Opinion
No. C 13-4199 LHK (PR)
12-04-2014
JONATHAN CARDENAS, Petitioner, v. GARY SWARTHOUT, Respondent.
NOT FOR CITATION ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY
Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the petition should not be granted. Respondent has filed an answer. Although given an opportunity, petitioner has not filed a traverse. Having reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled to relief based on the claims presented, and DENIES the petition.
PROCEDURAL HISTORY
In 2008, a jury found petitioner guilty of second degree murder. The jury also found true the allegation that petitioner personally used a knife. Petitioner was sentenced to a term of 16 years to life in state prison. On March 15, 2012, the California Court of Appeal affirmed petitioner's convictions and judgment. On June 13, 2012, the California Supreme Court denied petitioner's petition for review.
On September 10, 2013, petitioner filed the underlying federal petition for writ of habeas corpus.
BACKGROUND
The following facts are taken from the California Court of Appeal's opinion.
A. Prosecution Case
On October 6, 2008, Cardenas was at home drinking beer with his friends Paris Lenc and Ryan Lanthier. Cardenas had a shiny pocket knife on his dresser. The three went to Lenc's home and smoked some marijuana. Lenc grabbed two steak knives, keeping one and handing the other to Lanthier. At some point, Lenc got a call from a minor female, N.C., asking him to come hang out with her.
N.C. and her friend Samantha I. (also a minor) had rented a motel room at the Paradise Inn near the Santa Cruz Beach Boardwalk. Cardenas, Lenc and Lanthier met Samantha and N.C. at a bowling alley near the Paradise Inn. Neither N.C. nor Samantha had ever met Cardenas or Lanthier before, but Samantha was immediately attracted to Cardenas. The group went back to the motel room, where they drank some beer and Samantha flirted with Cardenas.
After 15 to 30 minutes, Samantha and N.C. went to a nearby liquor store to buy more beer. On the way to the store, they ran into Robbie Reynolds and his two friends, Joseph Paul and Jose Reyes. The group continued to the store, where Samantha bought six large cans of beer, using a fake I.D., and Paul bought a cigar, which they would use to smoke marijuana. Samantha and N.C. invited Reynolds, Paul and Reyes back to the motel room to play games and drink beer. Paul got the impression that they would "smoke and drink and just chill."
When they got back to the room, Samantha and N.C. entered first, followed by Reynolds and the other two men. When they saw Cardenas, Lenc and Lanthier in the room, the three newcomers became quiet. Neither Samantha nor N.C. had mentioned that there were other men in the room already. Paul recognized Cardenas, though he did not know his name, and he noticed that Cardenas, Lenc and Lanthier were all wearing black.
Paul sat in a chair, while Reynolds sat on one end of the bed and Reyes sat down on the other end. Reynolds took out some marijuana, which he gave to Paul to roll into the cigar. Samantha placed her purse on the bed, opened a beer and passed out the other beers.
After a couple of minutes, Paul said one of the other three men asked, "where you from, where you guys from?" which he understood was a gang-related question. Lanthier volunteered he was from "West Side Santa Cruz," and Reynolds may have said he used to live in West Side Santa Cruz, but now was
"downtown, and we don't gangbang or anything." Lenc was quiet, but Cardenas and Lanthier asked if the other men were "down with gangbanging." Paul, Reynolds and Reyes said they were not, but "just like to chill and smoke and have a good time."
Cardenas, who was wearing an Atlanta Braves cap, introduced himself as "Cartoon," and said he was from West Side Santa Cruz but had moved from Salinas to Santa Cruz. He also said he was a Northerner, which Paul understood to mean "Norteno."
Paul asked Cardenas if he remembered him, and Cardenas said he did. Cardenas had recently beaten up one of Paul's friends. Cardenas asked "are you with him [i.e., the friend who got beaten up]?" but Paul said he was not. Smiling, Cardenas said he "beat him up pretty good." After that exchange, Paul stopped talking to Cardenas, Lenc and Lanthier.
Cardenas and Samantha were continuing to flirt and went into an adjoining bedroom for 15 to 45 minutes. They talked and had sex. Everyone else remained in the main room, and Reynolds turned the volume up on the television to try to cover the sounds of the two having sex in the back. Reynolds talked about Samantha being promiscuous and asked N.C. why she did not warn Cardenas that Samantha was "nasty." Everyone joked and laughed about how Samantha had just met Cardenas and was having sex with him. Reynolds took a marker and wrote "FTW" [FN2] on the wall, then started going through Samantha's purse on the bed.
FN2. "Fuck the world."
After Samantha and Cardenas returned to the room, someone suggested they needed more alcohol, and Samantha said she had money. She looked in her purse and discovered she was missing $60. Samantha asked everyone but Cardenas and N.C. where her money was. Reynolds was laughing and said, "why would I take your money, I got money." Samantha started getting more aggressive and louder, demanding that Reynolds, Paul and Reyes turn out their pockets. Reynolds would not do so, and said, "bitch, no one wants your money." Samantha told Reynolds, Paul and Reyes to leave, and then she and Reynolds continued to yell and swear at each other at the doorway for a few minutes. Samantha kept saying "fuck you, Robbie" and "that's fucked up, Robbie." Reynolds got angry and said, "bitch, shut up."
Reynolds started walking towards the motel office, and Paul said, "Come on," "if you've got it [i.e., Samantha's money], come back and give it to her." As Samantha continued to curse at Reynolds he walked back to the door of the room and, laughing, threatened to slap her. Cardenas was standing behind Samantha, to one side.
Reynolds slapped or hit Samantha on the cheek. [FN3.] Almost immediately, Cardenas punched Reynolds in the jaw. Reynolds' knees buckled, and he fell back against the door, but then got up swinging, as if trying to push Cardenas away. Cardenas stepped back and Reynolds' swing missed. The two then began swinging at each other. Paul and Reyes came back into the room and Reyes saw Lanthier and Lenc moving towards Reynolds. Reyes pushed Lanthier, who fell on the bed. Lanthier got up, pulled out a knife and threatened Reyes, telling him to get out.
FN3. Samantha testified Reynolds punched her with his hand closed. Paul testified it was an open-handed slap. Reyes recalled it being more of a "push."
Paul told Lenc to back away from Cardenas and Reynolds so it would be a fair fight. He looked over and saw that Lanthier had pulled out a knife. As he turned back to Lenc, Lenc pulled out a short switchblade knife, so Paul grabbed him and swept his leg out from underneath him, knocking him to the floor. Paul saw Cardenas lying on the bed with Reynolds leaning over him, trying to hit him in the chest. Reynolds' torso was within a few inches of Cardenas' torso. Cardenas' hand was on Reynolds' shoulder, pulling him down toward himself. Paul saw Reynolds land three punches on Cardenas, whereas five or six of Cardenas' punches connected. The fight lasted about a minute or two.
About 20 seconds after Reynolds and Cardenas were fighting on the bed, they separated, and Reynolds walked out of the motel room, with Paul and Reyes behind him. Lanthier flashed his knife and told Reyes, "get out," "we don't want to stab nobody, get out." Paul did not see Cardenas holding a knife and did not know Reynolds had been stabbed. Cardenas walked backward toward the door, saying "I'm cool" twice.
Reynolds walked away from the room, touched his ribs and then fell face first in the parking lot, apparently unconscious. Paul tried to pick him up, and realized Reynolds had been stabbed. He saw blood on Reynolds' chest and told Reyes to call 911.
Reyes saw Reynolds appeared to be struggling for breath, and he tried to cover the wound while he talked to him. Reyes called 911. He later claimed he did not recall seeing Cardenas with a knife, but admitted he did not want to talk about the incident.
Paul was angry and wanted to fight Cardenas, but Cardenas had run away up the street. Paul sprinted after him, but lost him. When he heard sirens, he ran down the hill and saw Reyes holding Reynolds. Because he believed there was a bench warrant for his arrest for failing to appear in court, Paul ran off down the street. Paul encountered Lenc, who held up his hands to indicate he did not want to fight. Lenc said, "I didn't know he was going to stab your homie." In his interview with police, Paul said Lenc had said, "you seen him, he just stabbed your homie." Paul walked around downtown for a couple of hours, then fell asleep at a park across from Reynolds' house.
1. Samantha's trial testimony
Samantha testified that after Reynolds left the motel room and she was about to close the door, he said, "well, I should hit a bitch." She responded, "well, hit a bitch then." As she stood in the doorway, Reynolds punched the left side of her face. Samantha grabbed her nose, and next saw Cardenas and Reynolds fighting. She did not know who started the fight. At one point she saw Reynolds leaning over Cardenas who was lying on the bed with his feet on the floor. Samantha said she saw Reynolds punch Cardenas once, but also said she did not see Reynolds punch him. She did not see Cardenas punch Reynolds, but saw him grab Reynolds to push him off. She had a vague
memory of seeing Cardenas holding Reynolds.
At some point she saw Cardenas standing on a round table next to the bed and admitted telling police Cardenas was standing on a table. Cardenas screamed, but Samantha could not remember what he said. She was not absolutely certain, but thought he may have yelled, "I'm going to stop this fool," or "I'm going to stab this fool."
After Reynolds fell down, Samantha saw "everybody running out the door." When she heard the sirens, she ran away to avoid contact with the police because she herself was a runaway. She went to a nearby motel and called her mother.
Samantha testified she did not see anyone with a knife, and denied remembering that she told the police she saw Cardenas with a knife or that he held a knife in his right hand and pulled it out of Reynolds' side. She admitted liking and having strong feelings for Cardenas, and also admitted lying to police about his name.
Samantha admitted having a tattoo of four dots on her hand, which she said meant she is a "North Sider," and "back[s] up Nortes to the fullest." She testified that she got this tattoo after the murder, and it indicated "you're in a gang, that you have been jumped in."
2. Samantha's police interviews
In her interview with police, however, Samantha said that Cardenas stabbed Reynolds. When Santa Cruz Police Detective Gregory Crofts interviewed Samantha on October 7, it appeared that she was holding back information. After she learned that Reynolds had died, she returned to the police department upset and volunteered more information. She identified Cardenas by name, said he was from Salinas, and he had stabbed Reynolds at the motel.
Samantha told police that Cardenas came forward after Reynolds hit her and began fighting with Reynolds. She and N.C. tried to break up the fight. Cardenas, Lenc and Lanthier all had knives. She mentioned that Cardenas was standing on a table, and she saw him pull out the knife, with the blade protruding between his thumb and index finger. Cardenas was holding the knife in his right hand and stabbed Reynolds on the left while he was partially turned away from Cardenas. However, she also sometimes said that Reynolds fell on the knife. After everyone left the room, Cardenas came back to retrieve his hat.
In her interview with Santa Cruz Police Detective Michael Hedley, Samantha similarly described Reynolds as partially turned away from Cardenas when he was stabbed. Samantha said she "saw [Cardenas] pulling the knife back, and it was kind of like a surprise moment" for her. It was her impression that Cardenas pulled the knife because he was angry. She could not recall if he jumped on the table before or after he stabbed Reynolds, but she "did see him jump on the table." Cardenas was screaming something, and she was unsure what it was, but he "might have said something about the knife."
Prior to trial, District Attorney Inspector Raul Castellanos photographed Samantha's tattoos, which consisted of the four dots on her hand, as well as
the words "Santa Cruz" on her leg. Samantha told Castellanos that she got the four dots tattoo before the murder, and the "Santa Cruz" tattoo afterwards.
3. N.C.'s trial version of the fight
N.C. saw Cardenas and Reynolds hitting each other, saying Reynolds was "going crazy" and "kicking ass." She did not see anyone with a knife. N.C. said she stepped between Cardenas and Reynolds, put her arms around Reynolds and told him to stop. She heard Samantha also telling Reynolds to stop, but could not remember what Samantha was doing otherwise or where anyone else was at the time.
N.C. heard Cardenas yell, while standing on the bed, "I'm going to stab him." She did not think this was serious, so she walked into the bathroom. The next thing she knew, Samantha knocked on the bathroom door and told her to "get out." Samantha appeared scared and everyone had already left the room.
N.C. did not see anyone stabbed and did not see anyone with a knife. She did not recall telling the police that Cardenas had a purple knife. Outside, N.C. saw Cardenas, Lenc and Lanthier running toward the bowling alley and she saw Reynolds on the ground in the parking lot. Samantha was scared and sad. She heard Reyes telling Reynolds to breathe. She called 911, and Reyes told her, "don't tell the cops what happened." Samantha ran away, but she and Reyes stayed with Reynolds.
4. N.C.'s police interview
N.C. and Samantha met up with Cardenas, Lenc and Lanthier by the bowling alley before they went back to the motel room. She and Samantha went downtown to buy more alcohol and ran into Reynolds, Reyes and Paul. They invited them back to the motel room as well.
Reynolds asked Cardenas and his friends if they were West Siders, and they said they were. It seemed as if everyone was getting along. Samantha and Cardenas went into the back room and had sex, and everyone else made fun of them. Reynolds was "talking some shit" about Samantha. When Samantha came back to the main room, she looked in her purse and said her money was missing. She accused Reynolds of taking it and began arguing with him. Reynolds told her to shut up or he would slap her. Samantha said, "just hit me," and he did. Samantha started to cry and everyone started fighting.
N.C. thought Reynolds was "kicking [Cardenas's] ass," and thought Reynolds punched Cardenas quite a few times. Reynolds, Reyes and Paul did not have weapons, but Cardenas had a knife. She saw him stand on a table, holding his purple knife, and saying, "I'm going to stab him." N.C. did not see Reynolds get stabbed and assumed it happened outside, since that is where he fell.
5. Police response
Alexander Ganzel, a City of Santa Cruz police officer, received a dispatch to respond to the Paradise Inn on Second Street at 11:40 p.m. on October 6, 2008. He was the first officer to arrive on the scene and upon parking in the motel lot, he saw three people. Reynolds was lying on his back. Reyes knelt beside him, pressing on his chest, while N.C. stood nearby, crying. Ganzel
ran up to them and asked them who had done this. Reynolds was unresponsive, his eyes were droopy and he was gasping for air. Ganzel looked for injuries and found what appeared to be a knife wound on the left side of Reynolds' chest and a second wound on his chin. Reyes and N.C. both claimed that they had just found Reynolds lying in the parking lot.
Santa Cruz Police Officer William Clayton arrived about the same time as Ganzel. He saw Reynolds struggling to breathe and losing consciousness. When Clayton asked Reynolds what happened, Reyes interrupted and told Reynolds in a defensive and hostile tone, "[d]on't say anything to him."
Santa Cruz Police Officer Sergio Venegas contacted Lenc, who was near the Paradise Inn. Lenc said he had been at home with his mother. When Venegas searched Lenc's room at his house, he collected a knife from the front pocket of a pair of jeans on the floor.
Santa Cruz Police Detective Dave Forbus interviewed Reyes some hours after the murder. Reyes appeared tired, anxious and in shock. He admitted he was scared. Reyes said Cardenas punched Reynolds first, then Lenc hit Reynolds in the face. Reyes saw Cardenas with a knife, and Lanthier brandished a knife at him after Reynolds walked out of the hotel room. Reyes said the fight lasted only 15 seconds. Forbus described Reyes as hesitant and confused; he was fearful of being labeled a snitch.
When Santa Cruz Police Detective David Pawlak interviewed Reyes again on October 7, Reyes was not forthcoming. At first, Reyes claimed the incident had nothing to do with gangs, he did not see any knife and did not see anyone swing at Reynolds. Later, he said there was some pushing. He also said he heard, "West Side," but claimed he paid no attention to that. Reyes did not want to give the police any information and was, in part, afraid of being a snitch. Later, he said all three of the other men - Cardenas, Lenc and Lanthier - had knives.
District Attorney Inspector Lewis [FN4] Schlumbrecht drove Reyes home from the courthouse during the trial. Schlumbrecht said that Reyes was nervous and constantly looking around to see if they were being followed.
FN4. Called to the stand as Kent, but when sworn in, corrected the court that his first name was Lewis.
On October 9, Forbus interviewed Paul, who said Cardenas introduced himself as "Cartoon" and asked, "are you guys down with gangbanging." He said Cardenas said he was a Northerner and his friends said they were West Side, but it was not said aggressively. Reynolds called Samantha a bitch before slapping her; Paul described it as a "little slap." Paul said Cardenas punched Reynolds "out of nowhere." Reynolds fought with Cardenas, trying to put him down, but no one was really winning the fight. The two ended up on the bed because "we were all pushing at them" and there was very little room between the bed and the door.
Paul did not see a knife in Cardenas' hand, did not see him stand on a table and did not hear him threaten to stab anyone. While he was fighting with Lenc, he saw Reynolds walk out. Detective Forbus, who interviewed Paul, described his demeanor as direct, confident and sad.
Lanthier thought Cardenas and Lenc were West Siders, and he admitted telling police they were West Side Nortenos. His nickname was "Ryder," and Lenc's was "Bloody." Lanthier initially did not say much to the police, hoping the situation would "just go away." He admitted in his interview he was trying to protect Lenc.
6. Autopsy
Dr. Richard Mason determined Reynolds' cause of death to be a stab wound to the right ventricle of the heart, resulting in hemothorax and hemopericardium, meaning a collection of blood in the chest and sac around the heart. The knife wound was one inch long and two inches deep, and was inflicted by a single-edged blade with the cutting edge facing the midline of Reynolds' torso. It penetrated between the sixth and seventh rib, perpendicular to his body, and was an "in and out" wound, meaning Reynolds was stationary when the wound was inflicted. It was possible the stabber grabbed Reynolds and pulled him toward the knife.
Immediately after the stabbing, blood began to accumulate in the pleural space around Reynolds' left lung, making him feel like he could not breathe. His blood pressure would have dropped suddenly, causing confusion and panic within about 30 seconds of the stabbing.
Reynolds also had a bruise on his left eye, a bruise on his left elbow, and small bruises on the knuckles of his left pinky and middle fingers. He had an abrasion on his chin consistent with landing on a rough surface, such as asphalt.
Reynolds' blood alcohol level was 0.129 percent and also tested positive for marijuana, meaning he had ingested marijuana anywhere from 30 minutes to one week prior to death. He had $22 in cash and 4.7 grams of marijuana in his pocket.
A purple knife was recovered from an apartment patio not far from the motel, and DNA on the knife matched Reynolds' DNA.
7. Gang evidence
Santa Cruz Police Detective Jose Garcia, a gang expert, was the lead detective in the case. Garcia testified that Nortenos, or Northerners, associate with the color red, as well as the numbers 14 and 4. Cardenas was a member of a Salinas Norteno street gang, Acosta Plaza, at the time of the murder. The Atlanta Braves baseball cap he wore the night of the murder was associated with Acosta Plaza.
Lenc was also a member of a Norteno street gang and had "Northside" tattooed above his eyebrows, as well as an "S" and a "C," representing "Santa Cruz," on his cheeks.
Garcia also testified that Santa Cruz is predominantly a Sureno city, and the Beach Flats area was Sureno territory.
According to Garcia, the concept of respect is very important within a gang.
Respect may be earned by committing violent crimes or by being a good leader. Respect is lost if a gang member acts cowardly, loses a fight, or fails to respond to a challenge, which may consist of a slight, an insult, a challenging look, claiming membership in a rival gang or flashing a rival gang sign/tattoo. When someone claims a gang, it is meant as an assertion of dominance and a challenge to rival gang members. If someone asks "Where you from," the question can actually mean, "What gang are you in?" Any disrespect directed towards anyone closely associated with a gang member, such as family, girlfriends and close friends, is considered disrespect towards the gang member. If someone "punks out" in front of a fellow gang member, it is a problem. Gang members frequently carry weapons, including knives.People v. Cardenas, No. H035900, 2012 WL 882887, *1 - *8 (Cal. App. March 15, 2012).
In gang culture, being a "snitch" can lead to serious, negative consequences, up to and including being killed. A gang expects its members not to talk to the police or anyone outside the gang about fellow gang members and the gang's activities.
DISCUSSION
A. Standard of Review
This court may entertain a petition for 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). The petition 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the 'reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable." 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. Analysis
In the petition, petitioner claims that: (1) the trial court improperly admitted evidence regarding gangs and petitioner's prior statements about gang culture even though there was no evidence that petitioner's offense was gang-related; (2) the trial court erred in refusing petitioner's request to modify CALCRIM Nos. 371 and 372 to instruct the jury that "consciousness of guilt may not be considered in determining the degree of defendant's guilt"; and (3) the cumulative errors prejudiced him.
1. Admission of gang-related evidence
Petitioner argues that the trial court should not have allowed the prosecution to introduce gang evidence or petitioner's prior statements about gang culture because there was no gang enhancement charged, and no allegation that the killing was gang-related.
Respondent argues that this claim is unexhausted. A federal court may deny an unexhausted claim or petition on the merits when it is clear that the applicant does not raise a colorable federal claim. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). Here, because the court has determined that petitioner's claim is not a colorable federal claim, the court need not reach the issue of exhaustion. Rather, the court exercises its discretion and denies the claim on the merits. See 28 U.S.C. § 2254(b)(2) ("[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").
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At trial, the prosecution moved to introduce gang evidence as well as to allow a gang expert to testify about the Norteno gang and gang culture. Cardenas, 2012 WL 882887, at *8. The expert would specifically testify about the "concepts of respect and disrespect in gang culture, the significance of claiming gang membership, the nature of gang assaults, what it means when a gang member arms him/herself and the importance of supporting another gang member." Id. In addition, the prosecution sought to introduce that a few months before the stabbing, petitioner told a police officer that if someone had said something disrespectful about petitioner's mother, he "would not just stand by and do nothing." Id. at *12. Also, petitioner said it would be dangerous for someone to yell "Norte" or "West Side," or shout gang slogans because it would probably lead to fights and shootings. Id.
The California Court of Appeal rejected petitioner's claim based on state law. It found that the gang evidence was relevant to petitioner's motive. "[T]he theory of the prosecution was that Cardenas felt disrespected when Reynolds hit Samantha, a girl with whom he had recently had sex. Cardenas could not allow that challenge to his dominance go unanswered, particularly since at least one fellow gang member, Lenc, was present. Consequently, he attacked Reynolds and, when he began to lose the fight, which would have resulted in a loss of respect within his gang culture, Cardenas pulled out his knife and stabbed Reynolds." Id. at *9. Moreover, the appellate court concluded that the probative value of the gang related evidence was not outweighed by its prejudice. Id. In addition, the appellate court found that petitioner's prior statements were relevant to show that petitioner had the mentality of a gang member, as described by the gang expert. Id. at *12. Thus, concluded the state appellate court, petitioner's prior statements were relevant to demonstrate that the stabbing was likely motivated by gang culture, and that petitioner did not "just stand by and do nothing" when Samantha was "disrepected."
The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). The Supreme Court "has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding that trial court's admission of irrelevant pornographic materials was "fundamentally unfair" under Ninth Circuit precedent but not contrary to, or an unreasonable application of, clearly established Federal law under § 2254(d)). Because there is no "clearly established" federal law regarding this issue, this federal claim must be denied.
In addition, the due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).
Here, as the state appellate court found, the gang-related evidence was relevant to demonstrate petitioner's motive. The jury had already heard evidence that petitioner told the others that petitioner was a Northerner, and the initial introductions between petitioner and the others in the hotel room had gang overtones in that the other young men understood petitioner to be a Norteno. The prosecution's theory of the case was that petitioner stabbed Reynolds because Reynolds had just disrepected Samantha, with whom petitioner recently had sexual intercourse. According to gang culture, by extension, Reynolds had disrespected petitioner as well. Thus, gang-related evidence and testimony from the gang expert, as well as petitioner's prior statements about gang members' mentality were relevant to demonstrate gang culture, gang concepts of respect and disrespect, and how the slapping of Samantha would motivate petitioner to stab Reynolds.
Finally, even assuming that it was error to admit gang-related evidence, petitioner has not shown that error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). As the state appellate court noted, "the evidence presented at trial did not support either a verdict of manslaughter or a viable claim of self-defense. Manslaughter is not an available defense where the defendant engages in mutual combat and then takes undue advantage of his victim by using a deadly weapon. The evidence showed: (1) Cardenas armed himself with a knife before meeting two girls in Santa Cruz; (2) Cardenas initiated the fistfight with Reynolds; and (3) Cardenas, at some point during the fight, pulled out his knife and stabbed his unarmed opponent in the chest." Cardenas, 2012 WL 882887, at *12 (citation omitted). Moreover, petitioner proffered no evidence suggesting that the stabbing was in self-defense. Thus, even without the gang-related evidence, based on the evidence at trial, petitioner could not have been convicted of the lesser-included offenses, and still would have been found guilty of second degree murder.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2244(d).
2. Jury instructions
Petitioner claims that the trial court erred when it refused to modify CALCRIM Nos. 371 and 372 to instruct the jury that "consciousness of guilt may not be considered in determining the degree of defendant's guilt." Petitioner asserts that the instructions as given permitted the jury to impermissibly infer that petitioner was necessarily guilty because petitioner fled the scene and tried to conceal evidence.
At trial, the jury was instructed with CALCRIM Nos. 371 and 372:
If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.(Resp. Ex. B, RT 3286.)
If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.
The California Court of Appeal rejected petitioner's claim, recognizing that the instructions as given permitted, but did not mandate the jury to conclude that petitioner's concealment of evidence and petitioner's immediate flight after the stabbing showed consciousness of guilt. Cardenas, 2012 WL 882887, at *13. The state appellate court relied on state law and concluded, "[W]e have repeatedly rejected the argument that instructions on consciousness of guilt, including instructions regarding the defendant's flight following the crime, permit the jury to draw impermissible inferences about the defendant's mental state, or are otherwise inappropriate where mental state, not identity, is the principal disputed issue." Id. (quoting People v. Martinez, 47 Cal. 4th 399, 450 (2009)).
A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Id. at 72. Instructions that merely create a permissive inference, such as the ones at issue here, do not shift the burden of proof, but they nonetheless violate due process unless it can be said '"with substantial assurance'" that the inferred fact is '"more likely than not to flow from the proved fact on which it is made to depend.'" County Court of Ulster County v. Allen, 442 U.S. 140, 167 & n.28 (1979) (quoting Leary v. United States, 395 U.S. 6, 36 (1969)).
Here, the instructions as given left both the existence and significance of the circumstances to the jury. The wording of the instructions, combined with other instructions, directed the jury to ignore instructions found inapplicable to the facts. Further, the jury was instructed that, even if flight or concealment occurred, that evidence alone was not enough to prove guilt. The instructions did not shift or reduce the burden of proof.
Thus, the California Court of Appeal's rejection of the claim was not contrary to, or an unreasonable application of, clearly established federal law.
3. Cumulative prejudice
Petitioner's last claim is that he is entitled to habeas relief based on the cumulative effect of the alleged state court errors. In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. See, e.g., Alcala v. Woodford, 334 F.3d 862, 893-895 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered defendant's efforts to challenge every important element of proof offered by prosecution). However, where no single constitutional error exists, nothing can accumulate to the level of a constitutional violation. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002).
CONCLUSION
Petitioner's petition for writ of habeas corpus is DENIED.
The federal rules governing habeas cases brought by state prisoners require a district court that denies a habeas petition to grant or deny a certificate of appealability ("COA") in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a COA is DENIED.
The Clerk shall close the file.
IT IS SO ORDERED. DATED: 12/4/14
/s/_________
LUCY H. KOH
United States District Judge