ramirez
identified petitioner as the suspect with the gun. Instead,
immediately after Ramirez informed petitioner he had inculpated
petitioner as the suspect with the gun, petitioner proceeded to
counsel Ramirez as to his legal rights:
[Y]ou should have told them nothing. You should have
just told them, hey, my right is to have a lawyer, so
I have nothing to tell you, because they tell you,
you have the right to remain silent.
(See CT Ex. 1b at 118.) Indeed, later in the conversation,
petitioner appears to explicitly admit to using the gun:
[Petitioner]: It's my fault homes.
[Ramirez]: How's it your fault? (Inaudible) you tried
to help me.
. . .
[Petitioner]: [T]hey not gonna write, oh he was there
to help him, they gonna write, yeah he was with him
in the scene. He was the one that was holding the
gun, they not gonna say, oh, he did that because he
was helping him, oh plus France doesn't need no
money, he just did, they not gonna see that bro.
(See id. at 120.)
Given that Detective Zaragoza's testimony as to what he told
petitioner about Ramirez's statement was cumulative, that the
testimony was corroborated by other evidence, and that the
prosecution's case against petitioner was exceptionally strong,
petitioner has not shown that the evidence had a "substantial and
injurious effect or influence in determining the jury's verdict.
See Brecht, 507 U.S. at 637.
2. Due Process
As discussed above, Detective Zaragoza, after informing
petitioner that Ramirez had inculpated him, placed the two
suspects in the same holding cell; their conversation was
recorded on videotape; and the videotape was played for the jury
at trial. Petitioner claims that because Detective Zaragoza
withheld from him the fact that his statements would be recorded,
the admission of the videotape at trial rendered the trial
"fundamentally unfair," in violation of his right to due process
under the Fifth and Fourteenth Amendments. See Henry v.
Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999).
Petitioner correctly concedes that the videotaping of his
conversation with Ramirez violated neither his Fifth Amendment
right against self-incrimination, see Illinois v. Perkins,
496 U.S. 292, 296 (1990) (holding right against
self-incrimination not implicated when incriminating statements
elicited by civilian rather than police agent),*fn5 nor his
Sixth Amendment right to counsel, see Brewer v. Williams,
430 U.S. 387, 398 (1977) (holding right to counsel does not attach until formal charges have been
lodged). Nevertheless, he argues, given "the underlying
rational[e] of the Fifth and Sixth Amendment cases," his rights
were violated to such a degree as to render his trial
fundamentally unfair. (See Petn. at 14.)
Petitioner has provided no authority, and the Court has located
none, in support of this claim. Rather, the Supreme Court has
held that "coercive police activity is a necessary predicate to
the finding that a confession is not `voluntary' within the
meaning of the Due Process Clause. . . ." See Colorado v.
Connelly, 479 U.S. 157, 167 (1986). Such coerciveness has only
been found in cases involving police misconduct so extreme as to
implicate fundamental rights rooted in the "traditions and
conscience of our people," see Moran v. Burbine,
475 U.S. 412, 432 (1986) (quoting Rochin v. People of California,
342 U.S. 165, 169 (1952)), such as the imposition of extreme physical
and/or mental duress, see, e.g., Colorado v. Connelly,
479 U.S. at 164 n. 1 (collecting cases).
In Moran v. Burbine, for example, the Supreme Court held that
a deliberate failure on the part of the police to inform a
suspect under interrogation that his attorney was trying to reach
him, while assuring the attorney that his client would not be
interrogated, fell "short of the kind of misbehavior that so
shocks the sensibilities of civilized society as to warrant a
federal intrusion into the criminal process." See Moran v.
Burbine, 475 U.S. at 433-434. Here, there was no
misrepresentation or coercive conduct of any kind, and, contrary
to petitioner's argument, it is not within the discretion of this
Court to rule that "what the Officers did was simply wrong." (See
Petn. at 19 (emphasis omitted).)*fn6 CONCLUSION
In light of the foregoing, the petition for a writ of habeas
corpus is hereby DENIED. As the claims were adequately presented
in the petition and traverse, the interests of justice did not
necessitate the appointment of counsel in this matter, and,
accordingly, petitioner's request for appointment of counsel is
The Clerk shall close the file and terminate any pending
IT IS SO ORDERED.
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