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Anselmo v. Gastelo

United States District Court, N.D. California

October 10, 2019

FLORENCIO A. ANSELMO, Petitioner,
v.
JOSIE GASTELO, Warden, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK

          BETH LABSON FREEMAN, UNITED STATES DISTRICT JUDGE

         Petitioner has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2016 criminal judgment. Dkt. No. 1 (“Petition”). Respondent filed an answer on the merits. Dkt. No. 11 (“Answer”). Petitioner did not file a traverse. See generally, Dkt. For the reasons set forth below, the petition is DENIED.

         I. BACKGROUND

         A jury convicted Petitioner of first degree murder by lying in wait, with the special circumstance of lying in wait and personally using a deadly weapon. See Cal. Penal Code §§187(a), 190.2(a)(15), 12022(b)(1). On July 28, 2016, the trial court sentenced Petitioner to life without the possibility of parole, running consecutively from a one-year determinate term for the personal-use enhancement. See Ans. at 2.

         On October 12, 2017, the California Court of Appeal (“state appellate court”) affirmed the judgment. Id. at 1; see also People v. Anselmo, No. H043817, 2017 WL 4546264, at *1-3 (Cal.Ct.App. Oct. 12, 2017) (unpublished). On April 26, 2017, the California Supreme Court summarily denied a petition for review. Id.

         When the last state court to adjudicate a federal constitutional claim on the merits does not provide an explanation for the denial, ”the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale.” Wilson v. Sellers, --- U.S. ---, 138 S.Ct. 1188, 1192 (2018). “It should then presume that the unexplained decision adopted the same reasoning.” Id. Here, the California Supreme Court did not provide an explanation for its denial of the petition for review. See Ans., Ex. H. Petitioner did not argue that the California Supreme Court relied on different grounds than the state appellate court. See generally, Pet. Accordingly, this Court will “look through” the California Supreme Court's decision to the state appellate court's decision. See Skidmore v. Lizarraga, No. 14-CV-04222-BLF, 2019 WL 1245150, at *7 (N.D. Cal. Mar. 18, 2019) (applying Wilson).

         Petitioner filed the instant habeas petition on March 6, 2018. See Dkt. No. 1 (“Petition”). The Petition recites Petitioner's habeas claims in broad terms. See generally, id. As supporting argument, the Petition attaches Petitioner's brief to the state appellate court and the state appellate court's order denying Petitioner's appeal. See generally, Pet. at Exs. A-B (“Petition Exhibits”).

         II. STATEMENT OF FACTS

         The following background facts are from the opinion of the state appellate court on direct appeal:

Defendant and the victim, Maria Ceja, had been in a relationship on and off for about a year before she was killed on July 5, 2014. For three or four months during that period he lived with Ceja, three of her children, and two young grandchildren. He was not living with Ceja on July 4, but he had frequent contact with her by voice mail and text messages, and about a week or two before that day he came to her home with flowers. About two days before July 4 he helped Ceja fold newspapers for her job delivering them.
Defendant and Ceja broke up about every other month, and Ceja had other boyfriends besides defendant. Ceja liked to go dancing, which caused the two to argue. Defendant did not like Ceja to go out, to drink, or to talk to anybody else. On one occasion she showed her son, Jesus, a bite mark in her lip, which he believed had been caused by defendant. Jesus never heard defendant threaten his mother, but he was concerned when he heard a couple of voice-mail messages to her from defendant and saw a photo he had sent her, which showed defendant holding a knife to his throat. Ceja appeared to be upset and worried by the photo.
Jasmin, an adult daughter who lived with her two children in Ceja's apartment, had also seen Ceja worried about her safety. About a month before the killing, defendant had left a voice mail for Ceja saying that “‘[i]f you're not going to be for me, you're not going to be for anyone.'” Ceja told Jasmin that if anything happened to her, Jasmin would know who it was, namely defendant. About a week before she was killed, Ceja showed Jasmin a picture sent by defendant, showing him with a knife on his neck.
On July 4, 2014, Ceja went to Mariano's, a nightclub with two bars inside. At 9:01 p.m., defendant left her a voice mail telling her how much he loved her and saying that he was going to Mariano's to see if she was there.
A surveillance video at the club showed defendant arriving at 9:25 p.m. Ceja was sitting inside with a group of friends. Video footage showed defendant approaching Ceja and making contact with her at their table, followed by some discussion or argument; one of the friends pushed defendant's arm off and walked away. Defendant then grabbed Ceja's hand and led her to the dance floor. Over the next 40 minutes they danced several times.
Loriann Rodrigues, one of Ceja's friends, had moved Ceja earlier because defendant “kept coming up and trying to get her to dance, and he kept grabbing at her arm.” Ceja kept telling defendant no, and at one point Rodrigues stood up and confronted defendant. Shortly thereafter Rodrigues called the security guard over to take defendant away from the table. Defendant refused to move away; he grabbed his cowboy hat and threw it on the ground. Security escorted defendant out of the club. After that, defendant was seen on video surveillance outside, pacing back and forth, trying to make phone calls, and occasionally leaning up against Ceja's car.
While defendant was outside, Esperanza Reyes, another of Ceja's friends at the club, was in the restroom with Ceja when Ceja said, “Listen. He's threatening me.” She played a voice message for Reyes on her phone. Reyes heard an angry male voice yelling, “ ‘You will see that this time I'm going to kill you. I already told you before I am going to kill you.”
Ceja left the club just before 11:19 p.m. Phone records from Ceja's cell phone between 10:20 and 11:18 p.m. listed 16 calls made from defendant's phone to Ceja's, and another six after that, ending at 12:10 a.m. the next day. At 10:24 p.m. he left a voice mail in which he cried, telling her it was her fault and saying, “[Y]ou're going to pay for this, you don't know it, but you are.” In another voice mail at 10:32 p.m. he repeatedly said, “Why did you do this to me?” and asked twice when she would be leaving. At 10:37 p.m. there was only crying, followed by “I'm going to wait for you” and inaudible speech. At 11:00 p.m. there was crying; then he said, “It's your fault. It's your fault that they put me outside like a garbage can.” After more crying he called her a “puta” and told her she was “going to pay ... if not now, tomorrow.”
When Ceja left in her car, defendant walked to a Shell station across the street and got into a cab parked there. At Ceja's apartment [FN 3] her 12-year-old daughter, Y., was watching a movie when she heard a scream outside. Looking out the window, she saw her mother's car, which was still running, and ran toward it. Defendant was leaning into the driver's side, but when he saw Y., he tried to close the door. Ceja's foot was blocking the door, so defendant grabbed his hat from the roof of the car and ran away. Y. went to her mother and saw blood on her chest. She yelled to her brother, Jesus, to call 911.
[FN 3: Ceja's apartment was between four and seven miles from Mariano's.]
Jesus, then 17, spoke to the 911 operator as he tried to keep his mother awake. Her chest was bleeding and she struggled to breathe. When the first officer on the scene, Derek Gibson, arrived at 12:15 a.m., he saw a stab wound in the center of Ceja's chest. She was unconscious and her breathing was shallow. The parties later stipulated that Ceja died from two stab wounds to the chest.
Detective Dale Fors located Ceja's cell phone inside the car. He sent a text message to defendant's phone, saying, “Why did you do this to me?” At about 4:00 p.m. on July 5, defendant was found at the home of a friend. He was intoxicated, so he was taken to the police station, yelling obscenities in Spanish. Defendant was kept in a holding cell and observed for about five hours until he appeared sober and alert. During that period defendant asked Officer Anthony Garcia if he would allow his lady to see another guy; when he received no response, he added, “That's why I'm here.” Defendant continued yelling insults and threats to kill Officer Garcia.
Detective Rodolfo Roman questioned defendant at the police station after reading defendant his Miranda rights. The entire interview was conducted in Spanish. Afterward officers took defendant to the place where he had told them the weapon was located. There inside a tree was a black cowboy hat, orange boots, and a camouflage folding knife. On the boots and knife was blood, which was stipulated to be Ceja's. After returning to the station, detectives conducted another interview. Both interviews were video-recorded and played for the jurors, who were also given transcripts with English translations. During the first interview, defendant admitted that he stabbed Ceja out of anger at being thrown out of the bar; he “wanted to get even with her.” After waiting for her outside the bar, he told the detectives, he took a taxi to her apartment, hid inside her van, and confronted her when she arrived.
Defendant was charged by information with one count of first degree murder committed willfully, deliberately, and with premeditation. (§ 187, subd. (a)). The information further alleged that defendant had carried out the murder by lying in wait, within the meaning of section 190.2, subdivision (a)(15). An additional enhancement allegation stated that defendant had personally used a deadly weapon, a knife, within the meaning of section 12022, subdivision (b)(1).
Trial began on June 8, 2016. After testimony by prosecution witnesses, the defense presented numerous text messages and voice mails from defendant in the days preceding the stabbing, in which he declared his love for Ceja and asked her for forgiveness. The jury also heard about defendant's bringing flowers to Ceja and helping her fold newspapers shortly before that night.
On June 17, the jury found defendant guilty as charged and found the allegations of lying in wait and personal use of a weapon to be true. On July 28, 2016, the trial court denied defendant's subsequent motion to set aside the verdict or, alternatively, grant a new trial. It then sentenced defendant to life without the possibility of parole. Defendant's appeal is timely.

Anselmo, 2017 WL 4546264, at *1-3.

         III. DISCUSSION

         A. Legal Standard

         This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with respect to any claim that was adjudicated 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).

         “Under the ‘contrary to' clause, a federal habeas court may grant the writ 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 v. Taylor, 529 U.S. 362, 412-13 (2000). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be “reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

         “Under the ‘unreasonable application' clause, 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.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)'s ‘unreasonable application' clause, . . . 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.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” Id. at 409.

         B. Claims and Analyses

         Petitioner raises the following six claims in this federal habeas petition:

         (1) that the trial court erred in the wording of instruction CALCRIM No. 3428;

         (2) that the trial court erred by giving the jury instructions CALCRIM Nos. 521 and 728;

         (3) that there was insufficient evidence of premeditation and deliberation to support Petitioner's conviction;

         (4) that there was insufficient evidence to support the lying-in-wait allegation;

         (5) that Petitioner did not knowingly and intelligently waive his Miranda rights; and

         (6) cumulative errors.

         Because Petitioner's claims of insufficient evidence (claims 3 and 4) turn on the same law, the Court will address those claims together, and first. The Court then will address Petitioner's claim that the trial court erred in relaying instruction CALCRIM No. 3428 (claim 1); then will address Petitioner's claim that the trial court erred by giving CALCRIM Nos. 521 and 728 (claim 2); then will address Petitioner's Miranda claim (claim 5); and finally will address Petitioner's claim of cumulative error.

         1. Insufficient Evidence Claims

         Petitioner claims that there was insufficient evidence of premeditation and deliberation to support his conviction for first degree murder, and that there was insufficient evidence of lying in wait to support the conclusion that he committed murder by lying in wait or to support the special circumstance enhancement for lying in wait.

         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 fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see Id. at 324.

         The Supreme Court has emphasized that “Jackson claims face a high bar in federal habeas proceedings . . . .” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (finding that the 3rd Circuit “unduly impinged on the jury's role as factfinder” and failed to apply the deferential standard of Jackson when it engaged in “fine-grained factual parsing” to find that the evidence was insufficient to support petitioner's conviction). A federal court reviewing collaterally a state court conviction 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), cert. denied, 510 U.S. 843 (1993); see, e.g., Coleman, 566 U.S. at 656 (“the only question under Jackson is whether [the jury's finding of guilt] was so insupportable as to fall below the threshold of bare rationality”). 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, has there been a due process violation. Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338.

         After AEDPA, a federal habeas court applies the standards of Jackson with an additional layer of deference. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Generally, a federal habeas court must ask whether the operative state court decision reflected an unreasonable application of Jackson to the case. Coleman, 566 U.S. at 651; Juan H., 408 F.3d at 1275 (quoting 28 U.S.C. § 2254(d)). Thus, if the state court affirms a conviction under Jackson, the federal court must apply § 2254(d)(1) and decide whether the state court's application of Jackson was objectively unreasonable. See McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); Sarausad v. Porter, 479 F.3d 671, 677-78 (9th Cir. 2007). To grant relief, therefore, a federal habeas court must conclude that “the state court's determination that a rational jury ...


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