United States District Court, N.D. California
FLORENCIO A. ANSELMO, Petitioner,
JOSIE GASTELO, Warden, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO
LABSON FREEMAN, UNITED STATES DISTRICT JUDGE
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.
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.
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(unpublished).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.
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).
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”).
STATEMENT OF FACTS
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
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
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.
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).
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).
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
Claims and Analyses
raises the following six claims in this federal habeas
that the trial court erred in the wording of instruction
CALCRIM No. 3428;
that the trial court erred by giving the jury instructions
CALCRIM Nos. 521 and 728;
that there was insufficient evidence of premeditation and
deliberation to support Petitioner's conviction;
that there was insufficient evidence to support the
that Petitioner did not knowingly and intelligently waive his
Miranda rights; and
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
Insufficient Evidence Claims
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.
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.
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.
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 ...