Magistrate Report Dominguez
Magistrate Report Dominguez
Magistrate Report Dominguez
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7 UNITED STATES DISTRICT COURT
8 CENTRAL DISTRICT OF CALIFORNIA
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10 RAMON GONZALEZ ) No. CV 12-8280 AG (FFM)
11 DOMINGUEZ, )
) FINAL REPORT AND
12 Petitioner, ) RECOMMENDATION OF UNITED
) STATES MAGISTRATE JUDGE
13 v. )
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14 MICHAEL STAINER, Warden, )
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15 Respondent. )
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16 This Final Report and Recommendation is submitted to the Honorable
17 Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. § 636 and
18 General Order 05-07 of the United States District Court for the Central District of
19 California. For the reasons discussed below, it is recommended that the petition
20 be granted.
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22 I. PROCEEDINGS
23 Petitioner Ramon Gonzalez Dominguez (“Petitioner”), a state prisoner in
24 the custody of the California Department of Corrections, who is represented by
25 counsel, filed a Petition for Writ of Habeas Corpus by a Person in State Custody
26 pursuant to 28 U.S.C. § 2254 on September 25, 2012. Thereafter, on March 21,
27 2013, respondent filed a return to the Petition. On April 8, 2013, Petitioner filed a
28 traverse.
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1 B. Petitioner’s Arrest
2 After the shooting was reported, a dispatch went out for a Chrysler 300 that
3 was involved in a shooting. Around this time, Officer Tom Webster, an
4 undercover officer, was patrolling the nearby area in an unmarked police vehicle.
5 Webster was in plain clothes, and the vehicle he was driving could not be
6 identified in any way as a police vehicle.
7 About 2.3 miles from where the shooting occurred, Officer Webster noticed
8 a green Chrysler 300 in which three people were traveling. Petitioner was seated
9 in the front passenger seat, and Juan Sandoval was seated in the rear passenger
10 seat. Sandoval was wearing a Cowboys hat.
11 Having heard the dispatch, Officer Webster followed the car, but did
12 nothing, such as activating sirens or lights, to convey to anyone around him that
13 he was a police officer. As he followed the Chrysler 300, he observed that its
14 driver obeyed all of the traffic rules, although at times the driver exceeded the
15 speed limit by five to ten miles an hour. Based on the turns that the driver took,
16 however, Officer Webster believed that the driver knew that he was being
17 followed and was driving evasively in an effort to elude his pursuers.
18 In response, Officer Webster called his partner, Officer Enrique Alvarez,
19 who, like Officer Webster, was in plain clothes and driving a vehicle that could
20 not be identified as a police vehicle. Apprised of the situation, Officer Alvarez
21 began following directly behind the Chrysler 300, with Officer Webster’s vehicle
22 falling back behind Officer Alvarez. At no point did either officer witness any of
23 the occupants throw anything out of the car.
24 After some time, the Chrysler 300 pulled into a shopping center. Officer
25 Alvarez pulled behind the Chrysler 300, blocking its ability to reverse.
26 Thereafter, the occupants of the Chrysler 300 exited the car. Two of the
27 occupants, the driver and Sandoval, ran one way. In response, Officer Alvarez
28 pulled out his firearm and detained both individuals. Officer Alvarez was,
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1 with the big boys now.”4 In response, Petitioner provided additional details about
2 the shooting and explained why he had targeted his victim.
3 Acknowledging that Petitioner was being forthcoming about the shooting,
4 the CI, again, replied that he was going to call off the planned attack on Petitioner.
5 Thereafter, the CI continued to press for details, all the while reminding Petitioner
6 of the consequences he would face if he refused to “be straight” about the
7 shooting.5 The CI then proceeded to ask pointed questions about the shooting, and
8 Petitioner answered each question. As this went on, the CI continually reminded
9 Petitioner that the CI was “run[ning] court” on Petitioner, that everything had
10 been put “on the table” for Petitioner, that Petitioner would be safe as long as he
11 told the CI the truth about the shooting, that the CI was the “key holder, ” and that
12 the CI would “send a kite up” to the
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See, e.g., CT 1073 (“Tomorrow I am going to send up a kite, you know what a
20 kite is? . . . I am going to send a kit[e] up there. You know what, I’m going to do a
21 stop order. For you, because I know a fuck lot of your, your Homies. You know. .
. . I’m gonna do a stop order, Homie. Just, you know that I am telling you that,
22 you know, just be straight with me, you know because . . . If you are lying to me.
23 Homie, I’m gonna get in a jam. You know. . . . Because, that job just doesn’t fly
with the M. You know? . . . That means you are playing with the big boys now
24 Homie. Do you understand me?”).
25 5
See CT 1074-75 (“Hey, look it Homie. That is why I am going to do a stop
26 order on you, Homie. But like I told you Homie. I want you to be straight with me
27 Homie. And I’ll do all the follow up and this thing I got for you, you know, I’ll be
on your back Homie. . . . [Y]ou are here Homie. You landed here, Homie. I have
28 to sort it out with you, you know.”).
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1 the car in which Petitioner had been traveling and identified it as the car that was
2 used in the shooting.
3 2. Nava
4 Unlike Hernandez, Nava was never able to identify Petitioner as the
5 shooter. Before trial, Nava was asked to try to identify the shooter from a set of
6 three photographic line-ups. Although Petitioner’s photograph appeared in one of
7 the three line-ups, Nava did not identify Petitioner. Instead, Nava selected
8 someone else as the person whom he believed to be the shooter. Although the
9 investigating officer repeatedly requested that Nava attend a live line-up, Nava
10 refused to do so, citing safety concerns.8 When Nava testified at Petitioner’s first
11 trial, he was, again, unable to identify Petitioner as the shooter. Nava,
12 furthermore, testified that the shooter was bald.9 Petitioner, however, was not bald
13 at the time of the shooting.
14 Nava was also questioned about the car that was used in the shooting. Like
15 Hernandez, he testified that the car had tinted windows and chrome rims. When
16 asked about the color of the car, he testified that the car was either dark blue or
17 baby blue. Like Hernandez, Nava testified that, after the shooting, the shooter got
18 into the rear passenger seat of the car.
19 3. Gunshot Residue
20 Margaret Kaleuati, a criminalist with the Los Angeles County Coroner’s
21 Office, performed a gunshot residue (“GSR”) analysis on Petitioner’s hands.
22 Kaleuati testified that she found one particle characteristic of GSR, along with
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No evidence was offered to show that Petitioner or anyone on his behalf
25 threatened Nava.
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26 As explained below, Petitioner stood trial three times for attempting to murder
27 Nava. Although Nava testified at Petitioner’s first trial, he did not testify at
Petitioner's third trial. Accordingly, his testimony from the first trial was read to
28 the jury in Petitioner’s third trial.
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1 several consistent particles, on one of Petitioner’s hands. She also testified that,
2 on Petitioner’s other hand, she found several particles consistent with GSR, but
3 none that were characteristic.
4 According to Kaleuati’s testimony, characteristic particles are particles
5 containing the three elements comprising GSR. Such particles are unique because
6 a combination of the three elements comprising them are not found anywhere in
7 nature. As such, according to Kaleuati’s testimony, characteristic particles serve
8 as a “defining point,” in that they indicate that someone has fired a gun. By
9 contrast, consistent particles are particles containing only two of the three
10 elements comprising GSR. Because a combination of two of the three GSR-
11 comprising particles is not unique, consistent particles serve only to support a
12 theory that someone, based on the presence of characteristic particles, has fired a
13 gun.
14 Based on her findings, Kaleuati concluded that “[Petitioner] may have
15 discharged a firearm or had his hands in an environment of gunshot residue.”
16 However, when asked if she could say with “any degree of scientific certainty”
17 whether Petitioner fired a gun on the day of the shooting, Kaleuati answered,
18 “No.”
19 In addition to testifying regarding her findings as to Petitioner, Kaleuati
20 testified about the ways in which GSR could be transferred to someone who had
21 not fired a gun. In particular, she testified that someone who had not fired a gun
22 could test positive for GSR if they came into contact with someone who had fired
23 a gun. She also testified that a person who had not fired a gun could test positive
24 for GSR as a result of having been handcuffed and placed into a police car.
25 Finally, Kaleuati testified regarding the length of time that GSR typically
26 remains on a person’s hands after firing a gun. She explained that the length of
27 time varies depending on the amount of activity in which a given person engages
28 and whether the person scrubs his hands. Nevertheless, she testified that “the
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1 average person will remove all of their [GSR] from their hands within three to
2 four hours, maybe five hours, just going about the house doing normal, everyday
3 things.”
4 4. Gang Expert
5 Because Petitioner was alleged to have shot Nava for the benefit of a
6 criminal street gang, the prosecution called a gang expert to testify. The gang
7 expert opined that one gang member would never lie to another gang member
8 about committing a crime because of fear of reprisal if the lie was discovered.
9 On cross-examination, defense counsel questioned the gang expert about
10 the power of the Mexican Mafia in prisons. The expert testified that the Mexican
11 Mafia is very powerful in prison and that any Hispanic gang member who goes to
12 prison “come[s] under” its “umbrella.” The gang expert further testified that a
13 person who got on the wrong side of the Mexican Mafia could get into “big
14 trouble.”
15 The expert was also questioned about the meaning of some of the
16 statements that the CI made to Petitioner during their recorded conversation.
17 Specifically, defense counsel asked what the CI meant by stating the following:
18 “You’re going to be here a little bit, homie. And then you’re going to go up there,
19 and they’re waiting for you. I’m going to send a kite up there, and you know what
20 I’m going to do? A stop order.” In response, the expert opined that the CI meant
21 that he was going to “stop a hit” on Petitioner.
22 E. Petitioner’s Defense Theory
23 Although defense counsel did not call any witnesses on Petitioner’s behalf,
24 his cross-examinations and his closing argument show that he pursued two
25 defense theories. First, he sought to discredit any testimony suggesting either that
26 Petitioner was present at the shooting or that the car involved in the shooting was
27 the same car in which Petitioner was a passenger. Second, defense counsel sought
28 to show that Sandoval was the person who shot Nava. Pursuant to this theory,
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1 defense counsel argued that Petitioner was in the car that was used in the shooting,
2 but he had no role in the actual shooting.10 Defense counsel relied on this theory
3 in attempting to explain why Petitioner confessed to shooting Nava. According to
4 defense counsel, Petitioner admitted to the shooting because he would have faced
5 retaliation from the Mexican Mafia if he “ratted” on Sandoval. Likewise,
6 according to defense counsel’s argument, Petitioner would have been beaten or
7 killed if he denied having any role in the shooting. Thus, according to defense
8 counsel, Petitioner claimed to be the shooter because it was the only available
9 option to Petitioner that would not put him in immediate danger.
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11 IV. PETITIONER’S CLAIM
12 The trial court violated Petitioner’s Fifth Amendment rights by allowing the
13 prosecution to admit into evidence Petitioner’s jailhouse confession because that
14 confession was obtained through coercion.
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16 V. STANDARD OF REVIEW
17 The standard of review applicable to Petitioner’s claims herein is set forth
18 in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
19 Penalty Act of 1996 (“AEDPA”) (Pub. L. No. 104-132, 110 Stat. 1214 (1996)).
20 See 28 U.S.C. § 2254(d); see also Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct.
21 2059, 138 L. Ed. 2d 481 (1997). Under AEDPA, a federal court may not grant
22 habeas relief on a claim adjudicated on its merits in state court unless that
23 adjudication “resulted in a decision that was contrary to, or involved an
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Although the jury was instructed that it could find Petitioner guilty if he aided
26 and abetted another in the charged crime, no evidence was offered to prove this
27 theory of guilt other than the fact that Petitioner was present when the shooting
occurred. Moreover, in his rebuttal argument, the prosecutor stated that the State’s
28 only theory was that Petitioner was the shooter.
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1 VI. DISCUSSION
2 Petitioner contends that the trial court violated his Fifth Amendment rights
3 by admitting into evidence his confession that was obtained as a direct result of a
4 threat to his life. Specifically, Petitioner maintains that the CI led him to believe
5 that he would be beaten or killed if he did not admit to the shooting and provide
6 details about how the shooting occurred and why he shot the victim.
7 The California Court of Appeal rejected Petitioner’s claim. In doing so, the
8 court of appeal found that the CI never actually threatened Petitioner and that
9 Petitioner, “by [his] own choice,” elected to share the details of his crime with the
10 CI. For the reasons explained below, the court of appeal’s rejection ofPetitioner’s
11 claim constitutes an unreasonable application of the United States Supreme
12 Court’s opinion in Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L.
13 Ed. 2d 302 (1991).
14 A. Court of Appeal Opinion
15 The court of appeal rejected Petitioner’s claim as follows:
16 [Petitioner] contends the court erred in admitting his
17 confession because it was involuntarily obtained by coercion in the
18 form of threats and deception. We conclude the confession was
19 properly admitted.
20 The federal and state Constitutions prohibit the admission of a
21 defendant’s involuntary confession into evidence at trial. (U.S.
22 Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; People v.
23 Williams (2010) 49 Cal. 4th 405, 436; People v. Carrington (2009)
24 47 Cal. 4th 145, 169.) “When a defendant challenges a confession as
25 involuntary, the prosecution has the burden of establishing by a
26 preponderance of the evidence that a defendant’s confession was
27 voluntarily made.” (Williams, at p. 436.) A confession is voluntary
28 unless coercive behavior by law enforcement officials was such that
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1 (1988); Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L. Ed. 2d 410
2 (1986). A waiver is valid if the suspect intentionally relinquished his or her rights
3 with full awareness of the nature of the rights and the consequences of the
4 decision. Patterson, 487 U.S. at 292; Moran, 475 U.S. at 421.
5 The test for determining whether a confession is involuntary is whether,
6 considering the totality of the circumstances, the confession was obtained by
7 means of physical or psychological coercion or improper inducement such that the
8 suspect’s will was overborne. Moran, 475 U.S. at 421; Miller v. Fenton, 474 U.S.
9 104, 112, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985) (stating that voluntariness of
10 confession is legal issue requiring independent determination on federal habeas
11 corpus proceeding); Culombe v. Connecticut, 367 U.S. 568, 602, 81 S. Ct. 1860, 6
12 L. Ed. 2d 1037 (1961) (holding that test for voluntariness is whether confession
13 was product of essentially free and unconstrained choice by its maker).
14 Although several factors are considered in determining whether a
15 confession in involuntary, “coercive police activity is a necessary predicate to [a]
16 finding that a confession is ‘[in]voluntary’ within the meaning of the Due Process
17 Clause.” Connelly, 479 U.S. at 167; Withrow v. Williams, 507 U.S. 680, 693, 113
18 S. Ct. 1745, 1754, 123 L. Ed. 2d 407 (1993) (describing police coercion as
19 “crucial element” to determination that confession was involuntary). In addition
20 to the level of police coercion, other relevant factors include the length of the
21 interrogation, its continuity, and the defendant's maturity, education, physical
22 condition, and mental health. Id. at 693-94. “It is not sufficient for a court to
23 consider the circumstances in isolation. Instead, ‘all the circumstances attendant
24 upon the confession must be taken into account.’” Doody v. Schriro, 596 F.3d
25 620, 638 (9th Cir. 2010) (quoting Reck v. Pate, 367 U.S. 433, 440, 81 S. Ct. 1541,
26 6 L. Ed. 2d 948 (1961)).
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1 violence, absent protection from his friend, motivated the defendant to confess.
2 Id. Accordingly, the confession was inadmissible. Id.
3 The only way in which Fulminante is distinguishable from the facts of
4 Petitioner’s case is that the nature of the threat here is more extreme than was the
5 nature of the threat in Fulminante. Petitioner was presented with the following
6 options: confess in detail about the shooting or face the wrath of a group of
7 Mexican Mafia members who were “waiting for [him].” Whereas the informant
8 in Fulminante only offered to protect the defendant from others, the CI here flatly
9 stated that he was the “key holder” – he could either call off the planned attack on
10 Petitioner, or refuse to do so, thereby unleashing on Petitioner the group of
11 Mexican Mafia members who were waiting for him. In other words, the CI made
12 it clear that he held Petitioner’s life in his hands and that Petitioner’s only hope of
13 safety was to convince the CI that Petitioner had not committed a drive-by
14 shooting. Only in response to these threats did Petitioner deny committing a
15 drive-by shooting and admit that he had shot the victim after exiting the car.
16 Although the court of appeal found that there was no actual threat made
17 against Petitioner and that there was nothing emotionally intimidating about the
18 contact between Petitioner and the CI, these findings are clearly erroneous. The
19 CI stated in no uncertain terms that he was “running court” on Petitioner, that
20 Petitioner was suspected of committing a type of crime that “doesn’t go” with the
21 Mexican Mafia, and that the Mexican Mafia was “waiting for [Petitioner] up
22 there.” (CT 1070-71.) The import of the CI’s statements is clear: if the CI was
23 not convinced that Petitioner had not committed a drive-by shooting, the CI would
24 unleash a waiting group of Mexican Mafia members on Petitioner. Put simply, the
25 CI’s statements to Petitioner constitute a direct threat of harm or death. As such,
26 they go far beyond the indirect threat of harm in Fulminante. See Lam, 304 F.3d
27 at 265 (characterizing threat in Fulminante as “indirect” and finding that
28 circumstances surrounding that threat “pale[d]” compared to undercover officers’
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1 direct threat of “gang violence” against murder suspect); Fulminante, 499 U.S. at
2 306 (“[The informant] at no time threatened [the defendant] or demanded that he
3 confess; he simply requested that [the defendant] speak the truth about the
4 matter.”) (Rehnquist, J., dissenting).
5 Equally erroneous is the court of appeal’s characterization of the contact
6 between Petitioner and the CI as “conversational” and concerning merely
7 “clarification of the manner in which the crime occurred.” This characterization
8 ignores the fact that the CI repeatedly used the threat of subjecting Petitioner to
9 the waiting Mexican Mafia members – or protecting Petitioner from that fate – to
10 extract details from Petitioner about the shooting. For example, after Petitioner
11 admitted to the shooting, the CI promised to send the waiting Mexican Mafia
12 members a signal to abort the planned attack on Petitioner, provided that
13 Petitioner gave a full and truthful account of the shooting:
14 Tomorrow I am going to send a kite . . . I am going to send a kite[e]
15 up there. You know what, I’m going to do a stop order. For you,
16 because I know a fuck of a lot of your, your homies. You know . . .
17 I’m gonna do a stop order, Homie. Just, you know that, I am telling
18 you that, you know, just be straight with me, you know because . . . If
19 you are lying to me, Homie, I’m gonna get in a jam. You know. . . .
20 Because, [committing drive-by shootings like the one of which you
21 are accused] doesn’t fly with the M. You know? . . . That means you
22 are playing with the big boys now Homie. Do you understand me? . .
23 . So, are you sure that you got out?
24 ///
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1 (CT 1073.) Although the court of appeal characterized the foregoing statements
2 as conversational, the State’s gang expert testified that such statements meant that
3 the CI was going to call off a “hit” on Petitioner.14 (RT 1428.)
4 And, as Petitioner provided the requested details about the shooting, the CI
5 continually dangled the prospect of calling off the attack on Petitioner to ensure
6 that Petitioner revealed more information about the shooting. (See, e.g., CT 1074
7 (“Hey, look it Homie. That is why I am going to do a stop order on you, Homie.
8 But like I told you Homie. I want you to be straight with me Homie. And I’ll do
9 all the follow up and this thing I got for you, you know, you know, I’ll be on your
10 back Homie. . . You are here Homie. You landed here. I have to sort it out with
11 you. You know?”); id. at 1077 (“And they told me to run court on you, and to put
12 everything on the table for you. You know, Homie? . . . You know, I don’t want
13 you to fucking, you know, you know. I know that everything is going to come out
14 fine. Homie, if you tell the truth. . . I’ve been to the pen 3 times Homie. Do you
15
14
16 In his objections, Respondent argues that the undersigned ignores the fact that
the CI did not promise to “send up a kite” until after Petitioner confessed.
17 (Objections at 2.) However, as set forth above, the CI threatened to unleash a
18 group of “waiting” Mexican Mafia members on Petitioner well before the CI
explicitly offered to “send up a kite.” If Respondent intends to argue that the CI’s
19 offer to “send up a kite” is irrelevant to the question of whether the CI used
20 coercion because that offer preceded Petitioner’s general confession about the
shooting, Respondent is mistaken. Indeed, that argument ignores the fact that the
21
CI continued to use coercion after issuing his initial threat regarding the “waiting”
22 Mexican Mafia members. As explained herein, the CI’s offer to “send up a kite,”
23 along with several other statements that he made after Petitioner generally admitted
his role in the shooting, provides powerful evidence that the CI continued to use
24 coercion to extract specific details of the shooting, including why Petitioner shot
25 the victim and how he did so – aspects of the confession on which the prosecutor
heavily relied in his closing arguments. (See infra.) This fact was made clear in
26 the initial Report and Recommendation. (See Report and Rec. at 24.)
27 Notwithstanding this fact, the undersigned has omitted one reference to the CI’s
offer to “send up a kite” that appeared on page twenty-three of the initial Report
28 and Recommendation to address Respondent’s concern.
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1 understand me, and I told you, and I am a veteran, Homie . . I got the fucking
2 llaves, here, you know?”); id. at 1079-80 (“Just. I need to get this job, to send a
3 kite up there as soon as possible, to fix this job . . . Please. Just be straight with
4 me, like I’m being straight with you, Homie.”).)
5 Furthermore, the record contradicts the court of appeal’s assertion that
6 Petitioner “was willing to speak about the shooting, defended his criminal conduct
7 freely, and his will was not overborne.” This assertion turns a blind eye to the
8 context in which the conversation between Petitioner and the CI occurred. The CI
9 claimed to be a Mexican Mafia member and essentially stated that he – and he
10 alone – would decide whether Petitioner lived or died. The CI also explained that
11 he would call off the planned attack on Petitioner only if Petitioner came clean
12 about the details of the shooting. Not surprisingly, Petitioner responded by
13 supplying the requested details.
14 Although one could argue that Petitioner could have placated the CI (and
15 removed himself from danger) by simply denying any role in the shooting, such
16 an argument falls flat when considered against the circumstances surrounding
17 Petitioner’s confession. Petitioner was not confronted with an objective factfinder
18 willing to give him the benefit of the doubt as to his innocence. Instead, he was
19 confronted by what he believed to be a high ranking member of the Mexican
20 Mafia who gave every indication that the Mexican Mafia considered it a foregone
21 conclusion that Petitioner shot the victim. Indeed, the CI made it clear to
22 Petitioner that he could ward off an impending attack by a waiting group of
23 Mexican Mafia members only by assuring the CI that the shooting was not a
24 drive-by shooting. Given these facts, it is objectively unreasonable to believe that
25 Petitioner could deny committing a drive by shooting, while simultaneously
26 maintaining his innocence or withholding the fact that he exited the car to shoot
27 the victim. To be sure, Petitioner did not shy away from admitting his role in the
28 shooting, but he had no reason to do so. His life was at risk (or so the CI had
27
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1 Petitioner believe) because of the crime the Mexican Mafia suspected Petitioner of
2 committing – namely, a drive-by shooting. Thus, Petitioner had every reason to
3 defend his criminal conduct, as that conduct – namely, shooting the victim from
4 outside of the car – was his only hope of ensuring his own safety. Given these
5 circumstances, there is no credible way to separate the CI’s patent coercion from
6 Petitioner’s confession.
7 Additionally, the court of appeal’s finding that there was no evidence of
8 vulnerability on Petitioner’s part is not borne out by the record. Petitioner had
9 limited experience in a custodial setting, having been incarcerated primarily in a
10 youth authority and having spent next to no time in county jail. (See CT at 1069.)
11 Compare with Fulminante, 499 U.S. at 286 n.2 (observing that defendant had
12 spent part of adult life in prison); id. at 306 (noting that defendant “was an
13 experienced habitue of prisons”) (Rehnquist, J., dissenting). The CI, moreover,
14 successfully exploited Petitioner’s inexperience in county jail by emphasizing that
15 he was a “veteran” of the prison system and by admonishing Petitioner that he was
16 “playing with the big boys now.” The success of this ruse is evidenced by
17 Petitioner’s unquestioning acceptance of the CI’s word. Thus, contrary to the
18 court of appeal’s conclusion, the facts show that Petitioner was vulnerable to the
19 CI’s tactics.
20 In his objections, Respondent takes issue with the fact that the initial Report
21 and Recommendation did not specifically note that Petitioner had spent four and a
22 half years in juvenile hall, even though the initial Report and Recommendation
23 noted that Petitioner had previously been incarcerated in the youth authority.
24 (Report and Recommendation at 27.) Regardless, Respondent’s point ignores the
25 larger issue – namely, that Petitioner’s custodial experience was nearly
26 exclusively limited to the time he spent in juvenile hall, whereas his interaction
27 with the CI occurred in county jail. And, as is clear from the record,
28 ///
28
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1 the CI repeatedly exploited this fact by reminding Petitioner that he was dealing
2 with a “veteran” and “playing with the big boys now.” (CT 1073, 1077.)
3 Although Petitioner did not necessarily display weakness, the record
4 indicates that he was – at a minimum – concerned about his safety. Compare with
5 Fulminante, 499 U.S. at 304 (confession was coerced by threat, even though
6 defendant stipulated that “at no time did [he] indicate that he was in fear of other
7 inmates,” nor did he seek protection from any inmate). For example, whenever
8 the CI raised the specter of the Mexican Mafia or the possibility that he would
9 “send up a kite,” Petitioner would provide details about the shooting.
10 Moreover, a fair reading of the record leaves little doubt that Petitioner was
11 concerned about convincing the CI that Petitioner did not commit a drive-by
12 shooting. (See, e.g., CT 1072 (“I got out and, and I got the dude, but it is not a
13 drive by. . . . Yes, but I got out dude. I, I swear that I got out. And I got the
14 dude.”); id. at 1072-73 (CI: “And that dude, that, that did that job, is up there, and
15 the dude is saying that it was a drive by.” Pet: “No dude, No Little Dog, forgive
16 me.”); id. at 1075 (“Well, yeah, Dog. I’m being nothing but the true, come on
17 Dog.”). Additionally, Petitioner urged the CI to corroborate Petitioner’s account
18 of the shooting by speaking to Sandoval, who was with Petitioner when Nava was
19 shot. (See, e.g., CT 1082 (“Look dog. Anybody that gets to [Sandoval], anybody
20 is going to hear the same thing, Dog. Because that’s what happened.”); id. at 1086
21 (“Yeah, Dog, but you can ask [Sandoval], ask all the Homies, Dog, what, Homie,
22 ain’t nothing gonna be changed up. Just like that.”).)
23 Furthermore, the record shows that Petitioner’s fear of the Mexican Mafia
24 was well-founded. The State’s gang expert, who was “very familiar” with the
25 Mexican Mafia, testified that the Mexican Mafia has a “lot of power in prison.”
26 (RT 1425-26.) The State’s gang expert also testified that the Mexican Mafia is
27 “very regimented and very structured” and that any Hispanic gang member who
28 goes to prison “come[s] under” its “umbrella.” (RT 1429.) And, according to the
29
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1 State’s gang expert, a person who got on the wrong side of the Mexican Mafia
2 could get into “big trouble.” (RT 1425.) Petitioner, as a Hispanic gang member,
3 would no doubt be aware of these facts. What is more, the CI, also clearly aware
4 of these facts, used them to establish a sense of authority over Petitioner, while
5 simultaneously instilling fear in Petitioner.
6 Moreover, contrary to the court of appeal’s assertions, the crime Petitioner
7 was suspected of committing was likely to cause retaliation. Although Petitioner
8 was convicted of attempted murder, the CI led Petitioner to believe that he was
9 suspected of committing a drive-by shooting. That offense, like the crime of
10 which the defendant in Fulminante was suspected, exposed Petitioner to being
11 beaten or killed by the Mexican Mafia – or so the CI led Petitioner to believe.
12 Although the court of appeal attempted to distinguish Petitioner’s actual crime
13 from the manner in which he carried out the crime, any such distinction, under
14 these facts, is inconsequential. Put simply, Petitioner was led to believe that he
15 was suspected of committing an act that would cause members of the Mexican
16 Mafia to retaliate against him and that he could avoid this fate only by confessing
17 and detailing his role in the attempted murder. As such, Petitioner was in a similar
18 – if not in a much worse – situation than the defendant in Fulminante.15
19 Finally, the fact that Petitioner had not been subjected to any “tough
20 treatment” by other prison inmates before confessing does not render the court of
21 appeal’s conclusions any less unreasonable. The Supreme Court has never held
22
23 15
Respondent argues that, in reaching this conclusion, the undersigned has not
24 afforded the proper deference to which state court findings of fact are entitled
25 under AEDPA. To be sure, such findings of fact are entitled to deference and are
presumed to be correct. See 28 U.S.C. § 2245(e)(1). However, that presumption is
26 not irrebuttable. And, here, there is clear and convincing evidence that, contrary to
27 the state court’s finding of fact, the CI used direct threats of harm to extract
Petitioner’s initial confession and that the CI continued to use such threats to
28 extract additional details about the crime.
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1 This standard requires much more than a simple review of the record to
2 determine whether, absent the error, the prosecutor introduced sufficient evidence
3 to support the conviction.16 See Kotteakos v. United States, 328 U.S. 750, 765, 66
4 S. Ct. 1239, 90 L. Ed. 1557 (1946). Instead, under Brecht, the reviewing court
5 must undertake an analysis to determine the effect that the error had upon the
6 jury’s verdict. Id.
7 “An error is harmless unless the ‘record review leaves the conscientious
8 judge in grave doubt about the likely effect of an error on the jury’s verdict . . .
9 [i.e.,] that, in the judge’s mind, the matter is so evenly balanced that he feels
10 himself in virtual equipoise as to the harmlessness of the error.’” Padilla v.
11 Terhuns, 309 F.3d 614, 621-22 (9th Cir. 2002) (quoting O’Neal v. McAninch, 513
12 U.S. 432, 435, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995)). The Ninth Circuit has
13 observed that harmlessness, in terms of trial errors, is defined as the “absence of a
14
15 16
In his objections, Respondent repeatedly argues that the admission of
16 Petitioner’s confession was necessarily harmless because there was sufficient
evidence to convict Petitioner without the confession. (See, e.g., Objections at 9
17 (“The eyewitness testimony, combined with the GSR evidence, was sufficient to
18 support Petitioner’s conviction and thus, the admission of the confession, if found
to be error, was harmless.”); id. at 11 (“In sum, even assuming it was error to admit
19 Petitioner’s confession, there was ample other evidence supporting Petitioner’s
20 conviction, thus, any error in admitting Petitioner’s confession was patently
harmless under Brecht. The Magistrate Judge erroneously found that there was
21
prejudicial error.”); see also id. at 8 (“The testimony of a single witness is
22 sufficient to support a conviction, and the question of a witness’s credibility is
23 properly entrusted to the jury.”); id. (“Accordingly, absent the confession evidence,
the testimony of Nava and Hernandez was sufficient to support Petitioner’s
24 conviction.”).) However, as Kotteakos (supra) makes clear, the prejudice analysis
25 requires a more searching analysis than that applicable to sufficiency of the
evidence claims. Moreover, the initial Report and Recommendation repeatedly
26 acknowledged that, absent the confession, there was sufficient evidence to support
27 the jury’s verdict. (See Report and Recommendation at 36, 40, 48.) As such,
Respondent’s arguments regarding the sufficiency of the evidence are neither
28 persuasive nor applicable.
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1 ‘grave doubt.’” United States v. Hitt, 981 F.2d 422, 425 n.2 (9th Cir. 1992)
2 (citing Kotteakos, 328 U.S. at 765).
3 When analyzing the prejudicial effect of a defendant’s erroneously admitted
4 confession, reviewing courts must be cognizant of the unique value and weight
5 that a confession carries in the eyes of a juror. As the Supreme Court has
6 explained, “[a] confession is like no other evidence. Indeed, ‘the defendant’s own
7 confession is probably the most probative and damaging evidence that can be
8 admitted against him.’” Arizona v. Fulminante, 499 U.S. 279, 296, 111 S. Ct.
9 1246, 113 L. Ed. 2d 302 (1991). The impact of a confession can be so “profound”
10 that a reviewing court may “‘justifiably doubt [a jury’s] ability to put [a
11 confession] out of mind even if told to do so.’” Id.
12 The impact of a confession, however, depends on how comprehensive the
13 confession is. See id. Thus, “[w]hile some statements by a defendant may
14 concern isolated aspects of the crime or may be incriminating only when linked to
15 other evidence, a full confession in which the defendant discloses the motive for
16 and means of the crime may tempt the jury to rely upon that evidence alone in
17 reaching its decision.” Id.
18 Here, the impact of Petitioner’s confession was necessarily profound. In his
19 confession, Petitioner provided a detailed account of how and why he committed
20 the charged crime. Moreover, the confession was not incriminating only when
21 linked with other evidence; rather, if accepted as true, it conclusively established
22 Petitioner’s guilt. And, because the confession was recorded and played for the
23 jury, Petitioner had no available avenues to persuade the jury that the confession
24 was unbelievable, other than to argue that it was coerced – the very reason that it
25 should have been excluded from evidence in the first place.
26 Notwithstanding these facts, Respondent contends that the admission of the
27 confession was harmless in light of the other evidence offered to prove
28 Petitioner’s guilt. Putting aside Petitioner’s coerced confession, the State’s case
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1 against Petitioner essentially boiled down to the following evidence: (1) the
2 eyewitness testimony of Hernandez, who identified Petitioner as the shooter
3 shortly after the shooting and at trial; (2) the eyewitness testimony of Nava, who
4 purportedly corroborated some aspects of Hernandez’s testimony; (3) the fact that
5 Petitioner was seen driving in, and later fleeing from, a car matching the make,
6 model, and appearance of the car described by Hernandez and Nava; (4) the
7 testimony of the State’s forensic expert, who testified that particles found on
8 Petitioner’s hand were consistent with his having fired a gun; (5) the testimony of
9 two officers, both of whom testified that Petitioner fled when they attempted to
10 arrest him shortly after the shooting; and (6) the testimony showing that the
11 shooter declared himself to be a member of the gang to which Petitioner belonged.
12
13 At first blush, the combined weight of this evidence would seem to suggest
14 that the jury likely would have found Petitioner guilty even if it had not
15 considered Petitioner’s coerced confession. But, as explained below, a more
16 searching review of the record shows that each aspect of the State’s case was open
17 to attack and that, taken together, the weaknesses in the evidence leave grave
18 doubt as to whether the jury would have returned a guilty verdict absent
19 Petitioner’s coerced confession.
20 (a) The Prosecutor’s Use of Petitioner’s Confession
21 One way to gauge the prejudicial impact of erroneously admitted evidence
22 is to look to how the prosecutor used the evidence. When the prosecutor
23 emphasizes the importance of the erroneously admitted evidence during opening
24 statements and closing arguments, the admission of the evidence is likely to be
25 found prejudicial.17 See Maxwell v. Roe, 628 F.3d 486, 508 (9th Cir. 2010)
26
27
17
In his objections, Respondent suggests that the undersigned believes that
28 (continued...)
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1 had heard any evidence in this case, it knew that it would hear Petitioner say that
2 he shot Nava, explain why he did so, and detail how he did so. Thereafter, the
3 prosecutor continued to display his understanding of the critical importance of
4 Petitioner’s confession by eliciting expert testimony to establish its reliability.
5 Specifically, the prosecutor questioned the state’s gang expert about whether a
6 gang member would lie to another gang member about committing a crime. In
7 response, the gang expert opined that a gang member would never lie to another
8 gang member about committing a crime because of fear of reprisal if the lie was
9 discovered. (RT 1407.)
10 Moreover, the entirety of the prosecutor’s closing argument was structured
11 around Petitioner’s confession. Indeed, the prosecutor began his closing argument
12 by reminding the jury that Petitioner had admitted to shooting Nava and that
13 Petitioner had provided details about the shooting:
14 Good morning, ladies and gentlemen. As I told you in opening
15 statement, gang retaliation is why this incident occurred. The
16 defendant’s own mouth, from his own lips, tells you that he shot
17 Antonio Nava not once, but twice in the back of the head. He tells
18 you that the gun went off three times. He tells you that he used a
19 revolver, a 22-caliber revolver, to shoot Antonio Nava. He tells you
20 that Tono, Antonio Sanchez and Rhino, his crime partner, Juan
21 Sandoval, were with him. And he tells you why he did it. He did it
22
23 18
(...continued)
24 defendant say within moments “I’m Rams. I’m Colonia Chiques,”
25 when the defendant is in an adjacent cell blocked by a wall. You will
hear in that conversation the defendant say “yeah, I shot him.” You
26 will hear say why he shot him. . . . [¶] . . . And the defendant says that
27 he used a 22 revolver and he chased Mr. Nava down, and he fell and
he went up behind him and he shot him.
28 (RT 1095-96.)
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1 There is, moreover, little reason to believe that the jury was swayed by
2 Hernandez’s ability to identify Petitioner at Petitioner’s first and third trials. As
3 an initial matter, these identifications came after the preliminary hearing – where
4 Hernandez flatly admitted that he did not remember what the shooter looked like
5 and where he conceded that the shooting had occurred too long ago for him recall
6 the shooter’s appearance. Thus, the jury would have no reason to believe that,
7 with the passage of more time, Hernandez’s memory improved enough to
8 accurately identify Petitioner as the shooter. And, importantly, when Hernandez
9 identified Petitioner at the first and second trial, Petitioner was sitting at the
10 defendant’s table. An identification under such circumstances, while not
11 inadmissible, is inherently suggestive, regardless of the witness’s prior inability to
12 identify Petitioner. See Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d
13 401 (1972); United States v. Domina, 784 F.2d 1361, 1368 (9th Cir. 1986)
14 (acknowledging “the inherent suggestiveness of in-court identifications” and
15 equating in-court identification with “show-up” pre-trial identification); United
16 States v. Williams, 436 F.2d 1166, 1168 (9th Cir. 1970) (“[T]he usual physical
17 setting of a trial may itself provide a suggestive setting for an eye-witness
18 identification.”).
19 Furthermore, Hernandez’s description of the shooter at trial differed from
20 his pre-trial descriptions of the shooter. For example, at trial, Hernandez, who
21 stood approximately 6'0, testified that the shooter was short and not as tall as
22 Hernandez. But, before trial, Hernandez told police that he and the shooter were
23 the same size, even though Petitioner stood only 5'6. Similarly, at trial,
24 Hernandez testified that the shooter had a moustache, but previously he testified
25 that he could not remember if the shooter had a moustache.
26 Had Hernandez consistently identified Petitioner in the past, the Court
27 would be more inclined to believe that the jury likely credited Hernandez’s in-
28 court identifications. However, as illustrated above, Hernandez was anything but
41
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1 The trial court observed that Hernandez “obviously [had] some kind of issue” and
2 found it necessary to make a record of his behavior. (Id. at 1178-79.) Likewise,
3 during his cross-examination of Hernandez, defense counsel twice interrupted his
4 questioning to inquire about whether Hernandez was all right and whether he was
5 under the influence of medication or lack of sleep. (See RT 1158, 1174.) Given
6 that this behavior was apparent to both defense counsel and the trial court, there is
7 no reason to believe that it went unnoticed by the jury. On the contrary, defense
8 counsel, without objection from the prosecutor, shone a spotlight on Hernandez’s
9 inexplicable behavior:
10 Heck, you saw Mr. Hernandez. You saw his demeanor. He was
11 nodding off, literally, in the witness stand. He couldn’t keep his eyes
12 open. I had to ask him, Mr. Hernandez, have you taken any
13 prescription medication today? And I wasn’t being facetious. You
14 all saw him. He’s falling asleep at the witness stand. Nodding off.
15 And this is who you’re supposed to believe? Couldn’t remember a
16 thing.
17 (RT at 1562.)
18 All of this is not to say that a reasonable juror could not find Hernandez’s
19 testimony credible. But, in conducting the Brecht harmless error analysis, the
20 Court is not required to presume that the jury did, in fact, believe that Hernandez
21 was a credible witness. Compare Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
22 Ct. 2781, 61 L. Ed. 2d 560 (1979) (stating that, in sufficiency of evidence claims,
23 reviewing courts “must presume – even if it does not affirmatively appear in the
24 record – that the trier of fact resolved any such conflicts in favor of the
25 prosecution, and must defer to that resolution”). And, considering the
26 inconsistencies in his testimony, his purported lack of memory, his repeated
27 inability to identify Petitioner as the shooter, and his bizarre trial behavior, the
28 ///
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1 Court has grave doubt that a reasonable juror would find him credible, had it not
2 been for the fact that his testimony was corroborated by Petitioner’s confession.22
3 (c) The GSR Evidence
4 Perhaps the strongest evidence of Petitioner’s guilt – absent his confession
5 – was the testimony of Margaret Kaleuati, the criminalist who performed a GSR
6 analysis on Petitioner’s hands. On the surface, Kaleuati’s findings would seem to
7 be persuasive evidence of Petitioner’s guilt and, on some level, would appear to
8 bolster the other, less-persuasive evidence offered to prove the case against
9 Petitioner. However, the jury had several good reasons to conclude that
10 Kaleuati’s testimony did not establish even a reasonable likelihood – let alone
11 establish beyond a reasonable doubt – that Petitioner fired a gun on the day on
12 which Nava was shot.
13 First, despite her findings, Kaleuati offered only an equivocal opinion on
14 whether Petitioner fired a gun. Specifically, she testified as follows: “The
15 conclusion was that [Petitioner] may have discharged a firearm or had his hands in
16 an environment of gunshot residue.” (RT 1214 (emphasis added).) In other
17 words, Kaleuati was unable to, or unwilling to, state that it was more likely than
18 not that Petitioner fired a gun – rather, she allowed only for the possibility that it
19 “may have” happened. And, even in allowing for that possibility, Kaleuati opined
20 that Petitioner may have merely come into contact with an environment of GSR.
21 More importantly, when asked directly if she could say with “any degree of
22 scientific certainty” whether Petitioner fired a gun on the day of the shooting,
23 Kaleuati candidly answered, “No.” (RT 1225.)
24
22
25 In his objections, Petitioner cites a series of cases for the proposition that “there
is no requirement that an identification be lock-step in line with other testimony to
26 be considered credible.” (Objections at 8.). Those cases and the accompanying
27 argument, however, are inapplicable here because they go only to whether the
eyewitness testimony at issue was admissible. Here, however, there is no question
28 regarding the admissibility of Hernandez’s testimony.
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1 hands, as Petitioner did when he was placed in the police car, Kaleuati conceded
2 that she was aware of no testing to show how, or to what extent, the use of paper
3 bags would limit GSR transference in police cars.23
4 Third, the number of characteristic GSR particles found on Petitioner
5 further calls into question the weight of the GSR evidence. As set forth above,
6 Kaleuati testified that it typically takes three to five hours for GSR to be removed
7 from a person’s hands. Here, however, Officer Webster noticed the Chrysler 300
8 after having heard the dispatch regarding the car, and Petitioner was spotted
9 within 2.3 miles of the shooting. Yet, testing revealed that only one GSR
10 characteristic particle was found on Petitioner. This fact appears to be somewhat
11 at odds with Kaleuati’s testimony since, presumably, not a lot of time elapsed
12 between the shooting and the time when Petitioner was tested for GSR. And
13 notably, one of the questions that the jury asked during its deliberations pertained
14 to when Officer Webster started following the Chrysler. (CT 486 (“Read back of
15 testimony [of] Of[fic]er Webster – we are looking for the time he started
16 following the car.”).)
17
18
19
20
23
In his objections, Respondent contends that “the Magistrate Judge improperly
21
diminished the important fact that Petitioner’s hands were placed in paper bags
22 immediately after being taken into custody and before being transported to the
23 police station.” (Opposition at 9.) This contention is incorrect, as the initial
Report and Recommendation noted that Petitioner’s hands were in bags. (Report
24 and Recommendation at 41-42.) Had there been testimony about how that fact
25 impacted transference, that testimony would been relevant to the prejudice
analysis. However, the only testimony on point regarding the impact of the use of
26 plastic bags was Kaleuati’s concession that she was aware of no testing to show
27 how, or to what extent, the use of paper bags would limit GSR transference in
police cars. Regardless, as explained above, the officer’s use of paper bags would
28 in no way impact Petitioner’s defense that Sandoval was the shooter.
46
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1 On its own, the lack of more characteristic GSR particles would not seem to
2 undermine the conclusion that Petitioner fired a gun. After all, some amount of
3 time passed from the arrest to the time when Petitioner’s hands were tested,
4 although the prosecutor elicited no testimony on that point. But, when considered
5 with the testimony regarding GSR transference, the defense theory pursued by
6 Petitioner, the equivocal nature of Kaleuati’s conclusion, and the weaknesses in
7 the eyewitness testimony, the Court cannot say with any degree of confidence
8 that, absent Petitioner’s confession, the jury would have concluded that the GSR
9 evidence showed that Petitioner fired a gun on the day Nava was shot.
10 (d) Petitioner’s Flight From Police
11 A defendant’s flight from a crime or threat of arrest may evidence a
12 consciousness of guilt. People v. Garrison, 47 Cal. 3d 746, 773, 254 Cal. Rptr.
13 257, 765 P.2d 419 (1989) (“[E]vidence of flight supports an inference of
14 consciousness of guilt.”). But, as the Ninth Circuit has long-acknowledged,
15 “[f]light and concealment of identity can be consistent with innocence, or with
16 guilt of misconduct unknown to the Government.” United States v. Silverman,
17 861 F.2d 571, 581 (9th Cir. 1988); see also United States v. Dixon, 201 F.3d 1223,
18 1232 (9th Cir. 2000). And, as the jury was instructed, flight alone is not enough
19 to establish a defendant’s guilt.24 See CALCRIM 372 (“[E]vidence that the
20 defendant fled [or tried to flee] cannot prove guilt by itself.”).
21 Here, in light of the weaknesses in the other evidence purportedly showing
22 Petitioner’s guilt, the Court has grave doubt that, under the unique circumstances
23 of this case, the jury would have believed that Petitioner’s flight from police
24 evidenced his consciousness of guilt of attempted murder. As an initial matter,
25
26 24
In making this statement, the Court in no way means to suggest that the only
27 evidence of Petitioner’s guilt was his flight from police. Rather, this statement is
meant to convey the proposition that the evidentiary value of a defendant’s flight
28 from police is limited.
47
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1 Petitioner was a gang member and may have had numerous reasons to flee from
2 police of which the pursuing officers were unaware. And, according to his theory
3 of defense, Petitioner had good reason to flee even if he did not shoot Nava.
4 Indeed, his defense theory was that he was present when his fellow gang member
5 shot someone.
6 Nevertheless, had Petitioner fled in the face of uniformed officers driving in
7 a marked patrol car, the Court would be inclined to believe that the jury inferred
8 Petitioner’s consciousness of guilt from his flight. However, the officers who
9 attempted to detain Petitioner were not uniformed officers; rather, they were
10 undercover officers, and the officer who pursued Petitioner on foot was wearing a
11 t-shirt and jeans. Moreover, neither of the officers who followed, and attempted
12 to detain, Petitioner was driving a car that would be recognizable as police
13 vehicle. Instead, one officer was driving a pick-up truck, and the other was
14 driving an SUV. Both officers testified that it would not be apparent to anyone
15 that either of the vehicles was, in fact, a police vehicle.
16 Furthermore, the circumstances of the officers’ attempts to detain Petitioner
17 also undercut the idea that the jury necessarily would conclude that Petitioner’s
18 flight evidenced his consciousness of guilt. According to the testimony of the
19 pursuing officer, the car in which Petitioner was driving abided by the traffic laws,
20 with the exception of going between five and ten miles per hour above the speed
21 limit. The officer further testified that the driver of the car appeared to take
22 evasive action – that is, the driver of the car drove in a manner that suggested that
23 he knew he was being followed. Subsequently, the officer saw Petitioner run, as
24 the officer drew his gun and ordered Petitioner to stop.
25 The problem with these facts is that they support conflicting inferences,
26 both of which are quite reasonable. They could most certainly support an
27 inference that Petitioner and his companions somehow deduced that they were
28 being followed by undercover police officers and that Petitioner ran in an attempt
48
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1 to evade arrest. However, they could just as reasonably suggest that Petitioner
2 and his companions realized that they were being followed by an unknown person
3 with an unknown agenda, who, upon getting out of his car, pulled a gun and
4 pursued Petitioner. Although the officer, while he was pursuing Petitioner,
5 identified himself as an officer, Petitioner had no reason to believe him. And, as
6 the facts of this case make clear, people are not always who they claim to be.
7 Had the evidence against Petitioner been on a more solid footing, the Court
8 would be inclined to believe that the jury would have resolved the conflicting
9 inferences in favor of Petitioner’s guilt even without Petitioner’s confession. But,
10 because the case against Petitioner was primarily based on unreliable and
11 inconsistent eyewitness testimony and inconclusive forensic evidence, the Court
12 cannot confidently say that the jury would have resolved the conflicting inferences
13 against Petitioner, had the jury not been exposed to his detailed confession.25
14 (e) Petitioner’s Gang Status
15 Nava testified that the shooter yelled “Colonia Chiques” before firing. He
16 also testified that one of the passengers in the Chrysler 300 was wearing a Dallas
17 Cowboys hat. Although Petitioner was a Colonia Chiques gang member, there is
18 no reason to believe that, absent Petitioner’s confession, the jury would have
19 believed that the shooter’s reference to Petitioner’s gang meant that Petitioner
20 was, in fact, the shooter. As an initial matter, Petitioner was only one of
21
25
22 In his objections, Respondent argues that “[t]he Magistrate Judge appears to
23 suggest that because the police officers pursuing Petitioner were in unmarked
vehicles, and not wearing uniforms, the jury could not infer guilt from Petitioner’s
24 flight.” (Objections at 10.) This argument misconstrues the initial Report and
25 Recommendation because, like here, the initial Report and Recommendation
acknowledged that “[the facts surrounding Petitioner’s flight] could most certainly
26 support an inference that Petitioner and his companions somehow deduced that
27 they were being followed by undercover police officers and that Petitioner ran in
an attempt to evade arrest.” (Report and Recommendation at 44 (emphasis
28 added).)
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1 approximately 1,000 Colonia Chiques gang members. And, as the State’s gang
2 expert testified, most Colonia Chiques gang members wore Dallas Cowboys’
3 memorabilia. Consequently, neither the reference to the Colonia Chiques nor the
4 fact that Sandoval was wearing a Cowboys hat excluded all other possible
5 suspects. Instead, it simply established a fact that was not hotly contested:
6 namely, that the shooter was a Colonia Chiques member.
7 Moreover, that the shooter was a Colonia Chiques gang member was
8 consistent with Petitioner’s defense theory. As explained above, Petitioner’s
9 defense was that Sandoval was the shooter. Like Petitioner, Sandoval was a
10 Colonia Chiques gang member. Thus, had the jury not heard Petitioner’s
11 confession, the jury reasonably could have concluded that Sandoval, or any
12 Colonia Chiques gang member other than Petitioner, was the shooter.26
13 To be sure, the fact that Sandoval was wearing a Cowboys hat undermined
14 Petitioner’s defense that Petitioner was not the shooter. Based on that fact, the
15 jury could have concluded that Sandoval was not the shooter because Nava
16 testified that the front passenger was wearing a Cowboys hat and that the shooter
17 – who was bald – was not wearing a hat.
18 The Court, however, has grave doubt that, absent the confession, the jury
19 would have reached this conclusion for two reasons. First, as set forth above,
20 Nava was not a particularly strong witness for the prosecution. On the contrary,
21 he flatly stated that he did not want to testify, and he refused to cooperate with the
22 investigation into the murder. Moreover, he identified someone other than
23
24 26
Citing the foregoing two paragraphs, Respondent argues that the undersigned
25 believes that Petitioner had no motive to kill Nava. (See Objections at 11.) This
argument is puzzling in that nothing in the foregoing two paragraphs supports it.
26 Rather, the two paragraphs simply note that the evidence of gang membership did
27 not exclude any of Petitioner’s 1,000 fellow Colonia Chiques gang members and
was consistent with Petitioner’s defense that Sandoval, also a Colonia Chiques
28 gang member, was the shooter.
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1 Petitioner as the shooter and offered a description of the shooter that both ruled
2 out Petitioner and conflicted with Hernandez’s description of the shooter.
3 Accordingly, the jury had reason to doubt the accuracy of Nava’s memory, as well
4 as the veracity of his testimony.
5 Second, there was substantial witness testimony to support Petitioner’s
6 theory that Sandoval was the shooter. Both Nava and Hernandez testified that the
7 shooter got into the car’s rear passenger seat after the shooting. Indeed, this fact is
8 one of the few facts about the shooter on which Nava and Hernandez agreed. The
9 undercover officers who spotted and then pursued the car, however, testified that
10 Sandoval was in the rear passenger seat and that Petitioner was in the front
11 passenger seat. In other words, Sandoval was in the shooter’s seat. Given that
12 Petitioner and his companions were spotted within 2.3 miles of the shooting,
13 Petitioner and Sandoval presumably had little time or opportunity to switch seats,
14 although, again, the prosecutor elicited no testimony on that point. Thus, the jury
15 had good reason to doubt Nava’s testimony that the passenger, as opposed to the
16 shooter, was wearing a Cowboys hat. And, given the state of the evidence, the
17 Court has grave doubt as to whether the jury would have accepted Nava’s
18 testimony on this point had it not heard Petitioner confess in detail to the shooting.
19 (f) Procedural History
20 The procedural history in this case also supports the conclusion that the
21 admission of the confession was prejudicial. The trial that resulted in Petitioner’s
22 conviction was not the first trial regarding the attempted murder of Nava: it was
23 the third trial. In the first trial, where Petitioner’s confession was admitted into
24 evidence, the jury was unable to reach a verdict, even though it deliberated for
25 nearly seven hours. Moreover, the hung jury in that trial did not involve a lone,
26 ///
27
28
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1 hold-out juror. Rather, two jurors maintained that Petitioner was not guilty. And,
2 in an earlier ballot, three jurors had voted in favor of acquittal.27
3 Furthermore, the jury’s deliberation in the third trial indicates that the jurors
4 believed that the case against Petitioner was a close one. See Kennedy v. Lockyer,
5 379 F.3d 1041, 1056 (9th Cir. 2004) (fact that first trial ended in hung jury and
6 that jury in second trial deliberated for prolonged period of time before reaching a
7 verdict indicated that constitutional error had substantial and injurious effect on
8 jury’s verdict). Even though, as in the first trial, the jury heard Petitioner provide
9 a detailed confession about how he attempted to murder Nava and why he did so,
10 the jury nevertheless deliberated for approximately seven hours before returning
11 its guilty verdict.
12 A seven-hour deliberation would not be considered unusually lengthy for a
13 typical case involving an attempted murder. But, most attempted murder cases do
14 not include a tape recording of the accused providing a detailed account of how
15 and why he committed the charged crime. Placed in that context, the jury’s need
16 to deliberate for seven hours, coupled with the prior hung jury, indicates that this
17 case was, indeed, a close case. See Fulminante, 499 U.S. at 296 (acknowledging
18 that “a full confession in which the defendant discloses the motive for and means
19 of the crime may tempt the jury to rely upon that evidence alone in reaching its
20 decision”); see also id. (recognizing that impact of full confession can be so
21 “profound” that reviewing court may “‘justifiably doubt [a jury’s] ability to put [a
22 confession] out of mind even if told to do so.’”).
23 Bolstering that indication is the fact that, during its seven hour deliberation
24 in this case, the jury questioned the evidence against Petitioner. The jury asked
25 for a read back of the testimony of the officer who pursued the Chrysler 300 to
26
27
27 The case did not go to the jury in Petitioner’s second trial. Rather, the trial
court declared a mistrial for reasons that have no bearing on Petitioner’s claim for
28 relief.
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1 determine when the pursuit began. The jury also requested a read back of the
2 portion of Nava’s testimony regarding the photographic line-up in which he
3 participated – the same line-up from which Nava identified someone other than
4 Petitioner as the shooter. At least one of these requests – if not both – pertained to
5 evidence that was beneficial to Petitioner.
6 While neither the length of the jury’s deliberations nor the jury’s request for
7 read backs definitively shows how the individual jurors viewed the evidence
8 against Petitioner, they nevertheless cast more doubt on the proposition that the
9 jury would have reached the same verdict absent Petitioner’s confession. Put
10 simply, the deliberations in both the first and the third trial suggest that the jury
11 believed that this was a close case. This fact serves only to punctuate the lack of
12 confidence that the Court has regarding whether the jury in the third trial would
13 have reached the same result had it not been exposed to the single most
14 incriminating piece of evidence against Petitioner.
15 ***
16 Petitioner’s confession was the lynchpin of the State’s case against him. It
17 provided a detailed account of Petitioner’s role in the shooting and set forth his
18 reasons for shooting Nava. Nonetheless, the prosecution presented other
19 competent evidence to prove Petitioner’s guilt – evidence, which, on its own,
20 would be sufficient to support the jury’s verdict. Although the other evidence
21 supported reasonable inferences pointing towards Petitioner’s guilt, it likewise
22 supported equally reasonable inferences casting serious doubt about his guilt.
23 Presumably understanding this fact, the prosecutor emphasized Petitioner’s
24 confession at nearly every turn in his closing arguments. Yet, even with
25 Petitioner’s detailed confession, one jury deadlocked, and a second jury
26 deliberated for seven hours before reaching its verdict. Given these facts, the
27 Court has grave doubt that, absent the Petitioner’s confession, the jury would have
28 found Petitioner guilty. Accordingly, habeas relief is warranted.
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1 VII. RECOMMENDATION
2 The Magistrate Judge therefore recommends that the Court issue an order:
3 (1) approving and adopting this Final Report and Recommendation; and (2)
4 directing that judgment be entered granting the Petition.
5
6 DATED: February 12, 2014
7
8 /S/ FREDERICK F. MUMM
FREDERICK F. MUMM
9 United States Magistrate Judge
10
11 NOTICE
12 Reports and Recommendations are not appealable to the Court of Appeals,
13 but are subject to the right of any party to timely file Objections as provided in the
14 Local Rules Governing the Duties of the Magistrate Judges, and review by the
15 District Judge whose initials appear in the docket number. No Notice of Appeal
16 pursuant to the Federal Rules of Appellate Procedure should be filed until entry of
17 the Judgment of the District Court.
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