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Ernesto Arellano v. Kelly Harrington

September 17, 2012

ERNESTO ARELLANO, PETITIONER,
v.
KELLY HARRINGTON, WARDEN, RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Petitioner challenges a judgment of conviction entered against him on July 28, 2006, in the Yolo County Superior Court on two counts of first degree murder and two counts of attempted murder. Petitioner raises nineteen separate claims for federal habeas relief. Upon careful consideration of the record and the applicable law, the court will deny petitioner's application for a writ of habeas corpus.

PROCEDURAL AND FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:*fn1

Defendants James Joseph Olague, Ernesto Duran Arellano, and Oscar Hurtado Cervantes appeal following their conviction for first-degree murder (Pen. Code, § 187; undesignated statutory references are to the Penal Code) of Robert Stepper and Eric Folsom, and attempted murder of Vicki Folsom and Jessica Valdez on Halloween 2002. Defendants raise a variety of contentions. We shall order modification of Cervantes's sentence to reduce to a one-third subordinate term a 10-year section 186.22 enhancement on Count 3. We shall otherwise affirm the judgments.*fn2 FACTUAL AND PROCEDURAL BACKGROUND On September 21, 2003, an indictment was filed alleging that defendants and others -- Christina Marie Marten, Nathaniel Easlon, Richard Betancourt, and (later added) Gilberto Lopez *fn3 -- committed the following crimes: Count 1: First-degree murder of Robert Stepper (§ 187, subd. (a)), with enhancements alleging the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)), Cervantes used a firearm which caused death or bodily injury (§ 12022.53, subds.(a), (d)), and a principal personally discharged a firearm causing death or bodily injury (§ 12022.53, subd. (a)). Count 2: First-degree murder of Eric Folsom, with enhancements as above. Count 3: Attempted murder of Vicki Folsom (§§ 187, subd. (a); 664, subd. (a)), with enhancements as above. Count 4: Attempted murder of Jessica Valdez, with enhancements as above.

The indictment also alleged special circumstances for multiple murder and intentional killings as participants in a criminal street gang (§ 190.2, subds. (a)(3), (a)(22). The prosecutor sought the death penalty against Arellano and Cervantes only, not against Olague.

At trial, the prosecution presented evidence supporting its theory that, although the Norteno and Sureno gangs were rivals, their members cooperated in committing these crimes because Arellano (a Norteno leader or "shot caller") and nonparty Candelario Garza (a Sureno leader) cooperated in the sale of drugs in Woodland. Arellano (a Norteno) ordered the hit because victim Stepper (a Norteno) owed him money for drugs, and Arellano wanted to send a message to others who owed money and re-instill fear in the community. Christina Marten (a Norteno) brought Stepper to the place of attack. The shooter was Cervantes, who was not a gang member but who associated with Nortenos, Surenos, and Crips. Stepper was the target, and the other victims were shot either because they were in the "kill zone" or because Cervantes intentionally shot them in an attempt to eliminate witnesses. Easlon (a Crips gang member *fn4 ) acted as lookout. Arellano's neighbor, Gilberto Lopez (a Sureno), was the getaway driver. Olague (a Sureno) was on the street at the time of the shooting to ensure that all participants did what they were supposed to do. Evidence adduced at trial included the following: Easlon and Betancourt (Norteno) testified about a gathering at Arellano's apartment before Halloween 2002. Arellano asked Easlon and Betancourt to "fuck up" (beat up) Robert Stepper, who owed Arellano about $500 to $800 and was not doing what he was supposed to be doing to help the drug trade. Easlon (who owed Arellano $1,600 for drugs) and Betancourt refused to do the actual deed, because Stepper was their friend. Arellano asked Cervantes, who was also there, to "handle it." Cervantes agreed and was given some drugs.*fn5 Easlon, to pay off his debt, agreed to Arellano's request to station himself at the end of the street on Halloween and "make sure nobody we know goes down that street . . . ." Lopez came to the door and was told by Arellano, "[i]t's going to go down," and Lopez was needed as the getaway driver. (Though Lopez had a "beef" with Cervantes, who impregnated Lopez's girlfriend, there was evidence that Lopez did not know Cervantes would be involved.) Arellano took a phone call, then said "Jaime" and Garza were on the way over with the gun and told Easlon and Betancourt to leave.*fn6 Easlon testified he knows three "Jaimes," one of which is Olague. Easlon did not stay and therefore did not know if it was Olague who showed up. However, Easlon testified it was Olague who showed up when the crime took place.

On Halloween, around 10:00 p.m., as planned, Easlon concealed himself at the end of Oak Avenue to stand watch. Marten walked Stepper down Oak Avenue and then left. Stepper began chatting with the other victims near a pickup truck in victim Valdez's driveway. Olague, whose job was to make sure others did their job, walked Cervantes partway down the street.

As related by the surviving victims, a man approached the victims, "kind of" grinned, pulled out a gun, aimed the gun at Stepper's head, and fired from a distance of two feet (killing Stepper). The shooter then pointed the gun at the others and fired multiple times (killing 17-year-old Eric Folsom and injuring 14-year-olds Vicki Folsom and Jessica Valdez). At trial, one of the survivors identified Cervantes as the shooter, though she had not identified him a photo lineup.

As Lopez drove the getaway car, Cervantes hit the dashboard and said, "I got 'em, I got 'em." Lopez had not expected any shooting. He later told Garza that Veronica Lugo (girlfriend of Guillermo Ramirez, who had been with Lopez) was in an alley and heard the gunshots. Lugo testified she was summoned to an apartment the next day where several people, including Cervantes and Olague, were present. Garza, Lopez, and Ramirez led her into a bedroom and told her to keep her mouth shut or she and her children would be killed.

An expert in criminal gangs, Sergeant Steven Gill, said rival gangs do work together in drug activity and will commit a crime such as murder together to further their criminal enterprise, enhance both gangs' reputations, and further instill fear and intimidation in the community and other gang members. A non-gang member's participation would be a way to be accepted by the gangs.

All three defendants testified at trial and denied any involvement. Arellano (age 34 at trial) said he was a Norteno for 10 years but was not a shot caller. He denied any pre-Halloween meeting, denied ordering or suggesting that anyone kill Stepper, and said he did not even know Cervantes or Olague before Halloween 2002, except for an incident where he almost got into a fight with Olague (whom he pegged as a Sureno). Arellano admitted that on one occasion he told Cervantes to "handle it" but testified he was telling Cervantes to go get a pipe to smoke drugs. Stepper was Arellano's friend, did not buy drugs from him, and did not owe him money. On Halloween, Arellano was on his way home, saw Stepper, said hello, and noticed a car full of people wearing blue (a Sureno color). Arellano said his only prior crimes were spousal abuse, selling drugs, and participating in a prison riot in which he was just following gang orders, though he was in front of his cohorts.

Cervantes (age 28 at trial) testified he has never belonged to a gang, though he knew gang members. He knew Olague before Halloween, but not Arellano. When arrested, Cervantes said he "knew this day was coming," but he thought he was being arrested for violating probation. Cervantes denied telling his cellmate, Richard Bowie, about the case and denied tampering with his handcuffs (evidence of which was adduced as an escape attempt). Cervantes had a prior felony conviction for selling drugs and a drug-related misdemeanor. Alibi witnesses testified Cervantes was with them that night.

Olague (age 29 at trial) testified he was a gang member when he lived in Los Angeles (he equivocated on whether it was Sureno) and associated with "southerners" when he moved to Woodland. He was friendly with Cervantes. Olague did not know or have any contact with Arellano, except Olague ran from a brief confrontation with Arellano as a member of a rival gang in a parking lot about a month before the crimes. Olague denied any involvement in the crimes. He came upon the crime scene after a friend dropped him off and he was walking to a friend's house. Olague admitted two prior felony convictions, for auto theft and verbally threatening his ex-wife.

To advance the defense theory that the police pressured the accomplices to make false confessions consistent with the prosecution's theory, the defense hammered at inconsistencies in the accomplices' statements, and a defense expert testified about how police interrogations can elicit false confessions.

In May 2006, the jury returned verdicts finding all three defendants guilty on all counts and finding true all enhancement allegations.

In June 2006, the jury set the sentence for Arellano and Cervantes at life without the possibility of parole on the two counts of first degree murder.

The trial court denied defense motions for new trial.

On July 28, 2006, the trial court sentenced Arellano to prison for life without possibility of parole on Counts 1 and 2 (first degree murder). The court sentenced Arellano to nine years on Count 4 (attempted murder) and a consecutive term of two years, four months on Count 3 (attempted murder). The court imposed three 25-years-to-life terms for the section 12022.53, subdivisions (d) and (e), enhancements on Counts 1 through 3 and a 20-year term for the section 12022.53, subdivision (c), enhancement on Count 4. Cervantes received the same sentence, plus two 10-year section 186.22 enhancements on Counts 3 and 4 plus an eight-month consecutive term on an unrelated drug offense.

Olague received the same sentence as Arellano, except Olague received the midterm sentence of seven years (rather than the upper term of nine years) for the Count 4 attempted murder.

People v. Olague, et al., No. C053372, 2009 WL 924503, **1-3 (Cal. App.3 Dist., Apr. 07, 2009) (hereinafter Opinion)

On May 12, 2009, petitioner filed a petition for review in the California Supreme Court. ("Petition for Review," lodged on Aug. 1, 2011.) The Supreme Court summarily denied that petition by order dated July 15, 2009. ("Order Denying Petition for Review," lodged on Aug. 1, 2011.)

Petitioner filed his federal petition for a writ of habeas corpus on October 4, 2010. Respondent filed an answer on July 6, 2011, and petitioner filed a traverse on February 21, 2012.

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims

An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), 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.*fn7

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). 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 § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn8

II. Petitioner's Claims

A. Insufficient Evidence

Petitioner's first claim for federal habeas relief is that the evidence introduced at his trial was insufficient to support "several of the convictions and gang findings." (Doc. No. 1 (hereinafter Pet.) at 9.)*fn9 Specifically, petitioner argues that: (1) there was insufficient evidence introduced to support his convictions on counts two, three, and four (the murder of Eric Folsom and the attempted murder of Vicki Folsom and Jessica Valdez) under the natural and probable consequences doctrine; (2) there was insufficient evidence to support the jury finding that he committed premeditated and intentional gang murder of Eric Folsom; and (3) there was insufficient evidence to support the jury finding that his offenses were committed to aid a criminal street gang. (Id. at 57-63.) Petitioner argues that his convictions for the murder of Folsom and the attempted murders of Vicki Folsom and Jessica Valdez "take the natural and probable consequences doctrine to an extreme" and were improperly based on negligence alone. (Id. at 58-59.)

With regard to his conviction for the first degree murder of Eric Folsom, petitioner argues that there was no evidence introduced at his trial that he intended to kill anyone other than Stepper. (Id. at 59.) He notes that the trial judge opined during the jury instruction conference that the trial evidence did not "suggest that there was a plan to kill or attempt to kill anyone other than Stepper" and that a jury verdict of the first degree murder of Eric Folsom would "probably be error." (Id.; Reporter's Transcript on Appeal (RT) at 14160.) Petitioner argues that the prosecution theory that petitioner intended to "eliminate" any witnesses who were present when Stepper was shot was based on "mere speculation" and that "such conjecture and surmise cannot suffice for the essential elements of first-degree murder." (Pet. at 59.) He also argues that there was no substantial evidence he knew that any witnesses would be present at the scene of the shooting, that he ordered the "elimination" of witnesses, or that the indiscriminate shooting of "friendly associates" was the natural and probable consequence of the intended shooting of Stepper. (Id. at 59-60.)

Petitioner further claims that, absent evidence he specifically intended to kill Eric Folsom, there was insufficient evidence "to fulfill intentional gang murder circumstances." (Id. at 60.) In this regard, he explains:

The jury's finding of the intentional gang killing special circumstances as to Folsom is even less explicable. For that finding requires that the killer and nonkiller accomplice alike specifically intended Folsom's death; natural and probable consequences are not enough. (citation omitted.) The fact these jurors made this finding -- despite the prosecutor's concession there was no evidence petitioner intended to kill anyone (assuming arguendo) but Stepper -- bespeaks volumes to the prejudicial effect of the other errors discussed in this brief, not the actual evidence surrounding these killings. (Id. at 62.) Petitioner notes that the prosecutor did not charge him with the premeditated attempted murder of the female victims and argues, "how could there be any premeditated intent to eliminate Folsom as a witness, but not the females?" (Id.)

With regard to the special circumstance that the offenses were committed to aid a street gang, petitioner argues that because the participants were all from different gangs, there is insufficient evidence that the killings were committed on behalf of "a norteno street gang subset, as opposed to a prison gang or a regional affiliation." (Id.) He claims that "herein we have a case involving a diverse group allegedly assisting an attack to aid a personal or joint drug dealing, not dealing for any particular gang and with the specific intent to promote, further, or assist in any criminal conduct by gang members." (Id..) Petitioner explains that "the seriously overbroad rubric of 'Norteno' used here is not even a cognizable street gang." (Id. at 63.)

The California Court of Appeal rejected all of these arguments raised by petitioner on appeal, reasoning as follows:

VII. Substantial Evidence

Arellano argues no substantial evidence supports (1) the convictions regarding the three victims other than Stepper under the natural and probable consequences doctrine; (2) findings of premeditated and intentional gang murder of Eric Folsom; and (3) a finding the shootings were gang-related. Cervantes joins and adds there was no evidence he was a gang member. Olague joins and adds a claim that, because there was insufficient evidence of his involvement, the trial court erred in denying his motion for acquittal (§ 1118.1) at the close of the prosecution's case in chief. We review substantial evidence claims under the familiar standard of review of the whole record to determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) The same standard governs our review of the acquittal motion. (People v. Valerio (1970) 13 Cal. App.3d 912, 919.) For purposes of this appeal, we will accept Olague's argument against adoption of a federal rule about waiver of acquittal where a defendant presents evidence. We shall conclude substantial evidence supports the judgments.

A. Natural and Probable Consequences

Murder convictions may be sustained on the theory that murder was a natural and probable consequence of a planned assault with a deadly weapon. (People v. Prettyman (1996) 14 Cal.4th 248, 262-263.) Arellano argues this was, at most, a targeted walk-up shooting to discipline one person in the gang, Stepper, and the shooter's unexplained, indiscriminate shooting of nonresisting associates was "beyond the pale" and should not be attributed to accomplices. However, there was evidence this was not simply to discipline one person. There was evidence that Arellano was angry that so many of his fellow gang members owed him money for drugs and were consuming the drugs instead of selling them. He wanted to send a message and instill fear in the community. When Lopez asked why they needed him to be a getaway driver if all they were going to do was "smash on him [Stepper]," Arellano said it was going to be a little bit more than that. Arellano told Easlon and Betancourt to leave the pre-Halloween gathering because Olague was bringing the gun over for Cervantes to check out. Substantial evidence supports murder and attempted murder as a natural and probable consequence.

B. Premeditation/Intent

Arellano argues he could not be convicted of first degree murder of Eric Folsom under a natural and probable consequences theory, unless premeditation was a natural and probable consequence of the alleged plan. Arellano says the prosecutor did not even allege premeditation with respect to the shooting of Eric Folsom. However, Arellano cites no authority supporting his position. The indictment did allege first degree premeditated murder of Eric Folsom, and the prosecutor argued to the jury that defendants murdered Folsom because he was in the wrong place at the wrong time, and defendants knew they could not afford to leave any witnesses behind.

Arellano says the court commented it believed the jury would err if it found anything more than second degree murder as to Folsom (as the other jury found in Christina Marten's trial). However, that comment, made during discussion of jury instructions, was made before the prosecutor explained the theory he planned to argue to the jury (which the court conceded was arguable), that when Cervantes approached the truck and saw Stepper was not alone but was talking and laughing with other people, Cervantes had time to decide whether to proceed or abort the plan; he had time to calculate, deliberate, and decide to kill all of them; he proceeded to shoot Stepper and then proceeded to aim at and shoot the others; and his coconspirators were bound by his acts. The prosecution presented this theory to the jurors in closing arguments, as well as the argument that gang members are schooled "the more violent you are, the better . . . ."

Substantial evidence supports the prosecutor's theory. There was evidence about violence as a component of gang culture, as well as the plan in this case to do something major to instill fear in the community. Cervantes had time to see Stepper was not alone before proceeding with the plan, yet Cervantes chose to proceed. After shooting Stepper, Cervantes aimed at and fired gunshots at the other three, and there was evidence of this from the surviving victims.

Arellano cites (without discussion) People v. Francisco (1994) 22 Cal. App.4th 1180 at pages 1188-1191. However, Francisco rejected a defendant's claim that the aiding/abetting instruction misled the jury into believing that an intent to kill was not necessary for first degree murder. (Id. at p. 1189.) Francisco said it "is well settled that a defendant whose liability is predicated on his status as an aider and abettor is not required to have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. It is the intent to encourage and bring about the criminal conduct of the planned offense which the jury must find, not the specific intent that is an element of the target offense." (Ibid.)

Arellano also cites (without discussion) People v. Caesar (2007) 153 Cal. App.4th 114, which was depublished after Arellano filed his opening brief and later replaced by People v. Caesar (2008) 167 Cal. App.4th 1050. Caesar is distinguishable, because the problem there was that the jury found the nonshooter guilty of premeditated attempted murder despite finding the shooter guilty of unpremeditated attempted murder.

Arellano argues the finding of intentional gang killing as a special circumstance (§ 190.2, subds.(a)(22) & (c) *fn10 ) as to Folsom makes even less sense, because that finding requires that the actual killer and the accomplice both specifically intend Folsom's death; natural and probable consequence is not enough. Arellano says the fact the jury made this finding despite the prosecutor's concession of no evidence Arellano intended to kill anyone but Stepper, speaks to the prejudicial effect of other errors assigned on appeal. He cites the jury instruction that this special circumstance required findings that "1. A defendant intentionally killed the victim or, with the intent to kill, aided and abetted in the killing; [¶] 2. At the time of the killing, that defendant was an active participant in a criminal street gang; [¶] 3. The members of that gang engaged in . . . a pattern of criminal gang activity; [¶] 4. That defendant knew that the gang members engaged in or have engaged in a pattern of criminal gang activity; and [¶] 5. The murder was carried out to further the activities of the criminal street gang."

However, there was evidence, and the prosecutor did argue, that the murder of any witnesses was part of the plan. The plan was to make a big statement to instill fear in the community. They planned the event for Halloween, when people are out at night. Cervantes saw witnesses were with Stepper, yet continued with the plan and approached and shot Stepper. Cervantes then pointed and shot at Eric Folsom at close range. The act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. (People v. Smith (2005) 37 Cal.4th 733, 741-742 .) Cervantes was not a shot caller or even a gang member, which supports the inference he was following the plan. We conclude substantial evidence supports the conviction for first degree murder of Eric Folsom as to all three defendants.

C. Section 186.22

Arellano argues there is no substantial evidence of gang-related offenses under section 186.22, because there is no substantial evidence the offenses were committed on behalf of a Norteno street gang subset, as opposed to a prison gang or a general regional affiliation. However, as Arellano acknowledges, we have held to the contrary, that a subset need not be identified. (People v. Ortega (2006) 145 Cal. App.4th 1344.)

Arellano also argues this case involves a diverse group assisting an attack to aid a personal or joint drug dealing, not dealing for any particular gang. However, the evidence here meets the standard for section 186.22, that the crime was committed for the benefit of, at the direction of, or in association with any criminal street gang, and with specific intent to promote, further, or assist in any criminal conduct by gang members. (People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)

Cervantes argues there was no evidence he was a gang member. However, a person need not be a gang member to be guilty of violating section 186.22. (In re Jose P. (2003) 106 Cal. App.4th 458, 466.) Here, there was plenty of evidence that Cervantes associated with gang members, understood gang culture, was present when Arellano and Olague discussed the plan, and that a non-gang-member would be trusted as shooter in a gang-related crime with an eye toward earning membership in the gang. Cervantes complains the expert gave as an (invalid) example of association the fact that Cervantes once lived with Olague's family. However, that example did not stand alone.

The evidence sufficed for application of section 186.22

(Opinion at *38-40.)

The Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "after viewing the evidence 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 v. Virginia, 443 U.S. 307, 319 (1979). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318).

In conducting habeas review of a claim of insufficient evidence, "all evidence must be considered in the light most favorable to the prosecution." Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). "A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to grant the writ, the federal habeas court must find that the decision of the state court reflected an objectively unreasonable application of Jackson and Winship to the facts of the case. Ngo, 651 F.3d at 1115; Juan H., 408 F.3d at 1275 & n.13. When a federal habeas court assesses a sufficiency of the evidence challenge to a state court conviction under AEDPA, "there is a double dose of deference that can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011).

Viewing the evidence in the light most favorable to the verdict in this case, and for the reasons expressed by the state appellate court, this court finds that there was sufficient evidence introduced at petitioner's trial to support his convictions on the charges relating to the three victims other than Stepper under the natural and probable consequences doctrine. The court also finds that there was sufficient evidence introduced at trial to support the jury's findings of the premeditated and intentional gang murder of Eric Folsom and that the shootings were gang-related.

As explained by the state appellate court, there was evidence introduced at petitioner's trial that petitioner and his associates intended to kill fellow gang member Stepper and possibly do "a little bit more than that" in order to send a message to the community that failing to pay for drugs and consuming drugs when those drugs should have been sold would not be tolerated. There was also evidence that violence was part of gang culture and that the murder of witnesses who were present at the scene of a killing may have been part of petitioner's plan to instill fear in the community. The decision of the state appellate court with respect to these claims is not contrary or an unreasonable application of clearly established federal law and is not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87. Accordingly, petitioner is not entitled to federal habeas relief with respect to his claims challenging the sufficiency of the evidence.

B. Exclusion of Evidence of Third Party Culpability/ Denial of Motion for New Trial

In his next ground for relief, petitioner argues that the state trial court violated his right to due process when it excluded evidence of third party culpability and denied his related motion for a new trial. (Pet. at 9.) Specifically, petitioner argues that the trial court erroneously excluded statements from Rudy Gonzalez and Mark Estrada, both of whom asserted their Fifth Amendment privilege not to testify at petitioner's trial, and also improperly excluded "further supporting testimony from Mr. Michel." (Id. at 63.) Petitioner contends that the exclusion of this evidence left him "with an unfairly incompletely [sic] patchwork of third party culpability evidence when, in fact, there was more considerable indications pointing towards an indiscriminate Sureno on Norteno shooting." (Id.)

The California Court of Appeal explained the background to this claim, as follows:

I. Exclusion of Evidence Re Third Party Culpability

Defendants argue the trial court improperly excluded some evidence of third party culpability and erred in denying their motion for new trial on this ground, in violation of their constitutional rights to present a defense. We disagree.

1. Background

The trial court conducted an Evidence Code section 402 hearing. The defense called as a witness Rudy Gonzalez, who refused to answer questions. Arellano's investigator, James Peoples, testified regarding an interview he conducted with Rudy Gonzalez in February 2006 (more than three years after Halloween 2002), in which Gonzalez supposedly made statements against his penal interest. According to Peoples, Gonzalez said he knew Cervantes did not commit the crime and wanted to help because Cervantes has a child. Gonzalez said he and other Surenos decided on Halloween night "to get a buster" (a Norteno). They had no one in mind; it was random. They had guns, including a .22 caliber. Gonzalez said he stayed home, while the others drove around in two cars, looking for Nortenos. It thus appears, Gonzalez was relating hearsay when he told Peoples the Surenos drove around, came upon the victims, drove around the block, let out one of the Surenos to do the shooting, drove to a park and waited, then returned to Gonzalez's home. Peoples said Gonzalez said he heard on a police scanner the report of gunshots fired. Peoples said that Gonzalez said that Bowie said he was going to use Cervantes to get out of his own (Bowie's) case.

Marcelino Michel, a (former) Norteno who shared a jail cell with David Cordero, testified that Cordero stated in jail that he was drinking at the home of Rudy Gonzalez that Halloween night. Gilberto Lopez, Guillermo Ramirez, and Rudy Gonzalez, Sr., left to "smoke" a Norteno and later returned, acting "weird," after a police scanner in the home reported gunshots fired.

David Cordero took the stand at the hearing and denied making the statements to Michel. Cordero said he was at Rudy Gonzalez's home that night. There was a scanner there. Cordero drank beer and got beat up.*fn11

The trial court ruled Gonzalez's statement was inadmissible because it was not against his penal interest, was not proper third party culpability evidence, was unreliable, and was more prejudicial than probative. (Although Arellano says the trial court erroneously accepted the prosecution's view that admission of Gonzalez's hearsay statement would deny the prosecution's right to cross-examine in a "reverse Crawford violation," it appears the trial court ultimately did not rule on that basis.)

At a later hearing under Evidence Code section 402, Mark Estrada refused to answer questions. Carlos Munoz testified he and his friend Estrada were Surenos. According to Munoz, Estrada on the day after the Halloween shootings said that he and his family, which included Rudy Gonzalez, "had something to do with it," "[t]hat they just disposed of the gun" by throwing it off a bridge. When asked if he remembered telling defense investigators that Estrada said his cousin and family did the shooting, Munoz said yes, "I remember him telling me that."

The trial court did not allow Peoples to testify and limited Munoz's testimony, noting Estrada's statement about involvement was limited to disposing of the gun and, even if it might subject Estrada to liability as an accessory after the fact or coconspirator, such involvement would not absolve any of these defendants (as required for third party culpability evidence)

In front of the jury, Cordero testified he was at Gonzalez's home on Halloween and got beat up, but he denied telling Michel anything about a shooting.

Michel testified to the jury that, in jail, Cordero said he was at Rudy's house that night; Rudy Sr. left with Gilberto Lopez and Guillermo Ramirez and returned acting strange; while they were gone, a police scanner in the house reported gunshots were fired. Also, Veronica Lugo told Michel that Guillermo Ramirez bragged about being involved in the Halloween murders.

The trial court instructed the jury, "The defendants in this case have introduced testimony for the purpose of showing that another person or persons may have committed or been involved in a separate or different conspiracy, to commit the crimes for which these defendants are here on trial. If, after consideration of all the evidence, you have a reasonable doubt that any or all of these defendants committed any of the crimes charged, you must find that defendant or those defendants not guilty."

The defense moved for a new trial based in part on the exclusion of third party culpability evidence. The trial court denied the motions.

(Opinion at *35-37.)

Petitioner argues that the trial court's ruling excluding evidence of third party culpability constituted an arbitrary and unreasonable application of state hearsay rules and deprived him of due process, compulsory process, and the right to present a complete defense. (Pet. at 64-69.) He contends that the excluded proposed testimony constituted "a strongly significant statement of an independent Sureno involvement in a gang-on-gang attack beyond Lopez, Olague, Garza, or Memo; it clearly points directly to a broader indiscriminate Sureno attack." (Id. at 67.) Petitioner asserts that he "should never have been limited to sketchy evidence of an independent Sureno attack that night when much more was available." (Id. at 68.) He contends that the proposed testimony of third party culpability "impeached the entire shaky prosecution theory, including Valdez's suspect identification of Cervantes as the shooter." (Id.) Petitioner also argues that issues regarding the credibility of these witnesses were for the jury, and not the judge, to decide. (Id.)

In affirming petitioner's judgment of conviction the California Court of Appeal rejected these arguments, reasoning as follows:

2. Analysis

Evidence of third-party culpability must be admitted when it tends to show that someone other than the defendant committed the offense (subject to Evidence Code section 352). (People v. Hall (1986) 41 Cal.3d 826, 829.) To withstand exclusion under Evidence Code section 352, the evidence need only be capable of raising a reasonable doubt of the defendant's guilt. (People v. Cudjo (1993) 6 Cal.4th 585, 609.)

Since this case involved an uncharged conspiracy between multiple parties, evidence that others may have been culpable would not tend to show that these defendants were not culpable. Moreover, the court did allow some of defendants' evidence.

Defendants argue the trial court erred in excluding the statements of Rudy Gonzalez and Mark Estrada and supporting testimony from Marcelino Michel (that Cordero said an unknown person said they were going to "smoke" Nortenos). Defendants think the excluded evidence contradicted the prosecution's timing of events and showed the crime was a spontaneous moment of gang rivalry rather than a planned conspiracy.

However, as to Rudy Gonzalez, even assuming for the sake of argument that his statement to Peoples was against Gonzalez's penal interest, it was unreliable hearsay because Gonzalez was not even there. He stayed home. He refused to name the persons who apparently told him they went out and shot someone. Without showing who made those statements, it could not be shown that those persons were unavailable, and therefore those statements were not admissible as declarations against those persons' interest. Defendants' citation to People v. Provencio (1989) 210 Cal. App.3d 290, is unavailing. Provencio admitted an anonymous declarant's statement not as a statement against penal interest, but as a spontaneous statement (Evid. Code, § 1240).

As to Estrada, we agree with the People that the only portion of Estrada's statement that was against his penal interest was that he disposed of the gun. Defendants think this would conflict with evidence that Cervantes said he got rid of the gun by tossing it in the river, because it takes only one person to throw a gun away. However, it is possible for more than one person to be present when a gun is thrown away and for more than one person to claim credit for the toss.

Cervantes argues the jury would have been receptive to evidence of third party culpability, because the jury twice asked why they had not heard from or about what happened to Guillermo Ramirez. However, this does not render the trial court's ruling erroneous or prejudicial.

Under the subheading regarding exclusion of evidence of third party culpability, Cervantes complains the trial court refused a defense request for a jury instruction on third party culpability. However, the trial court did instruct, "The defendants in this case have introduced testimony for the purpose of showing that another person or persons may have committed or been involved in a separate or different conspiracy, to commit the crimes for which these defendants are here on trial. If, after consideration of all the evidence, you have a reasonable doubt that any or all of these defendants committed any of the crimes charged, you must find that defendant or those defendants not guilty."

We conclude defendants fail to show any evidentiary error warranting reversal. (Opinion at *37-38.)

Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense" and the right to present relevant evidence in their own defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). This right is not unlimited, but rather is subject to reasonable restrictions. United States v. Scheffer, 523 U.S. 303, 308 (1998); Taylor v. Illinois, 484 U.S. 400, 410 (1988) (An accused does not have an "unfettered right" to present any evidence he or she wishes); Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003). A state evidentiary rule excluding evidence does not abridge a criminal defendant's right to present a defense unless it is "arbitrary or disproportionate" and "infringe[s] upon a weighty interest of the accused." Scheffer, 523 U.S. at 308. See also Crane, 476 U.S. at 689-91).

Evidence of potential third-party culpability must be admitted when, under the "facts and circumstances" of the individual case, its exclusion would deprive the defendant of a fair trial. Chambers v. Mississippi, 410 U.S. 284, 303 (1973) (exclusion of evidence of third party confession violated due process where the excluded evidence was highly corroborated and the testimony was crucial to the defense); Lunbery v. Hornbeak, 605 F.3d 754, 760-61 (9th Cir. 2010) (exclusion of statement by third party that he had killed defendant's husband deprived defendant of the right to present a defense because the "excluded testimony . . . bore substantial guarantees of trustworthiness and was critical to [defendant's] defense"). The United States Supreme court has noted that "rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged . . . are widely accepted[.]" Holmes, 547 U.S. at 326. Moreover, the Ninth Circuit has determined that where the proffered evidence of third party culpability simply affords a possible ground of suspicion pointing to a third party and does not directly connect that person with the actual commission of the offense, that evidence may be excluded. People of Territory of Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993) (citing Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir. 1983)); see also Walters v. McCormick, 122 F.3d 1172, 1177 (9th Cir. 1997 )("The exclusion of tangential evidence of something that may have happened at a different time and place does not constitute a due process violation.") Under California law, a criminal defendant has a right to present evidence of third party culpability if that evidence is capable of raising a reasonable doubt regarding his own guilt. SeeSpiveyv. Rocha, 194 F.3d 971, 978 (9th Cir. 1999) (citing People v. Hall, 41 Cal. 3d 826, 833 (1986)). In order for evidence pointing to another suspect to be admissible, however, "there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." Hall, 41 Cal. 3d at 833. Motive or opportunity alone is not enough. Spivey, 194 F.3d at 978 (citing Hall, 41 Cal. 3d at 833).

This court agrees with the California Court of Appeal that the evidence of third party culpability proffered by the defense in this case was tenuous and unreliable and, even if believed by the jury, would not necessarily have absolved petitioner of the charged crimes. As stated by the state appellate court, "[s]ince this case involved an uncharged conspiracy between multiple parties, evidence that others may have been culpable would not tend to show that these defendants were not culpable." (Opinion at *37.) The evidence that petitioner argues should have been admitted at his trial, while it may have suggested a possible ground of suspicion pointing to the culpability of others, does not directly connect any particular other person with the actual commission of the charged offenses. Nor, for the reasons expressed by the California Court of Appeal, did the proffered evidence bear "substantial guarantees of trustworthiness." Lunberry, 605 F.3d at 761. Further, as noted by the state appellate court, the trial court did not exclude all of the proffered defense evidence of third party culpability and also gave the jurors an instruction covering that topic. Given all of these circumstances, the decision of the California Court of Appeal that the state trial court did not err in excluding some of the proffered defense evidence of third party culpability was not contrary to federal law. See Christian v. Frank, 595 F.3d 1076, 1083-86 (9th Cir. 2010) (exclusion of evidence that a third party admitted to murder was not a violation of due process where there was doubt about the truthfulness of the confessions and whether they were ever made in the first place and the witnesses were unreliable); Spivey, 194 F.3d at 978 (concluding that state trial court did not infringe defendant's constitutional rights by excluding speculative third-party culpability evidence). Cf. Chia v. Cambra, 360 F.3d 997, 1004-08 (9th Cir. 2004) (federal habeas relief granted where several exonerating confessions that bore "strong indicia of reliability" had been excluded from evidence and where those confessions clearly stated that the petitioner had not been involved in the murder at all). Accordingly, petitioner is not entitled to federal habeas relief on this claim.

C. Exclusion of Testimony of Eyewitness Expert

In his next ground for federal habeas relief, petitioner claims that the trial court violated his right to due process and to present a defense when it excluded the testimony of an eyewitness identification expert offered to "dispute" Jessica Valdez' in-court identification of Cervantes as the shooter. (Pet. at 69.) Petitioner argues that the other evidence at trial implicating Cervantes as the shooter was unreliable because it consisted solely of testimony by "jailhouse snitch[es]" and accomplices desperate to avoid a lengthy sentence. (Id. at 69-70.) He further argues that the respondent "identifies precious little corroboration here that was independent of the accomplices or the snitch, much less any corroboration that was substantial or reliable." (Id. at 70.) According to petitioner, because of the unreliability of this corroborating evidence, "anything raising doubts regarding accomplice claims [that] Cervantes was the shooter could impact the entire prosecution case premised upon petitioner's supposed 'order' to Cervantes" to shoot Robert Stepper. (Id.) Petitioner argues, in essence, that because testimony that Cervantes was the shooter was so unreliable, testimony by an eyewitness identification expert casting doubt on the in-court identification of Cervantes by Valdez was crucial to his case. He argues that "absent physical evidence or corroboration from independent witnesses, it cannot be said these hotly disputed accomplice identifications of Cervantes warranted exclusion of [the eyewitness expert] testimony -- especially without a foundational hearing." (Id. at 70-71.)

The California Court of Appeal rejected these arguments, reasoning as follows:

H. Exclusion of Eyewitness Identification Expert

Cervantes and Arellano argue the trial court erred or abused its discretion in excluding a defense expert on eyewitness identification. We see no basis for reversal.

Cervantes moved in limine to preclude the surviving victims from any in-court identification of him as perpetrator, because they were unable to identify him in prior photo lineups, Valdez misidentified someone she saw in a store, and in-court identification would result from suggestibility rather than recollection, in that Cervantes was the only one left on trial whose photo was included in the lineups. Cervantes did not obtain a ruling on the motion.

At trial, the prosecutor asked surviving victim Jessica Valdez to look around the courtroom and see if anyone resembled the shooter. She identified Cervantes, though she had been unable to identify him previously. At trial, Valdez said she was mistaken when she told people at the scene that the shooter wore a white sweatshirt, rather than the black clothing described by every other witness. At trial, she was "pretty sure" and then "positive" about her identification.

Previously, during the investigation, Valdez was unable to pick out anyone in six photo lineups. She told the grand jury she was unable to identify anyone but would remember the shooter if she saw him face-to-face. She told the grand jury the shooter stood five feet from her. He wore a hood. He was a brown-haired, 17 to 20 year old Hispanic, five feet, eight or nine inches tall, with a small dark spot under his right eye and no facial hair or glasses. (Other evidence conflicted with her description and indicated Cervantes was 28 years old at the time, bald, with a thin moustache, a little goatee, and glasses.)

At the recess after Valdez's in-court identification, Cervantes's attorney moved for a mistrial, stating he had not received a hearing or ruling on his motion and "obviously" was not going to object during Valdez's testimony.

The trial court denied the motion for mistrial, stating, "The lineup in the courtroom was . . . imminently [ sic ] fair. There were a number of people in the courtroom. There was nothing suggestive in any way. And it is clear when an eyewitness sees something in the flesh is much better than looking at photo lineups."

On cross-examination, Valdez admitted she had talked to people about the case and read articles which identified Cervantes as the shooter.

Cervantes proposed to call as a witness Dr. Robert Shomer, an expert on deficiencies in eyewitness identifications of strangers. The People sought exclusion of the expert, arguing that despite Cervantes's denial of involvement, this was not an eyewitness identification case, because of the conspiracy and other statements implicating Cervantes.

The trial court agreed with the prosecutor and stated, "Here you have significant additional . . . evidence that points to Mr. Cervantes in addition to Jessica Valdez." Defense counsel argued that plea-bargained verification was not independent verification. However, the court said, "There is a whole lot of evidence that connects Mr. Cervantes with this crime independent of Jessica Valdez," though the court said it found her in-court identification "highly powerful and highly credible." The court also noted the testimony of Easlon and others who saw Cervantes at the scene. After further argument, the trial court said, "There is a whole lot of evidence that connects Mr. Cervantes with this crime independent of Jessica Valdez. [¶] I also found Jessica Valdez's identification of him in court to be highly powerful and highly credible." The court said, "you have any number of witnesses that have testified that he was to be the shooter, that people saw him walk down the street. People saw -- another witness saw him getting in the car saying I got him, I got him, let's go. You got significant independent different testimony from different people that tie him to this crime. [¶] You can argue in your argument and, well, but they are all coconspirators, they're former defendants, and they're trying to get themselves out of trouble, and that's your argument, but the point is that is still separate evidence of his involvement independent of Jessica's identification in court." The court concluded, "It is not just an identification type of case. It is not an identification case. It is a matter of who do you believe, and what do you believe. I just don't think this is the type of case that eyewitness testimony from an expert is going to be beneficial or of any use. I think if you believe her or not, she's credible or she's not, but there is enough independent separate evidence pointing to Mr. Cervantes to not justify bringing in this expert. It is not necessary."

On appeal, defendants cite People v. McDonald (1984) 37 Cal.3d 351 (overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914), which said: "When an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury, it will ordinarily be error to exclude that testimony." (Id. at p. 377.)

However, the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion, and such evidence will not often be needed. (McDonald, supra, 37 Cal.3d at p. 377.) People v. Sanders (1995) 11 Cal.4th 475, at page 509, held the trial court did not abuse its discretion in excluding the expert, where "[a]lthough eyewitness testimony was a key element of the prosecution's case, . . . [it] was not the only evidence linking the defendant to the crime. The eyewitness identification was corroborated by other independent evidence of the crime and the conspiracy leading to it." (Id. at p. 509.) Sanders went on to say that, in any event, no prejudice appeared and it was not reasonably probable the defendant would have received a more favorable result had the expert evidence been admitted. (Id. 11 Cal.4th at p. 510.) Defense counsel extensively cross-examined the eyewitnesses and argued the weaknesses of eyewitness identification to the jury, and the trial court instructed the jury to consider the various factors in evaluating eyewitness testimony. (Ibid.)

Here too, there was no abuse of discretion, because the in-court identification was not the only evidence linking Cervantes to the crimes, and the identification was corroborated by other independent evidence. In this regard, the independent evidence may come from accomplices. (People v. Jones (2003) 30 Cal.4th 1084, 1112.) Cervantes claims the prosecutor argued to the jury that the eyewitness identification alone sufficed. However, what the prosecutor argued was that the eyewitness identification was "probably" enough, but this was a serious case, which was why the prosecution had presented so much more evidence.

Even assuming abuse of discretion, no prejudice appears. Defense counsel extensively cross-examined Valdez and covered the point in closing argument, and the jury was instructed with CALJIC No. 2.92, factors to consider in proving identity by eyewitness testimony, including whether the witness was able to identify the alleged perpetrator in a photographic lineup.

The exclusion of the eyewitness identification expert does not warrant reversal of the judgment.

(Opinion at *33-35.)

The United States Supreme Court has acknowledged a "traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts." Crane, 476 U.S. at 689. Accordingly, a state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Estelle, 502 U.S. at 68-70.*fn12 The United States Supreme Court has not "squarely addressed" whether a state court's exercise of its discretion to exclude testimony violates a criminal defendant's right to present relevant evidence. Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009). Accordingly, the decision of the California Court of Appeal that the trial court's discretionary evidentiary ruling prohibiting the defense from calling an eyewitness identification did not warrant reversal of petitioner's judgment of conviction is not contrary to or an unreasonable application of clearly established federal law and may not be set aside. Id.; seealso Wright v. Van Patten, 552 U.S. 120, 126 (2008) (relief is "unauthorized" under § 2254(d)(1) when the Supreme Court's decisions "given no clear answer to the question presented, let alone one in [the petitioner's] favor," because the state court cannot be said to have unreasonably applied clearly established federal law); Anguiano v. Morales, No. C 98-4751 SI(PR), 2000 WL 630870 at *9 (N.D. Cal. May 2, 2000) (trial court's exercise of discretion under California Evidence Code § 1252 to exclude untrustworthy evidence did not violate defendant's right to present a defense).*fn13

Assuming arguendo that the state trial court erred in excluding the testimony of the eyewitness identification expert and that error violated petitioner's rights under the U.S. Constitution, petitioner must still show that the error "had a substantial and injurious effect or influence in determining the jury's verdict" and that he suffered actual prejudice, defined as a "reasonable probability" that the jury would have reached a different result but for the error. Clark v. Brown, 450 F.3d 898, 916 (9th Cir. 2006) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). SeealsoFry v. Pliler, 551 U.S. 112, 121-22 (2007) (in § 2254 habeas proceeding, the federal court must assess the prejudicial impact of constitutional error under Brecht "substantial and injurious effect" standard). Petitioner has failed to make this showing.

As explained by the California Court of Appeal, in addition to the testimony of Jessica Valdez there was significant other testimony identifying Cervantes as the shooter. In light of this other evidence, the absence of testimony from an expert on eyewitness identifications, even if it might have cast some doubt on Valdez' in-court identification of Cervantes, would not have had a significant outcome on this trial. In addition, the jury was clearly alerted to the weaknesses in Valdez' testimony through cross-examination by defense counsel and the jury instruction it received on how to evaluate eyewitness identification testimony. Under these circumstances, the decision of the California Court of Appeal that petitioner failed to show prejudice with respect to this claim is not contrary to or an unreasonable application of clearly established federal law. Accordingly, petitioner is not entitled to federal habeas relief on this claim.

D. Admission of Testimony of Gang Expert

In his next claim for relief, petitioner argues that the trial court violated his rights to due process, a fair trial, and to a jury determination on all issues when it allowed a prosecution gang expert to testify on issues of "ultimate guilt, intent, and fact issues on two separate occasions." (Pet. at 71.) Petitioner argues that the expert's testimony "consisted of, but was not limited to, powerful testimony which became tantamount to a direct opinion on petitioner's guilt on the gang allegations, gang intent (the nexus to the entire shaky prosecution theory of guilt), and accomplice liability issues." (Id. at 71-72.) He also contends that the expert's testimony removed significant questions from the jury, thereby reducing "the burden of proof." (Id. at 72.) Petitioner argues that the trial court's error was "compounded by jury arguments and a faulty gang instruction (CALJIC No. 2.50)" and resulted in prejudice. (Id.) He also argues that, to the extent his trial counsel waived this argument by failing to object at trial, counsel rendered ineffective assistance. (Id. at 73.)

The California Court of Appeal rejected petitioner's arguments in this regard, reasoning as follows:

E. Admission of Evidence-Gang Expert

Arellano contends the trial court abused its discretion in allowing the gang expert to testify on two issues of ultimate fact and intent, i.e., gang benefit from the crimes, and natural and probable consequences of a gang attack . . . . We see no grounds for reversal.

1. Gang Benefit

Arellano complains that, in direct examination of the expert, the prosecutor framed questions with specific reference to this case, rather than using hypotheticals. Thus, the prosecutor asked (1) why the expert agreed with the allegation that the crime was committed in part for gang purposes; (2) how this killing would benefit the Nortenos; (3) whether it was a personal benefit for Arellano; and (4) how the Surenos benefitted from this killing.

However, defendants did not object during trial, and the contention is therefore forfeited. (Evid. Code, § 353.) We decline the request that we consider the matter despite the forfeiture.

Arellano alternatively argues ineffective assistance of counsel for counsel's failure to object. To prevail, he must show that his counsel's performance fell below professional standards and that a more favorable result was reasonably probable absent the deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 689; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Arellano argues deficiency and prejudice are shown because the claims are meritorious, the potential for prejudice apparent and, since related objections were raised, there was no tactical reason for counsel not to object.

Arellano says section 29 prohibits an expert from offering an opinion on the ultimate question of intent, knowledge, mental state, or reasonableness. However, section 29 speaks only about an expert "testifying about a defendant's mental illness, mental disorder, or mental defect . . .," none of which was applicable here. Insofar as defendants complain the expert testified about an ultimate issue to be decided by the jury, "Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) Even assuming counsel should have objected, it is inconceivable that defendants would have obtained more favorable verdicts had the questions been framed as hypothethicals.

We see no basis for reversal regarding expert opinion ...


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