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Belardo v. K. Holland

United States District Court, E.D. California

July 11, 2017

WILBERTO BELARDO, Petitioner,
v.
K. HOLLAND, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a California state prisoner proceeding pro se with an aspplication for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed his petition on May 30, 2014 in the Northern District of California. ECF No. 1. Respondent answered the petition on November 24, 2014 and, on May 9, 2016, the case was transferred to this district. ECF Nos. 13, 18. Petitioner did not file a traverse. For the reasons that follow, the undersigned recommends that the petition be denied on the merits without an evidentiary hearing.

         BACKGROUND

         The following statement of the case is taken from the unpublished opinion of the California Court of Appeal on direct review:[1]

In February 1998, Zarate lived alone in a small trailer, from which he sold drugs, at the corner of Jackson and Cherry Streets in Dixon, California. Across the street from Zarate's trailer, about 20 to 25 feet away, Charlie Moore lived in a four-unit building. Belardo lived in Dixon with his mother, Norma Rivera; his stepfather; his girlfriend, Ellis; and his 15-year-old half brother, Bango.
On February 15, 1998, Alvaro Delatorre was visiting Zarate, his friend, while Moore hosted a barbecue party across the street. About 9:00 p.m., there was a knock at the door of Zarate's trailer.[2]The visitor gave a name that Delatorre did not remember and Zarate said it was okay to open the door. Delatorre saw a man pointing a revolver at them, accompanied by another man wearing what might have been a nylon stocking over his face. The man with the gun said, “This is a robbery. Give us the money, the jewelry, and the dope.” The man then hit Delatorre on the top of his head with the gun, cutting his scalp and leaving him dizzy and dazed. One of the men reached around Delatorre's neck and grabbed jewelry. Delatorre took out his wallet and the gunman took it from his hand.
The gunman repeated his demand for money, dope, and jewelry and Zarate said, “I ain't giving nothing up.” Delatorre heard multiple gunshots and saw that Zarate had been hit. After telling Delatorre to keep quiet, the two men left. According to Delatorre, Zarate had methamphetamine and $1, 500 on his person before the robbery. When Zarate's body was later examined, the drugs and cash were gone.
Delatorre ran to Moore's house, where the party was still in progress, and reported the incident to the 911 operator. He went back to the trailer and the police arrived a short time later. Zarate was still alive when police arrived, but was unable to communicate. His shirt had been removed and he was bleeding heavily from a bullet wound in the center of the chest. Paramedics removed Zarate from the trailer, but he died at the scene.
When police interviewed him, Delatorre described the gunman as a “Black male around five foot six” with “a muscular build, ” “round face, ” and “puffy cheeks and short hair.” Delatorre thought the second man was also African-American, based on seeing his hands and arms. During a pretrial conditional examination, held in anticipation of Delatorre's imminent deportation, he described the gunman as clean shaven, with no acne on his face, no visible tattoos, [3] and wearing a tank top. He told the police that the revolver was chrome colored.
Search of the trailer revealed a bloody shirt with a bullet hole on the bed with a spent bullet underneath it. A ballistics expert testified that the bullet was .38 caliber, typically fired from a .38 special ammunition revolver. No spent casings were found.
Zarate had a bullet entry wound in the chest and an exit wound in his back. He also had separate entry and exit wounds in his left arm. At trial, Delatorre testified that the gunman looked like one of two persons he had seen watching him and Zarate from Moore's party that night. He said that he had seen the gunman “driving around” in a black convertible Mustang about a week before the shooting. The People also presented testimony from a number of witnesses indicating that Belardo's stepbrother, Greg Felix, [4] drove a Mustang convertible and that Belardo rode in the car with Felix.[5]
When Delatorre testified at the conditional hearing, he identified Belardo as the gunman, but he was “not a hundred percent sure.” Belardo was wearing “jail clothes” and was in shackles at that hearing. At trial, Delatorre again identified Belardo as one of the two men who entered Zarate's trailer. He was about 50 percent sure.
However, on the night of the homicide, Delatorre assisted in the preparation of a computer-generated composite of the suspect.[6] As the investigation progressed, he viewed several photographic lineups that included Belardo, but he told the police that he did not recognize anyone as the assailant. On February 23, Delatorre viewed a live lineup including Belardo, but did not identify him. The investigators told Delatorre that the shooter was in the live lineup, and when he said he did not recognize anyone, they told him, “Yes, he is. He's there. Pick him out.” Delatorre felt he was being pushed into picking somebody. He then selected someone other than Belardo from the live lineup and told the investigators he was 90 percent sure.
Belardo was on parole from the California Youth Authority on February 15, 1998, and was subject to electronic monitoring, with a curfew of 10:00 p.m. He subsequently admitted a parole violation because electronic monitoring showed that he was not in his residence until 10:08 p.m. on February 15, 1998. He told police that he was at Moore's house between 7:00 and 9:00 p.m. and then walked home, a distance of about half a mile.[7] He said that when he got home he played with the dog in the back yard and denied possessing a gun.
The police searched Belardo's residence on February 17, 1998 and found no evidence connecting him to the robbery and homicide.
Belardo, Bango, Felix, and Belardo's long-time friend, Dustin Blaylock, attended Moore's barbecue. They congregated in the carport area, from which Zarate's trailer was visible. Moore's girlfriend, Lea Mitchell, testified that at some point she overheard a conversation about “jacking” someone. She did not know who made the statement.
Bango was in the carport watching Belardo and Blaylock play craps when Belardo showed Bango a .38 revolver, which he held under a towel. Bango asked why he had a gun, and Belardo responded, “In case something happens. In case something pops off.” Later that afternoon, Belardo asked Bango to hold the gun and then left the carport. Belardo returned within five minutes and took the gun back. Bango never saw the gun again and he left the party about 5:00 p.m. to meet friends.
In the evening, Belardo and Blaylock left the party and a short time later, Mitchell heard gunshots. She did not see Belardo or Blaylock again that night.
At the time of the homicide, Francisco Garcia lived next door to Blaylock and .46 miles from Zarate's trailer. About 9:00 p.m., Garcia heard sirens and saw police cars going by. Blaylock then came to Garcia's house with “a Black guy” named “Willie”[8] and asked to use the telephone. Garcia testified that he knew Willie's brother, Felix, and he had seen Willie driving around in Felix's car.[9] Blaylock and Willie appeared exhausted, as if they had been running. Willie left a short time later, but Garcia did not know how long Blaylock stayed.[10]
Bango returned to Moore's party that evening with Ellis and a friend, and, on arrival, encountered Delatorre, bleeding and seeking help. After taking Delatorre to Moore's residence to call the police, Bango and Ellis returned to Bango's house.[11]
When they arrived home, Belardo and Rivera were there. Bango asked whether Belardo had anything to do with the shooting. Belardo appeared agitated and told him to “Shut up.” Bango asked Belardo several times whether he was involved and Belardo responded by making threats. He said, “I did it once. What makes you think I won't do it again?” Bango understood that Belardo would kill him if he talked to anybody about the incident. Belardo told him, “I'll beat the ‘F' out of you” and “Don't say anything. You are trying to get me 25 to life.” Bango testified that Belardo suggested he take responsibility for the shooting, telling him that because he was a minor his punishment would be relatively light.[12] Belardo told Bango that he should expect to be questioned by the police and that Bango needed to corroborate his alibi about being in the backyard playing with the dog.
Ellis had moved in with Belardo about a month before the Zarate homicide. She testified that Belardo sold drugs and that, on his behalf, she sold drugs at school. About a week before the homicide, Ellis overheard Belardo in a telephone conversation “about the guy in the trailer that sold drugs.” Belardo said he was “considering robbing” the man. She did not know with whom Belardo was speaking.
On the night of the homicide, when she and Bango returned home after trying to go to Moore's party, Belardo was home, shaving, and “shaking and scared.” They started talking about the shooting. Ellis said that Belardo wanted Bango to confess to the shooting, saying he was only 15 years old and would not “do very much time.” Belardo told Ellis “he didn't go there to do that. He went there to rob him and ended up shooting a guy; probably took a guy's life. It wasn't worth very much. They didn't even get very much money out of it.” Belardo said that Blaylock was with him.
Ellis was scared because she was dating Belardo and living in his house. Belardo and Ellis began taking measures to “stay out of the view.” They hid in a crawl space in Rivera's closet and Belardo would hide in the trunk of their vehicle as they were driving. Belardo told Ellis that, when questioned by the police, she should say that he was in the back yard that night playing with the dogs because the back yard was far enough from the house to set off his ankle monitor.
Ellis testified that a day or two after the shooting, Rivera asked Ellis to accompany her and they drove to Lake Berryessa. Rivera handed Ellis a revolver, which she recognized as belonging to Belardo, and she threw it into the water from the edge of a cliff.[13]
After Ellis disposed of the gun, Belardo told her he would harm her or her family if she “confessed.” Ellis later married Belardo. They moved first to Florida and then to Tennessee, where Belardo continued to threaten her, saying that with what she knew about the shooting, she “could really put him in jail for a long time, so he said it was all on me.” He told her that no one would ever find her body, and her family would not know that she was gone. On one occasion he held a gun to her head and beat her severely. Ellis eventually left Belardo and had no contact with him after 2002.
In 2009, Belardo was incarcerated in Tennessee and was disciplined for adding some dreadlocks to his short hair. James Russell, an employee at the Tennessee correctional facility, testified that Belardo told him he was facing a murder charge in California and “he wanted to change how he looked.”

People v. Belardo, No. A133128, 2013 Cal.App. Unpub. LEXIS 7940, 2013 WL 5845121, *1-5 (Cal.Ct.App. Oct. 31, 2013) (unpublished).

         I. Procedural Background

         A. Trial Court Proceedings

         On May 10, 2010, the Solano County District Attorney filed an amended information charging petitioner with murder during the commission of robbery pursuant to California Penal Code §§ 187(a)/190.2(a)(17) (count 1) and assault with a firearm pursuant to California Penal Code § 245(a)(2) (count 2). 1 CT 275-76.[14] The information alleged that in connection with count 1, petitioner personally discharged a firearm causing death pursuant to California Penal Code §§ 12022.5(a)(1) & 12022.53(b)) and that he committed the murder while engaged in robbery pursuant to California Penal Code § 190.2(a)(17). Id. The information alleged in connection with count 2 that he personally used a firearm within the meaning of California Penal Code § 12022.5. Id.

         On January 18, 2011, count 2 was dismissed with the prosecutor's concurrence. 2 CT 359. On April 20, 2011, the parties waived a jury trial, and petitioner agreed to proceed by way Lake Berryessa until 2008. The investigators then searched the area of the lake, and surrounding of court trial. 2 CT 433. On May 12, 2011, the trial court convicted petitioner of first degree murder and found true the enhancements and special circumstances allegation. 3 CT 620. On August 18, 2011, the trial court denied the motion for a new trial and sentenced petitioner to life in prison without the possibility of parole and to a term of 25 years to life for the personal discharge of a firearm causing death. 3 CT 708-712. The trial court stayed sentence on the remaining enhancements. Id.

         B. Direct Appeal

         On August 24, 2011, petitioner appealed the judgment to the California Court of Appeal. 3 CT 715-717. On October 31, 2013, the California Court of Appeal affirmed the conviction. Belardo, 2013 WL 5845121, *15; Resp't Ex. C.

         On December 9, 2103, petitioner filed a petition for review in the California Supreme Court. Resp't Ex. D. On February 11, 2014, the California Supreme Court denied the petition for review. Resp't Ex. E.

         C. Federal Habeas Proceedings

         On May 30, 2014, petitioner filed the instant petition in the federal district court for the Northern District of California. ECF No. 1. Respondent filed an Answer. ECF No. 13. Although given the opportunity to do so, petitioner did not file a Traverse. The petition was transferred to this court on May 9, 2016. The matter is fully briefed and ripe for adjudication.

         STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

         28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), provides in relevant part as follows:

(d) 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.

         The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 131 S.Ct. 770, 785 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). “The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id. at 785.

         The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established Federal law, ” but courts may look to circuit law “to ascertain whether…the particular point in issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013).

         A state court decision is “contrary to” clearly established federal law if the decision “contradicts the governing law set forth in [the Supreme Court's] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

         Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The question at this stage is whether the state court reasonably applied clearly established federal law to the facts before it. Id. In other words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399. Where the state court's adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to “the state court's actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court denies a claim on the merits but without a reasoned opinion, the federal habeas court must determine what arguments or theories may have supported the state court's decision, and subject those arguments or theories to § 2254(d) scrutiny. Richter, 131 S.Ct. at 786.

         DISCUSSION

         Petitioner asserts the following claims: (1) the trial court failed to obtain a separate waiver of trial by jury on the special circumstance allegation, which would determine whether or not he could ever be eligible for parole; (2) the trial court should not have admitted the testimony of Ellis and Bango, because such testimony was uncorroborated and the witnesses were liable for prosecution of the murder of Zarate; (3) material exculpatory evidence was not provided to petitioner before trial, depriving him of due process under Brady v. Maryland, 373 U.S. 83 (1963); (4) because petitioner was brought to trial in 2011 for a crime that occurred in 1998, he was prejudiced by the delay in prosecution; (5) the trial court erred in denying a mistrial because of the Brady violation; (6) because of the alleged Brady violation, petitioner's waiver of trial by jury on the issue of guilt was neither knowing nor intelligent; and (7) the trial court erred in denying petitioner a new trial because of new evidence discovered after trial. ECF No. 1 at 14-78.[15]

         I. Claim One: Waiver of Right to Trial by Jury on Special Circumstance Allegation

         A. Petitioner's Allegations and Pertinent Record

         Petitioner alleges that the failure to obtain a separate express and personal waiver of his right to a jury trial on the special circumstances allegation violated his Sixth Amendment rights. ECF No. 1 at 14-20.

         The state appellate court provided the following factual background for this claim:

On April 20, 2011, prior to the commencement of jury selection, Belardo's counsel stated that Belardo was prepared to waive trial by jury. The court gave the People time to consider waiving jury trial and, after a recess, the People stated their willingness to waive as well. The court instructed Belardo's counsel to conduct a voir dire of Belardo, which proceeded as follows: “[Y]ou have a right to have a jury trial, a jury of 12 people, listen to this case. By waiving that right, that means that you will not have a jury trial, that the person who is going to be judging the facts and credibility of the case will be the judge alone. [¶] You have a right to have the jury trial. [¶] Are you willing to waive it?” Belardo answered in the affirmative and his counsel announced, “Defense waives.” The court asked Belardo, “You understand, when you say, ‘you waive, ' that means you are giving up that right?” Belardo answered, “Yes, sir.” The court then asked, “And I'm the one that makes the decision, guilty or not guilty. Do you understand that?” Belardo again answered, “Yes, sir.” Finally, the court asked, “And you're prepared to give up that right and have me do that?” Again, Belardo answered, “Yes, sir.” The court then accepted the jury waiver.

Belardo, 2013 WL 5845121, *6.

         B. The Clearly Established Federal Law

         “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The “statutory maximum” for Apprendi purposes is the maximum sentence a judge could impose based solely on the facts reflected in the jury verdict or admitted by the defendant; that is, the relevant “statutory maximum” is not the sentence the judge could impose after finding additional facts, but rather is the maximum he or she could impose without any additional findings. Blakely v. Washington, 542 U.S. 296, 303-04 (2004).

         More recently, the Supreme Court has held that this requirement applies to findings which increase the mandatory minimum. In Alleyne v. United States, the majority wrote:

Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.

133 S.Ct. 2151, 2155 (2013).

         The right to a jury trial is waivable, as long as the waiver includes the consent of the government counsel, the sanction of the court, and the “express and intelligent consent of the defendant.” Patton v. United States, 281 U.S. 276, 312 (1930), modified on other grounds by Williams v. Florida, 399 U.S. 78, 92 (1970). C. The State Court's Ruling Petitioner raised this claim on direct appeal. The California Court of Appeal ruled as follows:

Belardo contends that the record does not contain a knowing and intelligent waiver of the right to a jury determination of the special circumstance allegation that the murder of Zarate took place during commission of a robbery (§ 190.2, subd. (a)(17)(A)). Without such a waiver, he argues, we must reverse the finding on the special circumstance and adjust his sentence to life in prison with the possibility of parole.
Section 190.4, subdivision (a), expressly provides the procedure for reaching findings on special circumstance allegations at bench trials: “If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court.” Our Supreme Court has construed this provision to mean that “an accused whose special circumstance allegations are to be tried by a court must make a separate, personal waiver of the right to a jury trial.” (People v. Memro (1985) 38 Cal.3d 658, 704 (Memro), overruled on other grounds by People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) “Assuming an accused desires to waive his right to a jury as to both the guilt and special circumstance determinations, the trial court could satisfy section 190.4, subdivision (a)'s requirement by taking separate waivers as to each before commencement of trial.” (Memro, at p. 704.)
In People v. Diaz (1992) 3 Cal.4th 495 (Diaz), the defendant was advised: “ ‘[Y]ou'll be giving up that right to have the jury in two different functions. First of all, first function is to decide the question of your guilt or innocence. Then the second function, similarly, . . . you would have 12 jurors who must unanimously agree as to the punishment . . . . And you'll be giving up that right.'” (Id. at p. 564.) The defendant answered, “‘I'm giving it up'” and acknowledged his understanding that the waiver applied “to ‘both phases . . . of the special circumstances case.'” (Ibid.) The Diaz court explained that under Memro, “a waiver of a defendant's right to have a jury determine the truth or falsity of alleged special circumstances may not be accomplished by counsel's stipulation. The waiver must be made by the defendant personally, and must be ‘separate'-that is, if the defendant is to be deemed to have waived the right to jury trial on both guilt and special circumstances, the record must show that the defendant is aware that the waiver applies to each of these aspects of trial.” (Diaz at p. 565.) Applying this rule, the court concluded: “In this case, the trial court explained to defendant that the waiver of his right to trial by jury applied to all aspects of his special circumstances case, from beginning to end. Defendant also told the court that he had discussed the matter ‘quite thoroughly' with his counsel. Although the trial court's admonition was not a model of clarity, we believe it was sufficient to advise defendant that his waiver, which included all aspects of guilt and penalty, included within it a waiver of the right to jury trial on the truth or falsity of the special circumstance allegation.” (Ibid.)
The defendant in People v. Wrest (1992) 3 Cal.4th 1088 (Wrest) was advised that his right to a jury trial included “‘any other special allegations that are charged in this particular case.'” (Id. at p. 1103.) He was also told that if tried by a jury, all 12 jurors would have to agree on the special circumstances. (Ibid.) The defendant then waived his right to a jury trial as to the “‘special allegations that we've already talked about '” and agreed that he did not “‘want a jury trial on the issue of guilt or the special circumstances.'” (Id. at p. 1104.) The court held that the record “reflects an express and personal understanding and waiver of appellant's right to jury trial on the special circumstance allegations. The mere fact that the prosecutor's questions combined issues of guilt, special circumstances, and enhancements did not vitiate the waiver.” (Ibid.) The court explained that Memro “does not require . . . a waiver to be taken in accordance with any particular procedure.” (Id. at p. 1105.)
In People v. Weaver (2012) 53 Cal.4th 1056 (Weaver), the Supreme Court again rejected a defendant's contention that Memro required a finding that his waiver of a jury trial was not a waiver of a jury finding on the special circumstance allegation: “In this case, the record demonstrates that defendant's jury waiver included the special circumstance allegations. The written waiver regarding guilt that defendant and his counsel signed did not specifically reference the special circumstance allegations. But in the oral proceedings, the court advised defendant that ‘a waiver of jury is a waiver of jury on all of the triable issues before the court.' It explained to defendant twice that these issues included the special circumstance allegations. Additionally, the written waiver as to penalty, which defendant and his counsel also signed, expressed defendant's desire to waive a penalty jury if, at the guilt phase, he was ‘found guilty of first degree murder and a special circumstance is found true.' . . . Defendant understood and intended his waiver to include both guilt and special circumstances as well as, if it came to that, the penalty determination. To require more, or to mandate a different procedure, would exalt form over substance.” (Id. at p. 1075.)
Diaz, Wrest, and Weaver all had records demonstrating that the defendant was aware that his waiver applied both to the issue of guilt and to the issue of the truth of a special circumstance. In each case, during colloquy with the court, the special circumstance aspect was specifically mentioned, or the defendant was informed that his waiver applied to all triable issues and the written waiver noted the special circumstance aspect of the trial. In Belardo's case, no written waiver was executed and in the colloquy with the court, there was no mention of the special circumstance aspect of the charges. Belardo's attorney did obtain Belardo's agreement that “the person who is going to be judging the facts and credibility of the case will be the judge alone, ” but this does not demonstrate (as a reference to “all triable issues” might have) that Belardo understood his waiver to apply not only to the issue of guilt, but also to the special circumstance.
We conclude that the record does not demonstrate that Belardo was aware that his waiver applied to both guilt and the special circumstance allegation. The Diaz test is not satisfied and it was error for the court, and not a jury, to make a finding on the special circumstance.
Belardo argues that “[p]rejudice in a failure-of-advisement context is measured by whether the defendant was aware of his constitutional rights.” None of the cases he cites for this proposition involves the separate waiver of a right to a jury trial on a special circumstance allegation.[16] Memro made clear that an error in obtaining a separate waiver to a jury trial on a special circumstance allegation does not require automatic reversal-prejudice must be shown: “In this case, the record is clear that the trial court erred in failing to take a personal jury waiver on the multiple murder special circumstance allegation. However, since the judgment must be reversed on other grounds, it is unnecessary to determine whether appellant was prejudiced by that error. The question as to what standard of prejudice should be applied in this situation is left for another day.”[17] (Memro, supra, 38 Cal.3d at pp. 704-705, fn. omitted.)
Here, the evidence that Zarate was shot during the course of, at a minimum, an attempted robbery, was uncontroverted. Defense counsel argued that there was no evidence that the two assailants took anything. However, Delatorre testified without equivocation that the gunman told Zarate, “This is a robbery. Give us the money, the jewelry, and the dope.” Delatorre also stated that his wallet was taken, but even if the robbery had not been completed, there was no question that the victim was shot during an attempt to rob him and Zarate. Moreover, Ellis testified that before the homicide, Belardo discussed robbing “the guy in the trailer” in a telephone conversation, and after the homicide he told her that “[h]e went there to rob him.”
The error in failing to obtain a separate waiver on the special circumstance allegation from Belardo was harmless under any standard of prejudice. Once having determined that Belardo murdered Zarate, no reasonable trier of fact could have failed to find that the murder occurred in the commission of a robbery. (See People v. Simpson (1991) 2 Cal.App.4th 228, 236-237 [concluding the even if there had been error in failing to obtain a separate waiver to a trial by jury on a special circumstance allegation, that error was harmless because of overwhelming evidence supporting the special circumstance allegation].)

Belardo, 2013 WL 5845121, *6-8.

         D. Objective Reasonableness Under § 2254(d)

         As mentioned above, petitioner contends that the record does not contain a knowing and intelligent waiver of the right to a jury determination of the special circumstance allegation that the murder of Zarate took place during commission of a robbery. ECF No. 1 at 14. Without such a waiver, he argues, the finding on the special circumstance must be reversed and his sentence adjusted to life in prison with the possibility of parole. Id.

         Respondent, citing McMillan v. Pennsylvania, 477 U.S. 79, 82 (1986), argues that relying on judicially-found facts to impose a greater mandatory minimum sentence does not implicate the Sixth Amendment. This position is inconsistent, however, with the Supreme Court's decision in Alleyne, supra. 133 S.Ct. at 2155. In Alleyne, the Supreme Court noted that Apprendi “prompted questions about the continuing vitality, if not validity of McMillan's holding that facts found to increase the mandatory minimum sentence are sentencing factors and not elements of the crime.” Id. at 2157. The Alleyne decision went on to hold that “there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum [sentence].” Id. at 2163.

         The state court denied the claim on harmless error grounds. Accordingly, this court turns to the question of whether the failure to present the relevant issue to the jury - whether the murder occurred during the commission of a robbery - was harmless error. See Washington v. Recuenco, 548 U.S. 212, 222 (2006) (holding that Blakely/Apprendi errors are subject to harmless error analysis). In conducting a harmless error analysis on an Apprendi claim, relief is appropriate only if the Court is “in ‘grave doubt' as to whether a jury would have found the relevant aggravating factors beyond a reasonable doubt.” Butler v. Curry, 528 F.3d 624, 648 (9th Cir. 2008). As noted above, the court of appeal found that “no reasonable trier of fact could have failed to find that the murder occurred in the commission of a robbery.” Belardo, 2013 WL 5845121 at *8. This finding is supported by the evidence presented at trial. An eye witness to the crime testified that the victim was directed to “[g]ive us the money, the jewelry, and the dope.” 1 RT at 162.[18] That witness also testified that his wallet was taken and that, prior to being shot, the victim stated “I ain't giving nothing up.” Id. at 165. Additionally, the petitioner's then-girlfriend testified that she overheard a phone conversation in which petitioner talked about the victim selling drugs and the possibility of robbing him. 2 RT at 463. This witness also testified that she spoke with petitioner after the shooting and he told her that he had gone to the victim's trailer to rob him. Id. at 474. Based on the foregoing, the court is not in “grave doubt” as to whether the jury would have found that the murder occurred in the commission of a robbery. This claim accordingly should be denied.

         II. Claim Two: Admission of ...


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