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Sanders v. Arnold

United States District Court, N.D. California

July 26, 2017

LOUIS SANDERS, Petitioner,
v.
ERIC ARNOLD, Warden, [1]Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND DENYING CERTIFICATE OF APPEALABILITY

          YVONNE GONZALEZ ROGERS, United States District Judge

         Petitioner Louis Sanders, a state prisoner currently incarcerated at California State Prison -Solano, brings the instant pro se habeas action under 28 U.S.C. § 2254 to challenge his 2011 conviction and sentence rendered in the Alameda County Superior Court in connection with two shooting deaths in September 2007. On February 7, 2011, Petitioner and his co-defendant, Marrin Hughes (“Hughes”), were each convicted of two counts of first degree murder as well as one count of possession of a firearm by a felon. 2CT 329-337, 340-343, 553-560. The jury also found true multiple-murder and firearm-use allegations. 2CT 553-560. According to the state appellate court, “[s]everal witnesses placed [Petitioner] at the scene and identified him as the shooter of the first victim, but only one witness, a 13-year-old boy, connected Hughes to the murders.” People v. Hughes, et al, No. A131963, 2013 WL 960130, *1 (Cal.Ct.App. Mar. 13, 2013) (brackets added). The court further added: “The boy, who was well-acquainted with the defendants and the victims, testified he saw Hughes emerge to gun down the second victim immediately after [Petitioner] shot the first victim.” Id. The operative petition in this action is the amended petition, which raises thirteen claims. Dkts. 10 at 5; 10-1 at 15-41, 126-202, 209-210.[2] Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES all claims in the amended petition for the reasons set forth below.

         I.BACKGROUND

         A. Factual Background

         The California Court of Appeal handled the direct appeals filed by Petitioner and Hughes, and in an unpublished opinion described the relevant facts as follows:

The evidence presented at trial demonstrated that in 2007, victim Jabari Harris regularly sold drugs in the vicinity of 45th Avenue and Bancroft Avenue in Oakland, working with three associates. One was victim Luis Coria, the second was in jail at the time of the murders, and the third was a friend of Coria. Harris attempted to monopolize the sale of drugs in the area, regularly confronting other would-be sellers who were not a part of his team. One witness described Harris as “real aggressive” and “want[ing] to fight” when he confronted others attempting to sell drugs in the neighborhood without his approval.
Defendants are longtime acquaintances and, perhaps, cousins. At some time in 2007, each began selling drugs in the area claimed by Harris. During the month prior to the killings, Harris had found Hughes attempting to sell drugs in the area “two or three times.” On those occasions, Harris and Hughes “exchanged words.” Although Hughes was verbally defiant, when confronted he left the area rather than challenge Harris. In the same time period, Harris had similar confrontations with Sanders.
Three witnesses told police that, on September 11, 2007, they saw Sanders argue with and then kill Harris, shooting him once in the head.[FN 3]
[FN: 3] Two of these witnesses recanted their statements to police at trial, but the statements were admitted as evidence.
Only one witness tied Hughes to the killings. S.C. was 13 years old at the time and lived with his mother and sisters in a second-floor apartment on Bancroft Avenue. S.C. regarded Harris as a big brother, seeing him every day, spending time with him, and receiving small amounts of money from him. S.C. was familiar with defendants from seeing them in the neighborhood almost every day for “months” before the killings, and Hughes's brother was dating S.C.'s mother at the time. Both defendants had visited S.C.'s home and were free to come and go from the apartment. S.C. was aware of regular “conflict or friction” between Harris and Sanders. He also watched Harris confront Hughes a few days before the killings and tell Hughes he “couldn't be out there on the block no more.”
On the day of the killings, SC arrived home from school between 4:30 and 5:00 p.m. S.C. stopped to talk to Sanders and two other[] person[s] on the corner across the street from his apartment. As they spoke, Sanders left, “went to the side of a building, ” and returned with a gun. When one of the others present asked Sanders if he would sell the gun, Sanders declined, saying he “needed it.” After a few minutes, SC went home. Between 5:30 and 6:00 p.m., S.C, watching from the balcony of the apartment, saw Harris arrive in his car. S.C. went outside and they walked to the store together. They returned to the apartment building between 6:30 and 7:00 p.m. Harris told S.C. to go inside because it was getting late, and S.C. complied. Soon after, Sanders walked into S.C.'s mother's apartment, “told everybody to stay in the house and don't come outside, ” pulled the gun from his waistband, and left.
Two minutes later, SC went onto the balcony of the apartment. Looking down, he saw Sanders and Harris arguing in front of the apartment. Coria was nearby. As part of his testimony, SC marked the location of these persons on a photograph. The photograph, taken from the vantage point of the balcony, shows a fence alongside a sidewalk, with an open gate in the fence. Harris and Sanders were standing on the sidewalk, just outside the gate. Coria was a few feet away, also on the sidewalk.
After a few minutes of argument, Harris answered his cell phone and turned away from Sanders. At that instant, from six feet away, Sanders pulled out his gun and shot Harris. Sanders immediately walked to the fallen Harris and began rummaging through his pockets. Simultaneously, SC noticed Hughes appear from the side of the apartment building, inside the fence. He was moving toward the open gate, in the general direction of Coria, with gun in hand. Hughes shot Coria, who had begun running away, twice in the back. After Coria fell, Hughes moved closer to him, fired more shots, and ran off.[FN 4] When Coria collapsed, he was lying in the street, only a few feet from Harris's position on the sidewalk.
[FN 4:] In discussing the evidence against him, Hughes stresses that the forensic medical examiner concluded all of Coria's gunshot wounds were inflicted from the front or side, in conflict with S.C.'s testimony. S.C.'s testimony was bolstered, however, by the police discovery of several bullet casings inside the fence, in the location from which, SC testified, Hughes initially opened fire. There was no testimony suggesting Sanders was in this location that night.
The jury convicted both defendants on all counts and found true all allegations, including the special circumstance allegation. They were sentenced to life imprisonment without the possibility of parole.

Hughes, 2013 WL 960130, * 1-3.

         B. Procedural History

         Petitioner and Hughes appealed the judgment to the California Court of Appeal. In an unpublished opinion, filed on March 13, 2013, the state appellate court affirmed the judgment. Id. at *19; Resp't Ex. 13. The state appellate court further ordered each defendant's terms of life imprisonment to run concurrently rather than consecutively, granted each custody credits, and affirmed the judgments of conviction in all other respects. See Id. On June 12, 2013, the California Supreme Court denied Petitioner's and Hughes's petitions for review. Resp't Ex. 16.

         On August 8, 2014, Petitioner filed a petition for a writ of habeas corpus in the instant matter, along with a motion to stay the petition while he exhausted his state court remedies as to some of his claims.[3] Dkts. 1, 2. On August 29, 2014, the Court granted Petitioner a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Dkt. 5.

         On August 5, 2014, Petitioner filed a state habeas petition in Alameda County Superior Court, which was denied on October 3, 2014. See Resp't Ex. 18 (second to last attachment thereto).

         On October 27, 2014, Petitioner filed a state habeas petition in the California Court of Appeal, which was denied on November 5, 2014. See Resp't Exs. 17, 18 (last attachment thereto).

         On November 24, 2014, Petitioner filed a state habeas petition in the California Supreme Court, which was denied on February 11, 2015. See Resp't Exs. 18, 19.

         On April 10, 2015, Petitioner filed his amended federal petition, which again is the operative petition in this matter. Dkt. 10. On April 17, 2015, this Court issued an order lifting the stay and directing Respondent to show cause why the writ should not be granted. Dkt. 11. Respondent has filed an Answer to the amended petition, and Petitioner has filed a Traverse. Dkts. 20, 21. The matter is fully briefed and ripe for adjudication.

         II. LEGAL STANDARD

         A federal court may entertain a habeas petition from a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         A state court decision is “contrary to” Supreme Court authority, that is, falls under the first clause of section 2254(d)(1), only if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application of Supreme Court authority, falling under the second clause of section 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but “unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. The federal court on habeas review may not issue the writ “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must be “objectively unreasonable” to support granting the writ. Id. at 409.

         Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, “a determination of a factual issue made by a State court shall be presumed to be correct, ” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         Even if constitutional error is established, habeas relief is warranted only if the error had a “substantial and injurious effect or influence in determining the jury's verdict.” Penry v. Johnson, 532 U.S. 782, 795-96 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).

         On federal habeas review, AEDPA “imposes a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). In applying the above standards on habeas review, this Court reviews the “last reasoned decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Specifically, when there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Thus, a federal court will “look through” the unexplained orders of the state courts rejecting a petitioner's claims and analyze whether the last reasoned opinion of the state court unreasonably applied Supreme Court precedent. See Ylst, 501 U.S. at 804-06; LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). The last reasoned decision in this case is the state appellate court's unpublished disposition issued on March 13, 2013, in which that court considered the first eleven claims from the amended petition. See Resp't Ex. 13; Hughes, 2013 WL 960130, *1-19.

         Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011). Here, Petitioner presented the remaining two ineffective assistance of counsel (“IAC”) claims (Claims Twelve to Thirteen) in his amended petition to the California Supreme Court in a state habeas petition, which the state supreme court summarily denied. See Resp't Exs. 18, 19. As such, these claims may be reviewed independently by this Court to determine whether that decision was an objectively unreasonable application of clearly established federal law. Plascencia v. Alameida, 467 F.3d 1190, 1197-98 (9th Cir. 2006) (“Because there is no reasoned state court decision denying this claim, we ‘perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable.'”) (citation omitted); see 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.”). “[W]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011).

         III. DISCUSSION

         A. Insufficiency of Evidence as to Conviction for Aiding and Abetting Murder of Coria (Claim One)

         Petitioner contends that insufficient evidence supported his conviction for aiding and abetting the murder of Coria. Dkts. 10 at 5; 10-1 at 15, 126-138.

         1. State Court Opinion

         The state appellate court described the factual background on this claim and rejected it as follows:

While neither defendant challenges the sufficiency of the evidence to support his conviction of the murder he was accused of committing personally, each contends the evidence was insufficient to convict him as an aider and abettor of the other defendant's killing.
“Principals include those who ‘aid and abet' in the ‘commission of a crime.' [Citation.] ‘Aider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea.' [Citation.] We have defined the required mental states and acts for aiding and abetting as: ‘(a) the direct perpetrator's actus reus-a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea-knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus-conduct by the aider and abettor that in fact assists the achievement of the crime.'” (People v. Thompson (2010) 49 Cal.4th 79, 116-117.) “[A]n aider and abettor must act ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.] In other words, an aider and abettor of a specific intent crime shares the perpetrator's specific intent when he or she knows of the perpetrator's criminal purpose and aids, promotes, encourages, or instigates the perpetrator with the intent of encouraging or facilitating the commission of the crime.” (People v. Houston (2012) 54 Cal.4th 1186, 1224.) To incur aider and abettor liability, the defendant's knowledge of the intent of the perpetrator and his or her own intent to assist must be formed before or during the commission of the crime. (People v. Williams (1997) 16 Cal.4th 635, 675.)
“‘In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we “examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-evidence that is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence .... “[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness's credibility.'” (People v. Houston, supra, 54 Cal.4th at p. 1215.) “Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.] ‘Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.'” (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
Both defendants argue there is no evidence to support a finding they were aware of each other's intent prior to the killings. While we agree there is no direct evidence of their knowledge, there was sufficient circumstantial evidence to allow the jury to conclude beyond a reasonable doubt that defendants were acting according to a preexisting plan to cooperate in the killing of Harris and Coria. The defendants were longtime acquaintances, and both had suffered harassment in their attempts to sell drugs in the neighborhood of 45th Avenue and Bancroft Avenue by Harris's aggressive defense of his claimed territory.[FN 6] There was direct evidence Sanders had formed the intent to shoot Harris well before he confronted him on the sidewalk. The conversation in which Sanders said he needed his gun occurred over an hour prior to the killing. Sanders's warning to the occupants of S.C.'s mother's apartment just prior to the shooting confirmed that intent. Sanders then shot Harris in plain view of Harris's colleague, Coria, and immediately bent over and searched Harris's pockets, apparently unconcerned about the prospect of retaliation from Coria. Instantly after Sanders shot Harris, Hughes came from a relatively hidden location, yet near an open gate, well-positioned to shoot Coria as he was running away. To allow such a prompt reaction, Hughes's gun must have been loaded and ready for firing as Sanders and Harris argued.
[FN 6:] We agree with defendants there was no evidence to suggest they were dealing drugs in concert. There was evidence, however, that both had been frustrated at times by Harris's attempts to monopolize the drug trade in the neighborhood.
If one accepts S.C.'s testimony, which was “reasonable, credible and of solid value, ” any interpretation of the evidence other than concerted action was implausible. To find defendants were acting independently, the jury would have had to conclude Hughes coincidentally happened to be standing behind the fence with a loaded gun in his hand when Sanders began to argue with Harris. Unless Hughes was anticipating trouble between Sanders and Harris, there was no reason for him to have his gun prepared for firing, let alone to be standing in a comparatively hidden location near the two arguing men. Given the speed with which he reacted to the Harris shooting, the conclusion is nearly inescapable that Hughes was anticipating it.
Hughes also argues there was no evidence to establish an act on his part to assist Sanders in killing Harris. As suggested above, however, the jury could have concluded Hughes placed himself behind the fence, gun loaded and ready, to make sure Coria did not interfere in the killing, retaliate against Sanders afterward, or serve as a witness to the killing. In turn, Sanders's killing of Harris allowed Hughes to act aggressively against Coria without concern for interference from Harris.
Sanders claims the evidence shows the shootings were spontaneous and unrelated, nothing more than “an outburst of shootings amidst a group of mostly armed and intoxicated friends and associates all involved with drugs, including an apparent bully engaged in another outburst.” As discussed above, however, Sanders's conduct prior to the killing suggested his shooting of Harris was anything but spontaneous, and Hughes's positioning and his quick response to the Harris shooting also defeat the conclusion his shooting of Coria was unrelated to Sanders's crime.
In arguing for an absence of evidence of prior intent, Sanders relies heavily on Juan H. v. Allen (9th Cir.2005) 408 F.3d 1262 (Juan H.). As our Supreme Court has characterized Juan H., “the defendant, a juvenile, was at home with his family when someone fired two shots into the trailer in which he lived. [Citation.] An hour and a half later, the defendant and his brother confronted two men with whom they had a history of conflict at the trailer park, and who were associated with a rival gang. [Citation.] The defendant's brother asked the two men whether they had fired the shots, and the men replied they knew nothing about the incident. [Citation.] The defendant's brother then pulled out a shotgun and fired at both men, killing one of them. [Citation.] [¶] The Ninth Circuit granted Juan H.'s federal petition for writ of habeas corpus, ruling that the record contained insufficient evidence to support the conclusions that Juan H. knew his brother planned to commit the first degree murders or that Juan H. acted in a way intended to encourage or facilitate the killings. [Citation.] The court further held that, even assuming the element of knowledge, the record contained no evidence that Juan H. did or said anything before, during or after the shooting from which a reasonable fact finder would infer a purpose to aid and abet in the murders. [Citation.] Specifically, the court held no reasonable fact finder could conclude that by standing, unarmed, behind his brother, Juan H. provided ‘backup, ' in the sense of adding deadly force or protecting his brother, in a deadly exchange.” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 296-297.)
In contrast to Juan H., there was ample circumstantial evidence here, as discussed above, from which the jury could conclude the defendants were aware of each other's intent prior to the shootings. Further, they could readily be found to have provided “backup, ” each eliminating a potentially deadly threat to the other.
Finally, Sanders argues the evidence was insufficient to demonstrate he harbored the specific intent to kill Coria necessary to support a finding of multiple murder special circumstances. For the reasons discussed above, the evidence was sufficient to demonstrate the necessary intent.

Hughes, 2013 WL 960130, *3-5 (footnotes 5 and 7 omitted; footnote 6 in original).

         2. Applicable Federal Law

         The Due Process Clause “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). A state prisoner who alleges that the evidence in support of his state conviction cannot be characterized fairly as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim, which, if proven, entitles him to federal habeas relief. Jackson v. Virginia, 443 U.S. 307, 321, 324 (1979).

         A federal court reviewing a state court conviction collaterally does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). Nor does a federal habeas court in general question a jury's credibility determinations, which are entitled to near-total deference. Jackson, 443 U.S. at 326. If confronted with a record that supports conflicting inferences, a federal habeas court “must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. The federal court “determines only whether, ‘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.'” Payne, 982 F.2d at 338 (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. Jackson, 443 U.S. at 324.

         The Supreme Court has emphasized that “Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam). In reviewing habeas petitions, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Id. (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)). Thus, after AEDPA, a federal habeas court applies the standards of Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). To grant relief, a federal habeas court must conclude that “the state court's determination that a rational jury could have found that there was sufficient evidence of guilt, i.e., that each required element was proven beyond a reasonable doubt, was objectively unreasonable.” Boyer v. Belleque, 659 F.3d 957, 965 (9th Cir. 2011).

         Sufficiency of the evidence claims are reviewed with reference to the substantive elements of the criminal offense as defined by the state law. Jackson, 443 U.S. at 324 n.16.

         3. Analysis

         Petitioner has failed to demonstrate that the state appellate court's determination was an unreasonable application of Supreme Court authority. The state appellate court correctly noted that an abundance of evidence existed supporting Petitioner's conviction as an aider and abettor to Coria's murder.

         As mentioned above, the state appellate court noted that the intent element for aiding and abetting liability under California law requires “knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends . . . .” Hughes, 2013 WL 960130, *3. The court found “sufficient circumstantial evidence” in the record that Petitioner had such knowledge and intent. Id. at *4. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Petitioner foresaw Hughes's deliberate and premeditated shooting of Coria. Thus, the state appellate court reasonably found that Petitioner and Hughes were “acting according to a preexisting plan to cooperate in the killing of Harris and Coria.” Id. The evidence displayed that Harris and Coria were in a turf war over illegal drug sales with Petitioner and Hughes, who were “longtime acquaintances.” Id. The evidence also demonstrated that Petitioner and Hughes planned the shootings beforehand and acted in concert to eliminate their competition. Both men armed themselves and went to an area where Harris and Coria were located, with Hughes waiting in a “relatively hidden location” nearby. Id. Before the shooting, Petitioner warned his friends to stay inside their apartment, which overlooked the murder scene. After Petitioner shot Harris in Coria's presence, he began rifling through Harris's pockets, apparently unconcerned that Coria-Harris's associate-had just witnessed the murder and might try to attack him or escape. Within seconds of Petitioner shooting Harris, Hughes came out of his hiding spot and shot Coria as he tried to flee. Petitioner's conduct demonstrates he had prior knowledge that Hughes would shoot Coria after Petitioner shot Harris, and that Petitioner intended to assist Hughes in killing Coria by killing Harris first. Based on this evidence, a rational juror could have found the requisite intent to support the finding that Petitioner was guilty as an aider and abettor of Coria's murder.

         The state appellate court further found unavailing Petitioner's argument relating to the insufficiency of the evidence as to the multiple-murder special circumstance allegation. Id. at *5. For the same reasons outlined above, the state appellate court determined that the evidence was sufficient to demonstrate Petitioner harbored the specific intent to kill Coria necessary to support a finding of a multiple murder special circumstance. Id.

         In sum, viewing the evidence in the light most favorable to the prosecution, Petitioner has failed to show that no rational trier of fact could have found proof supporting Petitioner's conviction as an aider and abettor to Coria's murder. Jackson, 443 U.S. at 324.

         The Court finds objectively reasonable the state appellate court's rejection of Petitioner's due process claim alleging insufficient evidence supporting his conviction for aiding and abetting in the murder of Coria. 28 U.S.C. § 2254(d)(1). Accordingly, Petitioner is not entitled to habeas relief on this claim, and Claim One is DENIED.

         B. Right to Confrontation - Bruton[4] and Crawford[5] Error (Claim Two)

         Petitioner contends that his Sixth Amendment right to confront a witness against him-or in this case, not a witness but his co-defendant Hughes-was violated when the trial court admitted a statement by Hughes and refused to redact Petitioner's name. Dkt. 10-1 at 16-17. In support of this proposition, he cites Bruton v. United States, 391 U.S. 123, 126, 135-36 (1968) and People v. Aranda, 63 Cal. 2d 518');">63 Cal. 2d 518, 530 (1965). Petitioner claims the unredacted statement by Hughes implicated Petitioner as a perpetrator and the limiting instruction given was “presumptively insufficient Aranda/Bruton to limit their substantive inculpatory use under the circumstances . . . .” Dkt. 10-1 at 16. Petitioner also contends that the unredacted statement was testimonial hearsay barred by Crawford. Id.

         1.State Court Opinion

         The state appellate court gave the following background and rejected this claim as follows:

         1. Evidence of Hughes's Jailhouse Call

The prosecution questioned S.C. about a telephone call he received around the time of the preliminary hearing in this matter. S.C. testified that he was called at home, prior to finishing his preliminary hearing testimony. Although the caller identified himself as “Lou, ” Sanders's nickname, SC recognized Hughes's voice. As S.C. characterized it, Hughes told him “to tell everybody that he had nothing to do with it.” Prior to S.C.'s testimony about the substance of this call, the court had instructed the jury that the evidence could be considered only in connection with Hughes, not Sanders. The court had earlier denied a motion by Sanders's counsel alternatively for severance or to redact the reference to “Lou” under Evidence Code section 352.
Sanders argues the trial court, in refusing to sever or redact the reference to “Lou, ” erred and denied him due process and the right of confrontation under People v. Aranda (1965) 63 Cal. 2d 518');">63 Cal. 2d 518 (Aranda), partially abrogated by constitutional amendment as stated in People v. Fletcher (1996) 13 Cal.4th 451, 465, Bruton v. United States (1968) 391 U.S. 123 (Bruton), and Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Aranda and Bruton effectively prohibit the introduction in a joint criminal trial of a statement by one codefendant that “inculpates” (Bruton, supra, 391 U.S. at p. 137) or “implicates” (Aranda, supra, 63 Cal. 2d at p. 530) the other defendant. In both cases, one defendant confessed to a law enforcement officer that he and the other defendant committed the crimes of which they were jointly accused. (Bruton, at p. 124; Aranda, at p. 522.)
We find Bruton and Aranda inapplicable here because Hughes's identification of himself as Sanders did not in any way inculpate or implicate Sanders in the killings. Hughes did not say or even suggest that Sanders had committed the crimes. He merely falsely identified himself as Sanders in a telephone call relating to the crimes. The misidentification did not even, as Sanders contends, confirm Hughes's prior acquaintance with Sanders, since by the time of the telephone call the two had been named in the same information. In any event, when the statement does not directly implicate a codefendant, a limiting instruction may be sufficient to prevent undue prejudice. (People v. Fletcher (1996) 13 Cal.4th 451, 468.) Here, it was.
Nor, for two reasons, is Crawford applicable. Crawford precludes the admission of an out-of-court “testimonial” statement when the declarant is unavailable for cross-examination. (See People v. Lopez (2012) 55 Cal.4th 569, 576 (Lopez).) Although Crawford did not attempt to define a “testimonial” statement, it suggested the rule applies when the statement was “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'” (Crawford, supra, 541 U.S. at p. 52.) While the court's subsequent attempts to define this concept have lacked unanimity (see Lopez, at pp. 576-582), the court appears to agree that “to be testimonial the out-of-court statement must have been made with some degree of formality or solemnity, ” normally because it is made in the course of a criminal investigation or prosecution (id. at p. 581). While it is possible, as Sanders contends, Hughes was aware his telephone call was being recorded and would be available for trial, his statement to S.C. was not made “with some degree of formality or solemnity” and is therefore not covered by the rule of Crawford. In addition, Crawford does not restrict the use of statements for a nonhearsay purpose. (People v. Livingston (2012) 53 Cal.4th 1145, 1163-1164 (Livingston).) Here, the only hearsay use of the statement would have been to prove that Sanders was the caller, contrary to the prosecution's theory. Accordingly, its nonhearsay use here was not prohibited by Crawford.
Further, we find no error in the trial court's decision not to redact the reference to “Lou” from Hughes's statement. Evidence can be excluded under Evidence Code section 352 if its probative value is “‘substantially outweighed'” by the potential for undue prejudice or confusion. (People v. Riccardi (2012) 54 Cal.4th 758, 808-809.) We review a trial court's decision not to exclude evidence under section 352 for abuse of discretion. (Riccardi, at p. 809.) We find no abuse. Hughes's use of the name “Lou” was probative because it connected the call to the pending preliminary hearing and demonstrated Hughes's attempt to deceive, perhaps because he was aware the call could be recorded. The potential for undue prejudice was minimal because the misidentification did not tie Sanders to the crimes in any overt way, SC testified unequivocally the caller was Hughes, and the trial court gave a limiting instruction.
Even if we did not reach the foregoing conclusions, we would find no basis for reversing the judgment on the basis of the trial court's admission of Hughes's reference to “Lou” because it was harmless. As discussed above, Hughes's use of the name did little or nothing to implicate Sanders in the killings. At most, the reference suggested a prior relationship between Hughes, Sanders, and S.C, but there was other uncontested evidence that these three knew each other prior to the shootings. As a result, admission of the evidence was harmless under the standards of both Chapman and Watson.

Hughes, 2013 WL 960130, *9-10 (footnote omitted).

         2. Applicable Federal Law

         The Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to “be confronted with the witnesses against him.” U.S. Const. amend. VI. The ultimate goal of the Confrontation Clause is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. Crawford, 541 U.S. at 61. It commands, not for evidence to be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Id. The Clause thus reflects a judgment, not only about the desirability of reliable evidence, but about how reliability can best be determined. Crawford, 541 U.S. at 61.

         The Confrontation Clause applies to all “testimonial” statements. See Crawford, 541 U.S. at 50-51. “Testimony . . . is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 51 (internal quotation, brackets, and citation omitted); see Id. (“An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.”). The Confrontation Clause applies not only to in-court testimony but also to out-of-court statements introduced at trial, regardless of the admissibility of the statements under state laws of evidence. Id. at 50-51.

         Furthermore, the use of the out-of-court confession (or inculpatory statements) of a co-defendant who did not testify at trial violates the non-confessing defendant's right of cross-examination secured by the Confrontation Clause. Bruton, 391 U.S. at 134-37 (1968). Such a violation is not cured by a jury instruction that the confession should be disregarded in determining the non-confessing defendant's guilt or innocence. Bruton, 391 U.S. at 134-37 (1968). Bruton error, however, does not require reversal “‘if the other evidence of guilt was overwhelming and the prejudice to the defendant from his co-defendant's admission slight by comparison.'” Id. (quoting United States v. Guerrero, 756 F.2d 1342, 1348 (9th Cir.)); see United States v. Gillam, 167 F.3d 1273, 1277 (9th Cir. 1998) (finding Bruton error where co-defendant's redacted admission clearly implicated defendant, but finding error harmless because of strength of government's case against defendant).

         3. Analysis

         As explained above, the state appellate court denied Petitioner's claims of Bruton and Crawford errors on the grounds that admission of Hughes's unredacted statement was harmless beyond a reasonable doubt. Hughes, 2013 WL 960130, *9-10. Such a ruling was not “contrary to” clearly established federal law. See 28 U.S.C. § 2254(d)(1)(a). Claims under Bruton and Crawford are subject to harmless error analysis. See United States v. Rashid, 383 F.3d 769, 775- 77 (8th Cir. 2004) (applying harmless error analysis to claim of Bruton error after Crawford), sentence vacated on Booker grounds sub nom. Abu Nahia v. United States, 546 U.S. 803 (2005); United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004) (applying harmless error analysis to Crawford claim). The proper standard for harmless error on direct review is whether the error was harmless beyond a reasonable doubt. Id.

         The record shows that S.C. testified at trial that when he was preparing to return for the preliminary hearing, he received a telephone call from Hughes. 5RT 650, 653; Resp't Exs. 3A, 3F. S.C. recognized Hughes's voice. 5RT 651, 653. They had a brief conversation. 5RT 652. Hughes identified himself as “Lou” and advised S.C. to tell the court that he had nothing to do with the murders. 5RT 654. S.C. notified the District Attorney's office about the telephone call. 5RT 652.

         Hughes did not discuss the details of the murders with S.C, nor did he confess or implicate either himself or Petitioner during the conversation. Rather, he tried to persuade S.C. to tell the court that he had nothing to do with the murders. He did not attempt to shift blame to Petitioner during the call. While he may have identified himself as “Lou” during the call, SC testified that it was Hughes, not Petitioner on the phone. Further, the evidence of the call was admitted only against Hughes, and the trial court gave the jury a limiting instruction to ensure that it did not improperly consider the evidence against Petitioner. See Richardson v. Marsh, 481 U.S. 200, 211 (1987) (observing that the “rule that juries are presumed to follow their instructions” applies in cases that do not involve a “facially incriminating confession” as in Bruton).

         The state appellate court found that Hughes's identification of himself as “Lou” during the phone call to S.C. did not directly implicate Petitioner in the murders of Harris and Coria. Hughes, 2013 WL 960130, *9. Further, the state appellate court found no Crawford error based on two reasons: (1) Hughes's use of Petitioner's name was not submitted for the truth of the matter asserted but rather for a non-hearsay purpose, and, (2) Hughes's false identification of himself did not constitute a testimonial statement. Id. at *10. The state appellate court additionally found that, even assuming federal constitutional error occurred, it was harmless. Id. at *9-10. Such conclusions were not objectively unreasonable.

         In light of the relatively minor nature of the reference, any potential harm that it caused was cured by the trial court's limiting instruction that statements made by Hughes could only be considered against him and not against Petitioner. See Fields v. Brown, 503 F.3d 755, 787 (9th Cir. 2007) (jurors are presumed to follow the trial court's instructions). Finally, given the overwhelming evidence of Petitioner's guilt, Hughes's use of Petitioner's name during his phone call to S.C. was not prejudicial to Petitioner's case. On this record, this Court finds that any error was harmless because it did not have a “substantial and injurious effect or influence in determining the jury's verdict.” See Brecht, 507 U.S. at 638. Accordingly, Petitioner is not entitled to habeas relief on this claim, and Claim Two is DENIED.

         C. Claim Related to Photograph Inscriptions (Claim Three)

         Petitioner contends that the trial court violated his constitutional rights by admitting into evidence notations on the backs of photographs identifying S.C. as a witness who had “seen it all” and Petitioner as a “suspect.” Dkts. 10 at 5; 10-1 at 18-19, 154-160.

         1. State Court Opinion

         The state appellate court gave the factual background on this claim and rejected it on appeal as follows:

On the day following S.C.'s testimony, the prosecution called Oakland Police Sergeant George Phillips to testify about the investigation. In the days immediately after the killings, the police had not located any eyewitnesses and had not identified any suspects. A week after the killings, Phillips received a telephone call from a San Francisco police officer about a potential witness. Over a defense objection and subject to a limiting instruction that the testimony could not be considered for the truth of the matter asserted, Phillips testified the officer gave him the names of S.C. and his mother. Phillips then described his investigation over the next few days, interviewing S.C.'s mother and tracking down additional witnesses. Because S.C.'s mother told him S.C. was in the closet when the shooting occurred, Phillips did not focus on S.C. Two weeks after the killings, Phillips found on his desk an envelope from the same San Francisco police officer. In the envelope were four pictures. Two were of S.C.'s mother, and one was of S.C. Again over a defense objection and subject to the same limiting instruction, Phillips testified that, on the back of the photograph of S.C, was written, “The little boy that seen it all.” The back of the fourth photograph, which turned out to be of Sanders, was inscribed, “suspect.” Phillips testified he used these photographs to develop further witnesses and information. When, two months later, S.C.'s mother was arrested, Phillips used the leverage resulting from the arrest to persuade her to admit S.C. witnessed the shootings.
Sanders contends admission of the text of the notations on the backs of the two photographs, identifying S.C. as a witness and himself as a suspect, violated Crawford, denied him due process, and constituted legal error.
As noted above, Crawford precludes the admission of an out-of-court “testimonial” statement when the declarant is unavailable for cross-examination. To qualify as a testimonial, the statement must have been made with some degree of formality or solemnity. (Lopez, supra, 55 Cal.4th at p. 581.) Because there was no information provided about the anonymous, handwritten notations, other than that they found their way into the hands of a San Francisco police officer not otherwise involved in the investigation, we have no basis for finding they were made with the necessary formality or solemnity to qualify as “testimonial” under Crawford. In any event, “‘there are no confrontation clause restrictions on the introduction of out-of-court statements for nonhearsay purposes.'” (Livingston, supra, 53 Cal.4th at pp. 1163-1164.) As discussed below, these inscriptions were admitted only for nonhearsay purposes. Nor, as also discussed below, do we agree with Sanders's contention that the notations were “pivotal” evidence, making their admission a violation of due process. (Id. at p. 1163.)
We review the trial court's decision to admit the potential hearsay evidence under a limiting instruction for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 722-723.) The texts were, of course, inadmissible hearsay only to the extent they were admitted for the purpose of proving the truth of the inscriptions. They could properly be admitted for a nonhearsay purpose, such as, in this case, explaining conduct. (See Livingston, supra, 53 Cal.4th at p. 1162 [“‘“The statement is not hearsay, since it is the hearer's reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement”'”].) The facts sought to be proved, the course and explanation for the officer's investigation, were relevant, and the trial court sought to mitigate any undue prejudice by giving the instruction limiting their use to nonhearsay purposes.
Further, the potential for undue prejudice was minimal. Although Sanders characterizes this evidence as “key” and “[going] to the heart of the defense, ” it was anything but. The inscriptions provided no information about the crimes themselves. They merely suggested one person was a witness to the crime and characterized a defendant was a “suspect.” Further, the inscriptions were anonymous, and there was no testimony about their author or authors or the circumstances of their genesis. Even in the absence of the limiting instruction, the jury had no reason to believe the inscriptions were reliable or to give them any evidentiary weight, and no claim was made that the jury should do so. They were simply presented to explain the course of the investigation. Under these circumstances, we find no abuse of discretion.
In any event, admission of the texts from the photographs was harmless under both the Chapman and Watson tests. As to the reference to S.C. having “seen it all, ” any bolstering of S.C.'s testimony would have been minimal. The inscription was anonymous, and there was no explanation of why the author believed S.C. to have been a witness. On that ground alone, it would have been given little weight. More important, the jury was able to evaluate the credibility of S.C.'s testimony for itself in viewing his testimony. As to the description of Sanders as a “suspect, ” it would have had a similarly minimal impact, since the jury was presented with ample evidence relating directly to Sanders's commission of the crimes.

Hughes, 2013 WL 960130, * 10-11.

         2. Applicable Federal Law

         As mentioned above, the Sixth Amendment right to confront witnesses applies to any “testimonial” statements, whether sworn or unsworn, and to both in-court testimony and out-of-court statements introduced at trial. Crawford, 541 U.S. at 51-52. However, not all interrogations by law enforcement officers are subject to the Confrontation Clause. See Michigan v. Bryant, 562 U.S. 344, 354 (2011). “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).

         Evidence admitted for a non-hearsay purpose does not implicate the Confrontation Clause. Crawford, 541 U.S. at 59 n.9; Tennessee v. Street, 471 U.S. at 414 (no Confrontation Clause concerns were raised by the admission of co-defendant's confession for the non-hearsay purpose of rebutting defendant's assertion that his own confession was a “coerced imitation” of co-defendant's confession); Moses v. Payne, 555 F.3d at 755-56 (no Confrontation Clause issue where social worker reported spousal abuse under mandatory reporting law, and statements were introduced for non-hearsay purpose of explaining why she contacted Child Protective Services); United States v. Mitchell, 502 F.3d at 966 (“Testimony by a patrol officer about information [] eyewitnesses gave her about the car parked at the Trading Post was offered as a basis for action, not for its truth.”).

         On federal habeas review of a due process claim, the question is whether the admission of the challenged evidence was so prejudicial in the context of the trial as to render the conviction unfair. Estelle v. McGuire, 502 U.S. 62, 67 (1991). “A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005). “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process.” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (emphasis in original).

         3. Analysis

         As explained above, the state appellate court concluded that there was no evidence to show that the notations on the backs of the photographs qualified as testimonial under Crawford. Hughes, 2013 WL 960130, * 11. Such a conclusion was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See, e.g., Bryant, 562 U.S. at 370 (“when a court must determine whether the Confrontation Clause bars the admission of a statement at trial, it should determine the ‘primary purpose of the interrogation' by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.”). Furthermore, such a conclusion did not preclude the state appellate court's determination that no Crawford error occurred. See id.

         The state appellate court found that the notations were offered for a nonhearsay purpose rather than for the truth of the matter asserted, and concluded that their admission therefore did not violate Crawford. See Id. Such a finding by the state appellate court was objectively reasonable, based on clearly established Supreme Court law, see Crawford, 541 U.S. at 59 n.9; Tennessee v. Street, 471 U.S. at 414, and the record before it. Here, the record shows that the prosecutor questioned the primary investigator, Sergeant Phillips, about the progress of the murder investigation. 6RT 790. Sergeant Phillips testified that he was contacted by San Francisco Police Officer McMillan about a potential suspect and a potential witness. 6RT 790. The prosecutor asked the investigator about the identity of the witness provided by the other officer, as a means of explaining the investigator's subsequent conduct, and the defense objected. 6RT 790. The trial court overruled a defense objection, instructing the jury that the testimony was admitted for a limited purpose:

I'm going to permit it but not for the truth of the matter stated. This is evidence that's offered for a limited purpose. The purpose of this information is so that you can understand why the witness did ...

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