Delgadillo v. Kirkland

Full title: HERCULANO DELGADILLO, Petitioner, v. RICHARD KIRKLAND, Warden, Respondent

Court: United States District Court, S.D. California

Date published: Jan 27, 2006

Civil No. 03cv1501 DMS (BLM) (S.D. Cal. Jan. 27, 2006)

Opinion

Civil No. 03cv1501 DMS (BLM).

January 27, 2006

REPORT AND RECOMMENDATION RE GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS

BARBARA MAJOR, Magistrate Judge

I. INTRODUCTION

Herculano Delgadillo, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (West Supp. 2005). He challenges his San Diego Superior Court conviction in case number SCD153150.

The Court has considered the Amended Petition, Respondent's Answer, Petitioner's Traverse and all the supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Petition be DENIED as to counts one, two, three, four and five and GRANTED as to counts six and seven.

II. FACTUAL BACKGROUND

This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). The facts as found by the state court are as follows:

A. Rosa's Statements to Police

On the evening of May 19, 2000, Rosa [Ramirez] called 911 and reported she had been beaten by Delgadillo. She also stated Delgadillo had tried to strangle her on two other occasions and had threatened to kill her.

Officer Vasquez met Rosa at the police station. Rosa was crying and told Vasquez she was scared and feared that Delgadillo would see her car outside the police station and kill her or her family. Vasquez assured Rosa that she was safe, and eventually Rosa calmed down and began describing Delgadillo's attacks.

Rosa first described the attack of May 19, 2000. Delgadillo had returned home after being out of town on work, and was awake in bed when she discovered a picture of another woman in Delgadillo's wallet. She threw the wallet at him and accused him of unfaithfulness. Delgadillo jumped up from the bed and hit her in the face several times. When she tried to shield her face with her arms, Delgadillo punched her in the torso. He punched her several times while she was moving around the room collecting her things to leave. He also pushed her, causing her to strike her hip on a fixed object. Finally, he grabbed her by the throat and began choking her. Vasquez noted that while Rosa was describing the attacks, she moved slowly, groaned, and stated that her entire body hurt.

Rosa also told Vasquez of earlier incidents of abuse. She stated Delgadillo had hit or threatened to kill her so many times over the preceding six months that she could not remember each event. She recalled one incident during which Delgadillo punched her in the eye during an argument, causing a cut, but when police arrived she told them she had injured herself while plucking her eyebrow. On another occasion, Delgadillo threatened to kill her with a gun and then punched her in the eye, giving her a black eye. At work the following day, she explained the black eye to her coworkers as being caused by an auto accident. On a third occasion, Delgadillo and Rosa were traveling in a car when Delgadillo became angry, stopped the car, obtained an ice pick from the trunk, threatened her with the ice pick, and then punched her in the eye. [footnote 2: In addition to the physical violence, Delgadillo told Rosa that if she ever cheated on him, he would have her killed by people he knew in the Mexican Mafia.]

After completing the interview, Rosa was afraid to leave the station, and Vasquez asked whether she had anywhere to go. She stated she had family in Los Angeles and Vasquez suggested that she might go there. Rosa made telephone calls from the station to her family, and Vasquez offered to follow her to the county line when she expressed concern that Delgadillo might be watching the police station. After she decided to go to her family in Los Angeles, Rosa gave Vasquez the telephone number where she could be reached; Vasquez asked her to call him when she reached Los Angeles. Rosa later called Vasquez to tell him she had arrived safely. [footnote 3: When Rosa arrived in Los Angeles, she went to White Memorial Hospital to have her injuries examined. Both of her eyes where black, and she told a nurse she received the injuries when her boyfriend assaulted her. She also told the nurse of a similar assault one to two weeks earlier.]

Detective Behrendt of the San Diego Police Department telephoned Rosa on May 24, 2000, at her brother's girlfriend's house. Rosa was staying there because Delgadillo was calling Rosa at her parents' house and Rosa was afraid to stay with her parents. Rosa told Behrendt she was experiencing pain from her injuries, had bruises on her legs and around both eyes, her legs were sore and it hurt to walk. Rosa's description to Behrendt of the May 19 assault conveyed the same facts as her report to Vasquez. Rosa also told Behrendt about an occasion on which Delgadillo had threatened to kill her with a gun, and another incident when Delgadillo threatened to kill her with an ice pick and then punched her in the eye. [footnote omitted.] She also told Behrendt of two previously undisclosed assaults. The first incident occurred on May 7, 2000. They argued and Rosa started packing her bags to leave. As she was standing with her head partly inside the closet, Delgadillo slammed the closet door on her head. The impact knocked the door off it tracks and caused her to "see stars." Delgadillo then grabbed her by the throat, choked her, and threw here on the bed. In the second incident, Rosa returned from visiting her mother and Delgadillo was angry. He grabbed Rosa by the throat, choked her, and threw her on the bed. Although her voice was hoarse and she had difficulty swallowing, she was able to go to work the following day; she hid the bruises from coworkers by wearing a turtleneck. She told Mr. Ponce, a coworker, about the incident.

On May 25, 2000, Rosa went to a Los Angeles police station to have additional pictures taken after the bruises had become more visible. Delgadillo was arrested on May 27, 2000. He had no visible injuries at the time of his arrest.

A few days later, Rosa visited Delgadillo in jail. She thereafter left a message for Behrendt stating that she no longer wished to prosecute Delgadillo. She married Delgadillo sometime before trial.

B. The Third Party Evidence

Rosa worked at the Laser Eye Center. Several coworkers saw Rosa with various injuries between November 1999 and May 2000, including bruising around her leg, throat and eyes. In March 2000 she told several coworkers she had received the black eye in a car accident, but confided to a coworker (Ms. Jarrette) that Delgadillo had struck her. Sometime between March and April 2000 she also confided to Jarrette and another coworker (Mr. Ponce) that Delgadillo had choked her; both Jarrette and Ponce saw marks on Rosa's throat, and Jarrette noticed she was hoarse.

C. Defense Evidence

Rosa and Delgadillo lived with Francisco (Delgadillo's brother) and Francisco's family. On the evening of May 19, 2000, Francisco overheard Rosa and Delgadillo arguing in their room; Rosa was yelling about a picture she found in Delgadillo's wallet. After a while, Francisco saw Rosa leaving with her bags; she told Delgadillo as she was leaving, "You'll be sorry you did what you did." Shortly after she left, Delgadillo emerged from their room; he was crying, shirtless, and had scratches and blood on his chest. Delgadillo said that he was sleeping when Rosa had found something in his wallet and struck him, and he awoke and instinctively hit her back.

Delgadillo's mother, brother and sister testified Rosa was a violently jealous individual and they had seen Delgadillo with physical injuries inflicted by Rosa. Delgadillo' brother Mauricio overheard Rosa threaten Delgadillo that, if she ever caught him with another woman, she would have him put in jail.

D. The Preliminary Hearing

At the preliminary hearing, Rosa testified she told Vasquez that she hit Delgadillo while he was asleep and that he struck back in self-defense. She responded by hitting him in the face and then pushing him. After Delgadillo pushed her back, she packed her belongings and left. She denied that Delgadillo punched her in the chest or

stomach or tried to choke her. She also denied telling police that Delgadillo threatened to kill her, threatened her with an ice pick, punched her in the eye while in the car, or had choked her. She also denied telling her coworkers that Delgadillo had hit or choked her, and denied telling the hospital worker about the events of May 19, 2000.

(Lodgement No. 5 at 2-7.)

III. PROCEDURAL BACKGROUND

On September 14, 2000, the San Diego County District Attorney's Office filed an eight count Information charging Herculano Delgadillo with two counts of corporal injury to a spouse and/or roommate (counts one and five), in violation of California Penal Code ("Penal Code") section 273.5(a), three counts of assault by means likely to produce great bodily injury (counts two, six and seven), in violation of Penal Code section 245(a)(1), assault with a deadly weapon by means of force likely to produce great bodily injury (count three), in violation of Penal Code section 245(a)(1), and two counts of making a terrorist threat (counts four and eight), in violation of Penal Code section 422. (Lodgment No. 1 at 0006-10.) As to count three, the Information alleged that Delgadillo personally used a deadly weapon within the meaning of Penal Code section 1192.7(c)(24), and as to each count the Information alleged that Delgadillo committed the offense while on parole, within the meaning of Penal Code section 1203.085(a). Finally, the Information alleged that Delgadillo had suffered a prior conviction for which he served a separate prison term, within the meaning of Penal Code sections 667.5(b) and 668, a prior conviction which was a serious felony, within the meaning of Penal Code sections 667(a)(1), 668 and 1192.7(c), and a prior "strike" conviction, within the meaning of Penal Code sections 667(b)-(i), 1170.12 and 668. ( Id.)

Jury trial began in Delgadillo's case on September 6, 2000. ( Id. at 0185.) A motion for a judgment of acquittal pursuant to Penal Code section 1118.1 was granted as to count eight. ( Id. at 0200.) The jury returned a verdict of guilty as to the remaining counts of the Information and found the personal use of a weapon enhancement to be true. ( Id. at 0213-19.) After a court trial, the state trial judge found the priors as alleged to be true. ( Id. at 0220-21.) Delgadillo was sentenced to fifteen years in prison. ( Id. at 0222.)

Delgadillo appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One, which affirmed his conviction in an unpublished opinion. (Lodgment Nos. 4, 5, 10.) Delgadillo then filed a petition for review in the California Supreme Court, which denied the petition without citation of authority. (Lodgment Nos. 6, 7.)

Delgadillo filed a petition in this Court on July 23, 2003. Meanwhile, Delgadillo filed a petition for writ of habeas corpus in the San Diego Superior Court, which was denied in a written opinion. (Lodgment Nos. 8, 9.) He then filed a petition for writ of habeas corpus in the state appellate court, which denied the petition in an unpublished opinion. (Lodgment No. 11.) Delgadillo then filed a petition for writ of habeas corpus in the California Supreme Court, which was denied without citation of authority. (Pet'rs App.)

On April 16, 2004, this Court determined that Delgadillo's petition was "mixed" in that it contained both exhausted and unexhausted claims. The Court advised Delgadillo of his options in pursuing his federal habeas corpus petition, and Delgadillo elected to ask this Court to stay his federal petition while he returned to state court to exhaust his unexhausted claims. The Court granted Delgadillo's request for a stay, and he returned to state court, filing a habeas corpus petition in the state appellate court, which denied the petition in a written decision, and the state supreme court, which denied the petition without citation of authority. (Lodgment No. 11; Pet'rs App.)

Following the California Supreme Court's denial of his habeas corpus petition, Delgadillo filed a First Amended Petition in this Court. Respondent filed an Answer, and Delgadillo filed a Traverse.

IV. DISCUSSION A. Scope of Review

Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C.A. § 2254(a) (West 1994) (emphasis added).

The current petition is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). As amended, 28 U.S.C. § 2254(d) reads:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.A. § 2254(d)(1)-(2) (West Supp. 2004) (emphasis added).

To obtain federal habeas relief, Delgadillo must satisfy either § 2254(d)(1) or § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets § 2254(d)(1) as follows:

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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 412-13; see Lockyer v. Andrade, 538 U.S. 63, 73-74 (2003).

Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer, 538 U.S. at 75-76); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law. Id.

B. Analysis

Delgadillo raises four claims in his federal petition: (1) the state trial judge violated his Sixth Amendment confrontation rights by admitting Ramirez's preliminary hearing testimony at trial; (2) the evidence was insufficient to support the verdicts because they were based on inadmissible hearsay; (3) his appellate attorney was ineffective; and (4) his trial attorney was ineffective. (Pet. at 6-9G.) In the Answer, Respondent argues that the state courts' decisions were neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer at 7-20.)

1. Sixth Amendment Violation (claim one)

The victim, Rosa Ramirez, did not testify at Delgadillo's trial. Instead, Ramirez's preliminary hearing testimony was read into the record. Delgadillo argues that the admission of these out of court statements violated his Sixth Amendment confrontation rights because the prosecution did not establish that Ramirez was "unavailable." (Pet. at 6-6E.)

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court outlined the parameters of the Sixth Amendment's confrontation clause:

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does [Ohio v.] Roberts[, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.

Crawford, 541 U.S. at 68.¹

1 Although the Supreme Court has not held that Crawford is retroactive, the Ninth Circuit has in Bockting v. Bayer, 399 F.3d 1010, 1021 (9th Cir. 2005), opinion amended on denial of rehearing, 408 F.3d 1127, pet. for cert. filed 74 U.S.L.W. 3308 (Nov. 7, 2005), and this Court is bound by that precedent.

Ramirez's preliminary hearing is clearly testimonial, and thus Crawford applies. See Crawford, 541 U.S. at 68. Moreover, Delgadillo cross-examined Ramirez during the preliminary hearing. (Lodgment No. 3, Vol. 2 at 237-332.)² Accordingly, as Delgadillo appears to concede, the cross-examination requirement is satisfied and the only issue remaining is whether Ramirez was "unavailable."

2 Ramirez also testified on direct examination at the preliminary hearing when the defense recalled her as a witness. (Lodgment No. 3, Vol. 5 at 837-60.)

Under clearly established Supreme Court law, "a witness is not `unavailable' for purposes of the . . . exception to the confrontation requirement unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial." Ohio v. Roberts, 448 U.S. 56, 74 (1980) (quoting Barber v. Page, 390 U.S. 719, 724-25 (1969)) (internal quotations omitted and emphasis in original). The Roberts Court defined "good faith effort" this way:

The law does not require the doing of a futile act. Thus if no possibility of procuring the witness exists (as, for example, the witness' intervening death), "good faith" demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. "The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness." California v. Green, 399 U.S. [149, 189 n. 2 (1970)]. [citations omitted.] The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness. As with other evidentiary proponents, the prosecution bears the burden of establishing this predicate.

Roberts, 448 U.S. at 74-75 (emphasis in original.)

The California Supreme Court rejected Delgadillo's Sixth Amendment claim without citation of authority. (Lodgment No. 7.) Thus this Court must "look through" to the state appellate court decision rejecting the claim as the basis for its analysis. Ylst, 501 U.S. at 801-06.

In analyzing whether the prosecution had established that Ramirez was unavailable for trial, the state appellate court noted that under California law, the prosecution is required to exercise "reasonable diligence" to secure the witness' attendance. Reasonable diligence depends upon the circumstances of each case, and a court is required to evaluate "the character of the proponent's affirmative efforts, whether the proponent reasonably believed prior to trial that the witness would appear willingly, whether the search was timely begun, whether the witness would have been produced if reasonable diligence had been exercised ( ibid.), and whether leads to locate the witness were competently explored. ( People v. Comer, supra, 24 Cal.4th at p. 904.)" (Lodgment No. 5 at 8.) Applying these standards to Delgadillo's case, the state appellate court said:

Our consideration of "`[t]he totality of efforts of the proponent to achieve presence of the witness'" ( People v. Sanders, supra, 11 Cal.4th at p. 523) convinces us the prosecution exercised due diligence to secure Rosa's presence at trial. First, the prosecution took affirmative efforts to secure Rosa's appearance by subpoenaing her and by obtaining a court order for her return. Second, the prosecution could "`reasonably believe prior to trial that the witness would appear willingly'" ( ibid.) because, notwithstanding her statement when served with a subpoena that she did not wish to comply she complied with the subpoena and appeared at trial on August 28, 2000. (See, e.g., People v. Lopez (1998) 64 Cal.App.4th 1122, 1128 [due diligence found where victim testified at preliminary hearing, was under subpoena, and no reason to suspect she would not appear at trial]; People v. Wise (1994) 25 Cal.App.4th 339, 344 [due diligence does not require prosecution to prevent witness from disappearing where no reason to believe witness would not appear].) Third, the search was timely begun once the prosecution realized Rosa would not appear. The first sign Rosa would ignore the subpoena and court order was when she did not appear at the September 1, 2000, trial date; however, because Rosa telephoned the court and apparently agreed to appear on September 6, 2000, there was no need to begin searching until she did not appear on September 6. The following day, investigators began looking for her, satisfying the timely commencement criteria.

Delgadillo does not assert the prosecution should have done more to secure Rosa's attendance before she failed to appear on September 6, 2000, but instead argues the due diligence finding was error because their efforts to locate her after she did not appear on September 6 were inadequate. However, we do not ignore the prosecution's pre-September 6, 2000 actions because it is the totality of the efforts that define reasonable diligence. Moreover, even a myopic focus on the prosecution's post-September 6, 2000, actions would not alter our conclusion. As soon as it was apparent Rosa would not comply with the court's order to appear, investigators immediately went to Rosa's only known address, searched the house, and asked whether anyone there might have information of her whereabouts. They located her car and later checked the DMV records to confirm it was the car she was driving. Although it appeared she had slept at the house the preceding evening, her brother had no idea where she had gone. The proponent need not do "everything possible" but need only use reasonable diligence. ( People v. Lopez, supra, 64 Cal.App.4th 1122, 1128), and the facts here convince us the only available leads were competently explored. [footnote omitted,] ( People v. Cromer, supra, 24 Cal.4th at p. 904.) A final consideration, whether the witness would have been produced if other and different forms of investigation had been employed ( People v. Sanders, supra, 11 Cal.4th at p. 523), also supports the reasonable diligence finding. Rosa married Delgadillo prior to trial, but the defense was unable to produce her for trial even though her testimony apparently would have favored the defense version that Delgadillo acted in self-defense when he struck her on May 19, 2000, and did not abuse her on other occasions. Because her husband could not have procured her attendance in his defense, we are convinced it is unlikely that additional efforts by the prosecution would have produced her attendance.

(Lodgment No. 5 at 10-12.)

The legal standard of "reasonable diligence" applied by the state appellate court is consistent with the "reasonableness" standard set forth in Roberts. See Williams, 529 U.S. at 412-13. Thus, the state court's denial was not contrary to clearly established Supreme Court law. This Court must still determine, however, whether the state court unreasonably applied the reasonableness requirement of Roberts. Id.

In its analysis of the trial court's conclusion that Ramirez was unavailable, the state appellate court recounted the facts surrounding Ramirez's failure to appear for trial and the prosecution's efforts to locate her. The prosecutor's office subpoened Ramirez on August 26, 2000, two days before the case was set for trial. (Lodgment No. 3, Vol. 1 at 106; Lodgment No. 1 at 0180.) She appeared on August 28, 2000, but the trial was trailed until September 1, and she was ordered back by the state trial judge. (Lodgment No. 1 at 0181.) Ramirez failed to appear on September 1, but according to a clerk's note, Ramirez called the courtroom at 10:30 that day and was told that a bench warrant in the amount of $5000 was being issued but held pending her appearance on September 6. ( Id. at 0184.) Thus, it was not until September 6, when Rosa failed to appear or contact the court, that the prosecution first knew for sure that Rosa would fail to comply with the subpoena and court's order. On September 6, 2000, a warrant of attachment was issued by the court, and the following day the prosecutor then directed her investigators to drive to Los Angeles and execute the warrant. (Lodgment No. 1 at 0185; Lodgment No. 3 at 112.)

The investigators went to Ramirez's last known address and interviewed the occupants of the residence but were unable to locate her. Although it was apparent that she had slept at the residence, her brother told investigators that he thought Ramirez had already gone to court. (Lodgment No. 3, Vol. 1 at 114.) The investigators searched the house, but did not locate Ramirez. They then searched the street for Ramirez's car, eventually locating one which matched the description provided by her brother and which was registered in Delgadillo's name. ( Id. at 117-18.)

The prosecution was aware early on that Ramirez was uncooperative. She indicated from the beginning that she did not want to come to court and tried to refuse service of the subpoena. (Lodgment No. 3, Vol. 1 at 106-07.) Accordingly, the prosecution employed escalating strategies to ensure her attendance, first by subpoening her, then having the trial court order her back, then issuing and holding a bench warrant, then having the trial court issue a writ of attachment and finally driving to her last known address in Los Angeles to attempt to execute the warrant. ( Id. at 106-18.) This was a reasonable response to the situation. Moreover, as the state appellate court noted, even the defense was unable to produce Ramirez at the trial, despite the fact that she had married Delgadillo during the course of the case and would have likely given favorable testimony. (Lodgment No. 5 at 12.)

For the foregoing reasons, the Court concludes that the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13. Delgadillo is not entitled to relief as to this claim.

2. Sufficiency of the Evidence (claim two)

Delgadillo's sufficiency of the evidence claim is based on a Sixth Amendment challenge to the out of court statements admitted at trial. (Pet. at 7-7F.) Specifically, he asserts that Ramirez's preliminary hearing testimony, her statements to police, her statements to a nurse and her statements to her coworkers were all inadmissible hearsay under the Sixth Amendment's Confrontation Clause and therefore there was insufficient evidence to support the verdicts. (Pet. at 7-7F.) Respondent contends that all the statements supporting the charges were properly admitted, and that, in any event, other evidence was sufficient to support the verdicts. (Answer at 13-16.) Respondent also argues that Crawford is not applicable to cases on federal collateral review. ( Id. at 15.)

Delgadillo raised a sufficiency of the evidence claim in his petition for review, filed in the California Supreme Court, which rejected this claim without citation of authority. (Lodgment No. 7.) Thus this Court must "look through" to the state appellate court decision rejecting the claim as the basis for its analysis. Ylst, 501 U.S. at 801-06. Citing California law, that court concluded that there was "substantial evidence" supporting Delgadillo's convictions, including Ramirez's statements to police and the corroborating testimony of police, her coworkers, medical personnel and photographs of her injuries. ( See Lodgment No. 5 at 12-14.)

The clearly established Supreme Court law regarding sufficiency of the evidence claims is set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). In Jackson, the Supreme Court held that the Fourteenth Amendment's Due Process Clause is violated "if it is found that upon the evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324. In Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005), the Ninth Circuit concluded that "[a]fter AEDPA, we apply the standards of Jackson with an additional layer of deference." Id. at 1274. Further, as noted above, Crawford states that "[w]here testimonial hearsay is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. With these standards in mind, the Court will examine the evidence supporting each of the counts of which Delgadillo was convicted.

a. Sufficiency of Evidence, Counts One and Two

Counts one and two of the Amended Information charged Delgadillo with inflicting corporal injury on a spouse or cohabitant (count one) by punching Ramirez in the eye and upper body causing bruising, and with assaulting Ramirez by means likely to produce great bodily injury (count two) by choking her. (Lodgment No. 1 at 0007.) Both of these crimes are alleged to have occurred on May 19, 2000. ( Id.)

In order to prove the crime of corporal injury on a spouse or cohabitant, the prosecution must establish that the defendant "willfully inflicted bodily injury upon another person with whom he was cohabiting," and that "[t]he bodily injury resulted in a traumatic condition." (California Jury Instructions, Criminal ("CALJIC") No. 9.35.) "Cohabiting" is defined as "unrelated persons living together in a substantial relationship-one shown at least by permanence and sexual or amorous intimacy." ( Id.) "Corporal injury" means "bodily injury." ( Id.) A "traumatic condition" is defined as "a condition of the body such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force." ( Id.)

In California, an assault by means of force likely to produce great bodily injury requires proof that "[a] person was assaulted," and that "the assault was committed with a deadly weapon or instrument or by means of force likely to produce great bodily injury." (CALJIC No. 9.02.) An assault is defined as a willful, intentional and unlawful act "which by its nature would probably and directly result in the application of physical force on another person." (CALJIC No. 9.00.) The defendant must also have "intended to use physical force upon another person or to do an act that was substantially certain to result in the application of physical force upon another person," and the defendant must have "had the present ability to apply physical force to the person of another." ( Id.) "[I]t is not necessary that any actual injury be inflicted," but if it is, that fact may be "considered in connection with other evidence in determining whether an assault was committed and, if so, the nature of the assault." ( Id.) A deadly weapon is defined by California law as "any object, instrument, or weapon which is used in such an manner as to be capable of producing, and likely to produce, death or great bodily injury." (CALJIC No. 9.02.) "Great bodily injury" is defined as "significant or substantial bodily injury or damage." ( Id.)

i. Ramirez's Preliminary Hearing Testimony

Ramirez' preliminary hearing testimony is "testimonial," and thus Crawford applies. See Crawford, 541 U.S. at 68. Where testimonial evidence is at issue, Crawford requires "[a showing] of unavailability and a prior opportunity for cross-examination." Id. As discussed above, Ramirez was properly found to be "unavailable." Moreover, despite the fact that she recanted the statements she made to police at the preliminary hearing and essentially became a defense witness, the defense did cross-examine Ramirez during the preliminary hearing. ( See Lodgment No. 3, Vol. 2 at 237-333; see also Crawford, 541 U.S. at 68; California v. Green, 399 U.S. 149, 165 (1970) (citing Mattox v. United States, 156 U.S. 237 (1895) and holding that "admitting the prior testimony of an unavailable witness does not violate the Confrontation Clause").) Accordingly, the Court concludes that Ramirez's preliminary hearing testimony was properly admitted.

At the preliminary hearing, Ramirez testified that she had been in a romantic relationship and had lived with Delgadillo for three years. (Lodgment No. 3, Vol. 2 at 239-40.) Although Ramirez retracted most of the statements Officer Vasquez and Detective Behrendt claimed she made on May 19, 2000, she did admit that on May 19, 2000, Delgadillo punched her in the face and that her eye was bruised as a result. (Lodgment No. 3, Vol. 2 at 244-45.)

ii. The Transcript of the 911 Call

Although Delgadillo does not challenge the admission of the transcript of Ramirez's 911 call in his petition, the Court concludes that, given the sufficiency of the evidence challenge Delgadillo is mounting, the Court must consider the admissibility of the 911 call.

Because Crawford had not been decided at the time of Delgadillo's direct appeal, the state appellate court did not address whether the 911 call was "testimonial." However, the state appellate court did find that the 911 call was admissible as an excited utterance. (Lodgment No. 5 at 15.) There is no Supreme Court law which directly addresses whether a 911 call is "testimonial" under Crawford; however, the Ninth Circuit has suggested that such statements do not fall under the purview of Crawford, and this Court agrees. See Leavitt v. Arave, 383 F.3d 809, 830 n. 22 (9th Cir. 2004), cert. denied 125 S.Ct. 2540 (2005) (stating that a victim's statements to police during a 911 call and to police who responded to the call were not "testimonial," noting that the victim, not police, initiated contact and that the victim was not being interrogated but rather was seeking help from police). The admissibility of hearsay which is not "testimonial" continues to be governed by the test set forth in Ohio v. Roberts, 448 U.S. 56, 65 (1980): the prosecution must demonstrate that the declarant is unavailable and that the statement bears adequate indicia of reliability. Crawford, 541 U.S. at 68; Roberts, 448 U.S. at 66, "Firmly rooted" hearsay exceptions bear such indicia. Roberts, 448 U.S. at 66.

The state appellate court correctly concluded that the 911 call was "independently admissible under the excited utterance exception to the hearsay rule." (Lodgment 5 at 15.) The Ninth Circuit has held that the excited utterance exception to the hearsay rule is "firmly rooted.'" Leavitt, 383 F.3d at 830. Since Ramirez was properly found to be unavailable, the Roberts test is satisfied. Accordingly, the Court agrees that the 911 tape was properly admitted, and may be used to support Delgadillo' conviction.

During the 911 call on May 19, 2000, Ramirez told the operator that her boyfriend, who she identified as Herculano Delgadillo, "just beat her up." (Lodgment No. 2 at 2-4.) Ramirez also told the operator that Delgadillo hit her in the face with his fist, and that he had tried to strangle her previously. ( Id.)

iii. Testimony of Officer Vasquez

At 9:03 p.m on May 19, 2000 assault, Ramirez called 911 from a public telephone outside a police station on Aero Drive to report Delgadillo's assault. (Lodgment No. 2 at 2.) During the call, an officer came out of the station and brought Ramirez inside. ( Id. at 7-8.) Officer Manual Vasquez was the officer assigned to interview Ramirez. The interview began about 9:45 p.m. (Lodgment No. 3, Vol. 2 at 333-34.) According to Vasquez, Ramirez was crying, scared and shaking during the interview. ( Id. at 336-38, 356.)

The admissibility of Vasquez's testimony regarding his interview with Ramirez was not directly addressed by the state appellate court, and thus the Court must conduct an independent review of the record to determine whether the state court's denial of this claim was contrary to or an unreasonable application of clearly established Supreme Court law. See Lodgment No. 5 at 12-16; Delgado, 223 F.3d at 983.

As noted above, the Supreme Court has not yet determined whether statements made by a victim seeking assistance from the police are "testimonial." The Ninth Circuit has suggested that such statements are not testimonial, and this Court agrees. Leavitt, 383 F.3d at 830 n. 22 (concluding that statements to police by a victim who initiates contact with police for the purpose of gaining their assistance are not testimonial.) If Ramirez's statements to Vasquez are not testimonial, they are admissible if Ramirez is unavailable and the statements bear adequate indicia of reliability. Crawford, 541 U.S. at 68; Roberts, 448 U.S. at 66. As previously discussed, Ramirez was properly found to be unavailable. Additionally, her statements to Vasquez bear "adequate indicia of reliability" because they fell within the firmly rooted "spontaneous declaration" exception to the hearsay rule — the statements "narrate[d], describe[d], or explaine[d] . . . an event perceived by [Ramirez]" and Ramirez "made [the statements] spontaneously while [she] was under the stress of excitement caused by such perception." (Cal. Evid. Code § 1240.); see also White v. Illinois, 502 U.S. 346, 356 n. 8 (1992) (stating that the spontaneous declaration exception to the hearsay rule is "firmly rooted.")³

3 Even if Ramirez's statements to Vasquez are "testimonial," the admission of her statements did not violate the Sixth Amendment because Ramirez was unavailable and the defense had a prior opportunity to cross-examine her regarding her statements to Vasquez when she testified at the preliminary hearing. See Crawford, 541 U.S. at 68.

Vasquez testified that Ramirez told him that on May 19, 2000, Delgadillo punched her in the face several times, punched her in various parts of her upper body and grabbed her by the throat, choking her until she could not breathe. (Lodgment No. 3, Vol. 2 at 341-42, 346-47, 349-51.) Vasquez also testified that Ramirez told him Delgadillo had pushed her into a solid object, injuring her hip. ( Id. at 349, 350-51.)

iv. Testimony of Detective Behrendt

As with Officer Vasquez's testimony, the state appellate court did not specifically address the admissibility of Detective Behrendt's testimony. (Lodgment No. 5 at 12-16.) Accordingly, this Court must conduct an independent review of the record to determine whether the state court's denial of this claim was contrary to or an unreasonable application of clearly established Supreme Court law. See Delgado, 223 F.3d at 983.

Detective Behrendt interviewed Ramirez by phone on May 24, 2000, while Ramirez was staying with her brother's girlfriend in Los Angeles. (Lodgment No. 3, Vol. 4 at 571-2.) Behrendt then testified at trial regarding Ramirez's statements to him. Unlike Ramirez's statements to Vasquez which were made either "spontaneously while [she] was under the stress of excitement caused by such perception," see Cal. Evid. Code § 1240, or were made for the purpose of gaining police assistance, see Leavitt, 383 F.3d at 830 n. 22, Ramirez's statements to Behrendt were more akin to an interrogation. Behrendt, not Ramirez, initiated the contact and the interview he conducted with Ramirez was for the purpose of investigating and preparing the prosecution's case against Delgadillo. See Crawford, 541 U.S. at 52-53 (stating that interrogation includes "recorded statement[s] knowingly given in response to structured police questioning.") Accordingly, the Court concludes that Ramirez's statements to Behrendt fall under Crawford's definition of "testimonial."

"Where testimonial hearsay is at issue, . . . the Sixth Amendment demands . . . unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at 68. Here, Ramirez was properly found to be unavailable. In addition, the defense cross-examined her regarding her statements to Behrendt at the preliminary hearing. ( See Lodgment No. 3 at 2 at 237-332; Vol. 5 at 837-60 (direct testimony).) Thus, the Court concludes that Behrendt's testimony regarding Ramirez's statements to him were properly admitted. According to Behrendt, Ramirez told him that on May 19, 2000, Delgadillo punched her in the jaw, hit her and kicked her all over her body, then threw her into a dresser. ( Id. at 575-77.)

v. The Evidence is Sufficient to Support Counts One and Two

Although the "substantial evidence" standard employed by the state court in its determination that the evidence was sufficient to support counts one and two was not the same as the Supreme Court announced in Jackson, the Court concludes that the state court's denial of this claim was not contrary to clearly established Supreme Court law. See Williams, 529 U.S. at 412-13. As the Supreme Court noted in Early, a state court need not even be aware of the applicable Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early, 537 U.S. at 8. Here, as in Early, the standard employed by the state court, that "substantial evidence" to support the conviction must be presented, is stricter than the Supreme Court applied in Jackson, that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." See Jackson, 443 U.S. at 324. Accordingly, the Court concludes that Delgadillo has failed to establish the state court's denial of this claim was contrary to clearly established Supreme Court law. See Williams, 529 U.S. at 412-13.

Nor was the denial of the claim an unreasonable application of Jackson. Ramirez's preliminary hearing testimony that she and Delgadillo were in a romantic relationship and had been living together for three years established that she and Delgadillo were "cohabiting." ( See Lodgment No. 3, Vol. 2 at 239-40; CALJIC No. 9.35.) Moreover, she testified that Delgadillo punched her in the eye, causing bruising. (Lodgment No. 3, Vol. 2 at 244-45.) This was sufficient to establish count one, that Delgadillo willfully inflicted corporal or bodily injury on a cohabitant (punching her in the eye) resulting a traumatic condition (bruising). ( See CALJIC No. 9.35.)

In addition, Vasquez testified Ramirez told him that on May 19, 2000, Delgadillo punched her numerous times and choked her until she could not breathe. (Lodgment No. 3, Vol. 2 at 341-42, 346-47, 349-51.) Behrendt testified that Ramirez stated that on May 19, 2000, Delgadillo punched her in the jaw, hit and kicked her all over her body, threw her into a dresser and choked her. (Lodgment No. 3, Vol. 4 at 575-77, 586.) As a result, she had bruises around each eye, bruises on her arms and legs, she had a sore throat for three days and her neck was bruised. ( Id. at 587.) This testimony was corroborated by testimony of police officers who observed Ramirez's injuries and who photographed them after the assault as well as by the testimony of Denise Souders, who examined Ramirez in a Los Angeles hospital the day after the assault and who testified that she observed Ramirez with two black eyes. (Lodgment No. 3, Vol. 3 at 464-65, 473-75; Vol. 4 at 622-30, 631-34.) This evidence was sufficient to establish count two, that Delgadillo intentionally committed acts which directly resulted in the application of physical force on Ramirez (punching her in the face and body, throwing her against a dresser and choking her), and that those acts were committed by means of force likely to produce great bodily injury (choking until she was unable to breathe and throwing her into a dresser). ( See CALJIC Nos. 9.00, 9.02.)

For all the foregoing reasons, the state court's denial of this claim as to counts one and two was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. at 412-13. Accordingly the Court recommends the petition be DENIED as to counts one and two.

b. Sufficiency of Evidence, Counts Three, Four, Five, Six and Seven

The amended information also alleged that between January 1, 2000 and May 19, 2000, Delgadillo assaulted Ramirez with a deadly weapon by threatening her with an ice pick and that he personally used a deadly weapon (count three), made a terrorist threat by threatening to kill her (count four), and inflicted corporal injury on a cohabitant by punching her in the eye and causing a black eye (count five). (Lodgment No. 1 at 0007-08.) In addition, the Amended Information alleged that on May 7, 2000, Delgadillo assaulted Ramirez by means likely to produce great bodily injury by choking her and slamming a closet door on her head (count six), and that on May 15, 2000, he again assaulted her by means of force likely to produce great bodily injury by choking her (count seven). ( Id.)

In addition to the crimes defined above, in order to prove the crime of making a terrorist threat, the prosecution must establish that:

1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device;

4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and

5. The threatening statement cause the other person reasonably to be in sustained fear [for [her] own safety].

It is immaterial whether the person who made the threat actually intended to carry it out.

(Lodgment No. 1 at 0073; CALJIC No. 9.94.)

Moreover, to establish that Delgadillo "personally used" a deadly weapon, i.e., an ice pick, the prosecution was required to establish that Delgadillo "intentionally displayed a weapon in a menacing manner" or that he "struck a human being with it." ( See CALJIC No. 17.16.) A deadly weapon is defined as "any weapon, instrument or object that is capable of being used to inflict great bodily injury or death." ( Id.)

i. Testimony of Officer Vasquez

As noted in section B(2)(a)(iii) of this Report and Recommendation, because Ramirez's statements to Vasquez were made for the purpose of seeking assistance, they are not testimonial and thus the admissibility test of Roberts, and not Crawford, applies. See Leavitt, 383 F.3d 809, 830 n. 22; Crawford, 541 U.S. at 68. As this Court has already concluded, Ramirez's statements to Vasquez were admissible because Ramirez was unavailable and the statements fall within the firmly rooted "spontaneous declaration" exception of the hearsay rule. ( See White, 502 U.S. at 356 n. 8; Cal. Evid. Code § 1240.) Accordingly, they may properly be used to support Delgadillo's conviction.

Vasquez testified that Ramirez told him she could not remember how many times Delgadillo had threatened to kill her in the preceding six months because it had happened so often. (Lodgment No. 3, Vol. 2 at 365.) She also told him that within the preceding six months, Delgadillo had punched her in the eye, causing a cut. ( Id. at 366-67.) In addition, Ramirez recounted an incident, which had occurred within the preceding six months, during which she and Delgadillo had gotten into an argument while they were driving. Delgadillo stopped the car, opened the trunk, took out an ice pick, pointed it at her and threatened to kill her with it. (Lodgment No. 3, Vol. 3 at 379-82.) Instead, he punched her in the eye, causing a black eye. ( Id.) When she went to work the next day, she told a coworker she had gotten into a car accident. ( Id. at 382.) Vasquez testified that Ramirez was constantly afraid that Delgadillo would make good on his threats to kill her. ( Id. at 382-83.)

ii. Testimony of Detective Behrendt

As this Court determined in section B(2)(a)(iv), Ramirez's statements to Detective Behrendt are "testimonial" and Crawford's requirement of unavailability and a prior opportunity for cross-examination have been satisfied. Crawford, 541 U.S. at 68. Behrendt testified that Ramirez told him Delgadillo had threatened to kill her and her family in the past. ( Id. at 578-79.) Ramirez also told Behrendt about the ice pick incident, telling Behrendt, as she did Vasquez, that she and Delgadillo were traveling in a car and began to argue. Delgadillo told her that he should just kill her, stopped the car, retrieved an ice pick from the trunk and threatened to kill her with it. ( Id. at 579-80.) He then punched her in the eye which resulted in a black eye. ( Id.; Id. at 586) She went to work the next day and told her coworkers that she had been in a car accident. ( Id. at 581.) Ramirez told Behrendt that Delgadillo had threatened to kill her on other occasions since January 1, 2000. ( Id.)

Behrendt also testified regarding another incident which occurred on May 7, 2000 during an argument. ( Id. at 584.) Ramirez was attempting to leave the apartment and began gathering her things. While she leaned her head into the closet, Delgadillo slammed the closet door on her head, knocking the door off its tracks. ( Id.) He then grabbed her by the throat, threw her onto the bed and began choking her. ( Id. at 584-85.) As a result of this attack, she "saw stars" and her throat was sore. ( Id. at 584-85.)

iii. Testimony of Denise Souders

Denise Souders, a nurse at White Memorial Hospital in East Los Angeles, testified regarding injuries she saw on Ramirez's body and statements Ramirez made to her regarding how she had received her injuries. Specifically, Souders testified that she saw Ramirez with two black eyes, and that Ramirez told her she had been assaulted by her boyfriend. ( Id. at 465-66.)

Souders' personal observations of Ramirez's injuries to which she testified are not hearsay, and thus the Sixth Amendment is not implicated. The Court has been unable to locate any Ninth Circuit or United States Supreme Court case which has determined whether statements made to medical personnel are "testimonial" as defined by Crawford. However, the Court concludes that such statements are not of the same character as the statements Crawford did identify as testimonial, such as "prior testimony at a preliminary hearing, before a grand jury or at a former trial; and . . . police interrogations," Crawford, 541 U.S. at 68, all of which appear to be statements made for the purpose of investigating and pursuing a criminal prosecution.

If, as this Court has found, Ramirez's statements to Souders are not testimonial, they are admissible if the Roberts test is satisfied. Crawford, 541 U.S. at 68; Roberts, 448 U.S. at 66. Ramirez was properly found to be unavailable. However, it is unclear whether Ramirez's statements to Souders fell within the firmly rooted exception to the hearsay rule for statements made for the purpose of medical diagnosis or treatment. See White, 502 U.S. at 356 n. 8 (1992) (stating that the hearsay exception for statements made for the purpose of medical diagnosis or treatment is "firmly rooted.") California Evidence Code section 1250 provides:

(a) Subject to Section 1252,⁴ evidence of a statement of the declarant's then existing state of mind, emotion or physical sensation . . . is not made inadmissible by the hearsay rule when:

(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at the time or any other time when it is itself an issue in the action; or

(2) The evidence is offered to prove or explain acts or conduct of the declarant.

(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.

4 Evidence Code section 1252 states: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." (Cal. Evid. Code § 1252 (West 2005).)

(Cal. Evid. Code § 1250 (West 2005).)

Ramirez's statement to Souders, that she was assaulted by her boyfriend, was not a statement of her "existing state of mind, emotion or physical sensation." Rather, it was an accusation against Delgadillo. ( See id.) Moreover, her statement was not offered to prove Ramirez's "state of mind, emotion or physical sensation," or to "prove or explain [her] acts or conduct." It was offered to prove that Delgadillo had assaulted her. ( Id.) Nevertheless, Ramirez's statement to Souders does appear to bear "particularized guarantees of trustworthiness." See Roberts, 448 U.S. at 66. Ramirez was talking to a health care worker not a law enforcement officer, she did not have an apparent motive for fabrication, the event she was recounting was recent, and her statement was consistent with statements she had made to Vasquez and Behrendt. In any event, even if Souders' testimony was improperly admitted, the error was harmless. See Brecht v. Abrahmson, 507 U.S. 619, 637 (1993); Delaware v. VanArsdall, 475 U.S. 673, 684 (1986). As discussed below, the testimony of Vasquez and Behrendt alone are sufficient to support Delgadillo's conviction on counts three, four, five and six.

iv. Testimony of Kiley Jarrette, Simon Ponce and Maha Daghals

Several of Ramirez's coworkers testified as to injuries they saw on Ramirez's body and statements she made to them regarding where she got the injuries. The personal observations of Ramirez's injuries testified to by her coworkers are not hearsay, and thus the Sixth Amendment is not implicated. However, the coworkers' personal observations of Ramirez's alone injuries do not prove any of the operable facts relating to the charges against Delgadillo. It is only Ramirez's statements to her coworkers about how she received the injuries which do and which must be analyzed in light of the Sixth Amendment.

The Court has been unable to locate any Ninth Circuit or United States Supreme Court case which has determined whether statements made to individuals who later become witnesses at trial are "testimonial" as defined by Crawford. However, Crawford did note that "[a]n offhand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted." Crawford, 541 U.S. at 51. Indeed, as with statements to medical personnel, statements to individuals who later become witnesses at trial are not of the same character as the statements Crawford did identify as testimonial, such as "prior testimony at a preliminary hearing, before a grant jury or at a former trial; and . . . police interrogations," Crawford, 541 U.S. at 68, all of which appear to be statements made for the purpose of investigating and pursuing a criminal prosecution. Accordingly, the Court concludes that Ramirez's statements to her co-workers were not "testimonial" as that term is understood in Crawford.

If Ramirez's statements to her coworkers are not testimonial, they are admissible if Ramirez is unavailable and the statements bear adequate indicia of reliability, which can be established by showing the statements fall under a "firmly rooted" hearsay exception. Roberts, 448 U.S. at 66; Crawford, 541 U.S. at 68. Ramirez was properly found to be unavailable. However, there is no "firmly rooted" hearsay exception which applies to the statements Ramirez made to her co-workers. Moreover, there are no "particularized guarantees of trustworthiness" associated with the statements she made to her coworkers. See Roberts, 448 U.S. at 66. Without either a "firmly rooted" hearsay exception or a finding of "adequate indicia of reliability," Ramirez's statements to her coworkers were not admissible under the Sixth Amendment. See id.; Crawford, 541 U.S. at 68.

v. The Evidence is Sufficient to Support Counts Three, Four, Five, and Six

As noted above, the "substantial evidence" standard employed by the state court in its determination that the evidence was sufficient to support counts three through seven is stricter than the clearly established Supreme Court law as expressed in Jackson. See Jackson, 443 U.S. at 324. Accordingly, the Court concludes that Delgadillo has failed to establish the state court's denial of this claim was contrary to clearly established Supreme Court law. See Williams, 529 U.S. at 412-13. Moreover, as discussed below, the denial of this claim as to counts three through six was not an unreasonable application of Jackson. If the jury believed the testimony of the prosecution's witnesses and discounted the defense witnesses, which they were entitled to do, there was more than sufficient evidence to support counts three through six.

Count three alleged that between January 1, 2000 and May 19, 2000, Delgadillo assaulted Ramirez with a deadly weapon, an ice pick. (Lodgment No. 1 at 0007.) Vasquez and Behrendt both testified that Ramirez told them that sometime between January 1, 2000 and May 19, 2000, Delgadillo pointed an ice pick at her and threatened to kill her. (Lodgment No. 3, Vol. 3 at 379-82, Vol. 579-80.) This evidence was sufficient to establish that Delgadillo committed a willful, intentional and unlawful act "which by its nature would probably and directly result in the application of physical force on another person" (threatening to kill Ramirez with an ice pick), and that he had the "present ability to apply such physical force" (pointing the ice pick at Ramirez). ( See CALJIC No. 9.00; Lodgment No 1 at 0063.) In addition, the officers' testimony established that Delgadillo's assault was committed with a deadly or dangerous weapon or instrument (an ice pick), and that Delgadillo personally used the ice pick. ( See CALJIC Nos. 9.00, 9.01, 9.02, 17.16; Lodgment No. 1 at 0062-63, 0065, 0088.)

Count four alleged that Delgadillo made a terrorist threat against Ramirez by threatening to kill her sometime between January 1, 2000 and May 19, 2000. (Lodgment No. 1 at 0008.) In addition to the ice pick incident during which Delgadillo threatened to kill Ramirez, Vasquez and Behrendt both testified that Ramirez told them that Delgadillo had threatened to kill her on more than one occasion between January 1 and May 19 of 2000. (Lodgment No. 3, Vol. 2 at 365, Vol. 578-79, 581.) This evidence is sufficient to establish that Delgadillo willfully, and with specific intent that the statement be taken as a threat, verbally threatened to kill Ramirez sometime between January 1 and May 19 of 2000, that Ramirez was in fear for her safety, and that the threat was "unequivocal, unconditional, immediate and specific." ( See CALJIC No. 9.94; Lodgment No. 1 at 0073.)

Count five alleged that between January 1 and May 19 of 2000, Delgadillo inflicted corporal injury on a cohabitant by punching Ramirez in the eye and causing a black eye. (Lodgment No. 1 at 0008.) Vasquez and Behrendt both testified that Ramirez told them that after threatening to kill her with an ice pick sometime between January 1 and May 19 of 2000, Ramirez punched her in the eye, causing a black eye. (Lodgment No. 3, Vol. 3 at 379-82, Vol. 4 at 579-80, 586.) This testimony is sufficient to establish that sometime between January 1 and May 19 of 2000, Delgadillo willfully inflicted corporal or bodily injury (punching Ramirez in the eye) on a cohabitant (Ramirez) resulting in a traumatic condition (a black eye). ( See CALJIC No. 9.25; Lodgment No. 1 at 0061.)

Count six charged Delgadillo with assaulting Ramirez by means of force likely to produce great bodily injury by choking her and slamming a closet door on her head on May 7, 2000. (Lodgment No. 1 at 0008.) Behrendt testified that Ramirez told him that on May 7, 2000, Delgadillo slammed the closet door on her head as she gathered her things to leave following an argument with him. (Lodgment No. 3, Vol. 4 at 584.) Ramirez also told Behrendt that Delgadillo then threw her on the bed and began choking her. ( Id. at 584-85.) This testimony is sufficient to establish that Delgadillo willfully and intentionally used physical force on Ramirez by means of force likely to result in substantial bodily injury or damage (slamming a closet door on her head, choking her). ( See CALJIC Nos. 9.00, 9.01, 9.02; Lodgment No. 1 at 0062-63, 0065.)

vi. The Evidence is Insufficient to Support Count Seven

Count seven alleged that Delgadillo assaulted Ramirez by means of force likely to produce great bodily injury by choking her on or about May 15, 2000. (Lodgment No. 1 at 0008-09.) The only evidence the Court has been able to locate which supports this count is Eddie Ponce's testimony that Ramirez told him she had been choked by Delgadillo about a month or two before she was let go in late May of 2000. (Lodgment No. 3, Vol. 3 at 515-16.) Ramirez then showed Ponce her neck; he saw some redness in the shape of a hand. ( Id. at 516-17.)⁵ However, this Court has concluded that Ponce's testimony was admitted in violation of the Sixth Amendment, and absent Ponce's testimony no rational jury could have found that Delgadillo willfully and intentionally inflicted physical violence on Ramirez by means of force likely to produce great bodily injury (choking her) on May 15, 2000 as charged in count seven. See Jackson, 443 U.S. at 324; see also CALJIC Nos. 9.00, 9.02.

5 It appears that the prosecutor attempted to elicit testimony from Detective Behrendt regarding this incident as well. However, in questioning Behrendt, the prosecutor stated that the incident occurred on May 19, and Behrendt did not correct her. ( See Lodgment No. 3, Vol. 4 at 586-87; see also Lodgment No. 1 at 0163 (probation report).) Thus, there was simply no evidence put before the jury which could form the basis for Delgadillo's conviction on count seven.

For all the foregoing reasons, the state court's denial of Delgadillo's sufficiency of the evidence claim as to counts three through six was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. at 412-13. However, because the state court admitted testimony by Ramirez's coworkers in violation of the Sixth Amendment, the state court's rejection of Delgadillo's challenge to count seven was contrary to and an unreasonable application of clearly established Supreme Court law. See id. Accordingly, the Court recommends the petition be DENIED as to counts three, four, five and six; further, the Court recommends the petition be GRANTED as to count seven.

3. Ineffective Assistance of Trial Counsel (claim four)

Delgadillo contends that trial counsel was ineffective because he failed to object to the admission of Ramirez's prior inconsistent statements as substantive evidence, informed prospective jurors that Delgadillo was affiliated with the "Mexican Mafia," failed to properly object to CALJIC No. 2.52 (use of flight following a crime as evidence of guilt), failed to call Ramirez's mother as a defense witness, failed to object to the prosecutor's assertion that Delgadillo was a member of the "Mexican Mafia," failed to make a proper objection to CALJIC Nos. 2.50.02 and 2.50.1 (use of evidence of prior acts of domestic violence), and failed to object to the trial court taking judicial notice of a clerk's hand written note. (Pet. at 9-9F.) In a habeas corpus petition filed in the California Supreme Court, Delgadillo raised nine claims, including these seven. The court denied the petition without citation of authority. (Pet'rs App. at 5.) Thus, the last reasoned state court opinion which addressed the merits of these claims is the California appellate court decision, filed on January 12, 2004. That court concluded:

Petitioner does not demonstrate that his trial counsel acted in a manner inconsistent with a reasonably competent attorney acting as a diligent advocate or that any of counsel's acts or omissions resulted in prejudice to petitioner. (See People v. Pope (1979) 23 Cal.3d 412, 425.) Moreover, as to the first contention [failure to object to the admissibility of Ramirez's prior inconsistent statements], this court has already determined that Rosa's prior inconsistent statements were properly admitted and an objection would have been fruitless. As to contention seven [failure to make a proper objection to CALJIC Nos. 2.50.02 and 2.50.2], this court has already determined that sufficient evidence supported convictions on the charges. With regard to contentions three [failure to properly object to CALJIC No. 2.52] and four [failure to call defense witnesses, including Ramirez's mother], petitioner does not provide records or declarations from prospective witnesses. Petitioner does not make the significance of contentions five [disclosure of Ramirez's whereabouts to the court] and eight [failure to object to the court taking judicial notice of a clerk's note] clear to this court. Petitioner also does not provide sufficient record to determine whether the prosecutor's comment on Mexican Mafia ties was objectionable or specify what "curative" instruction counsel could have requested. Finally, petitioner does not provide sufficient record to review counsel's performance with respect to essentially all contentions. Petitioner has failed to present a prima facie case upon which relief can be granted. (See In re Bower (1985) 38 Cal.3d 865, 872.)

(Pet'rs App. 6-8.)

The clearly established Supreme Court law governing ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668 (1984) which requires a petitioner to show that his attorney's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 686-87. The Court must review counsel's performance deferentially. Id. at 689. A petitioner must also establish that he was prejudiced by counsel's errors. Id. at 691-94. Prejudice is defined as "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Although the state court did not specifically cite Strickland as the basis for its analysis, the standard employed by the court, whether Delgadillo's trial attorney acted as a reasonably competent attorney and whether any of counsel's acts or omissions prejudiced Delgadillo, is consistent with Strickland. Accordingly, the state court's decision is not "contrary to" clearly established Supreme Court law. See Early, 537 U.S. at 8. This Court must still determine, however, whether the state court's decision was an unreasonable application of Strickland. See Williams, 529 U.S. at 412-13.

a. Failure to object to the admission of Ramirez's prior inconsistent statements as substantive evidence

Delgadillo alleges his trial attorney was ineffective when he failed to object to the admission of Ramirez's prior inconsistent statements, i.e., her statements to law enforcement, coworkers and nurse, as substantive evidence. (Pet. at 9-9A.) The state appellate court found that Ramirez's prior testimony at the preliminary hearing was properly admitted under California Evidence Code section 1291. ( See Pet'rs Appx. at 6-7; Cal. Evid. Code § 1291.) However, the state court did not address the more vexing question of whether counsel should have objected to the admission of Ramirez's out of court statements to Vasquez, Behrendt. Souders and her coworkers as prior inconsistent statements. Because the state appellate court did not furnish a basis for its denial of this claim, the Court must conduct an independent review of the record to determine whether the denial was contrary to, or an unreasonable application of, clearly established Supreme Court law. Delgado, 223 F.3d at 982.

When it became apparent that Ramirez would not appear to testify at the trial, the prosecutor said that, if the judge permitted, she was prepared to proceed with the transcript of Ramirez's preliminary hearing testimony and "impeaching witnesses." (Lodgment No. 3, Vol. 1 at 96-97.) The trial judge opined that if Ramirez's preliminary hearing testimony was admitted, it was subject to impeachment, and that "all the impeachment comes [in] along with it." ( Id. at 98.) Defense counsel asked, "[w]hat do you mean all the impeachment comes along with it?," to which the judge replied, "[p]rior inconsistent statement, detective, co-workers, the 911 tape." ( Id.) Defense counsel agreed that was an accurate statement of the law. ( Id.) The trial judge later ruled that the prosecution had exercised the required diligence in their attempt to secure Ramirez's presence, and concluded that Ramirez's preliminary hearing testimony, during which she recanted all of her accusations against Delgadillo, was admissible. ( Id. at 132.) Although there is not explicit ruling by the trial judge as to the basis for its admission, testimony by Vasquez, Behrendt, Souders and Ramirez's coworkers was then admitted apparently as prior inconsistent statements under California Evidence Code section 1235. ( See Lodgment No. 1 at 0052 (CALJIC No. 2.13, "Prior Consistent or Inconsistent Statements as Evidence.")

California Evidence Code section 1235 defines a hearsay exception for prior inconsistent statements "if the statement is inconsistent with [the witness'] testimony at the hearing and is offered in compliance with Section 770." (Cal. Evid. Code § 1235 (West 2005).) Section 770 requires that the witness be given a chance to explain or deny the prior statement. (Cal. Evid. Code § 770 (West 2005).) Indeed, in California v. Green, 399 U.S. 149 (1970), the Supreme Court upheld the constitutionality of section 1235 against a Sixth Amendment challenge, holding that "the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." Green, 399 U.S. at 158-59. When properly admitted pursuant to Evidence Code section 1235, prior inconsistent statements may be used "not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on that former occasion." ( See CALJIC No. 2.13.)

Consistent with Green, California courts have precluded admission of prior inconsistent statements where the declarant does not testify at the trial. In People v. Williams, 16 Cal. 3d 663, 670 (1976), police arrested an individual, Morris, on suspicion of robbery. Morris told police that defendant Williams had been involved in the robbery. Id. at 665. Morris testified at Williams' preliminary hearing, but did not implicate Williams. Detective Smith, who had heard Morris' original statement implicating Williams, then testified regarding Morris' inconsistent statement. Id. at 665-66. At Williams' trial, Morris was declared an unavailable witness. His preliminary hearing testimony was admitted under California Evidence Code section 1291(a)(2) as prior testimony. Smith's testimony regarding Morris' prior inconsistent statement implicating Williams was admitted under Evidence Code section 1235. Id.

The court began its analysis by noting that "[t]he [California Law Revision Commission's] comments to sections 1235 and 1202 indicate that section 1235 applies at trial only to prior inconsistent statements of a trial witness." Id. at 668. The court noted:

The commission's comment to section 1235 states in pertinent part: "Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. . . . The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency."

Id. (italics in original)

The court also noted that, as used in Evidence Code section 1235, "the hearing" means "the hearing at which a question under this code arises, and not some earlier or later hearing." (Cal. Evid. Code § 145 (West 2005).) Thus, "Morris not having testified at trial — the hearing at which the admissibility of his prior statements arose — those statements were not inconsistent with his testimony `at the hearing.'" Id. at 669; see also People v. Corella, 122 Cal. App. 4th 461, 473 (2004) (holding that a witness' statement at a preliminary hearing was inadmissible under Evidence Code section 1235 because the witness did not testify at the trial.)

Although defense counsel made hearsay objections to various questions and testimony by Officer Vasquez, Kiley Jarrette, Denise Souders, Claire Nooitgedagt, Simon Ponce and Detective Behrendt, ( see Lodgment No. 3, Vol. 2 at 336, 337, 338, 340, Vol. 3 at 436, 476, 484, 486, 492, 520, Vol. 4 at 600), he did not argue, as he should have, that the testimony of these witnesses was inadmissible as prior inconsistent statements under California law. These statements were plainly inadmissible for their truth as prior inconsistent statements under the California Evidence Code because Ramirez was not present at the trial and was not given an opportunity to explain or deny the inconsistent statements. ( See Cal. Evid. Code §§ 145, 770, 1235; Green, 399 U.S. at 164 (upholding the admission under California Evidence Code section 1235 of prior statements of a witness where the witness is given a chance to explain or deny the statement against a Confrontation Clause challenge.) Indeed, they were not admissible even to impeach Ramirez's preliminary hearing testimony because Evidence Code section 780(h), like section 1235, requires the statement to be inconsistent with testimony "at the hearing" (the trial). See Cal. Evid. Code § 780(h). The jury was told that it could consider the testimony regarding Ramirez's out of court statements as evidence of the truth of the charges. ( See Lodgment No. 1 at 0052 (CALJIC No. 2.13).) Accordingly, the Court concludes that counsel's failure to object to the admission of this testimony as prior inconsistent statements fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 686-89.

Delgadillo must also establish he was prejudiced as a result of counsel's errors. See Strickland, 466 U.S. at 694. As to Vasquez's testimony regarding Ramirez's statements, Delgadillo has not established he was prejudiced because Ramirez's out of court statements to Vasquez were independently admissible for their truth as spontaneous statements. ( See Report and Recommendation at Section B(2)(a)(iii); Strickland, 466 U.S. at 694; Cal. Evid. Code § 1240.)

The analysis with respect to the testimony of Behrendt, Souders and Ramirez's coworkers, however, is more complex. See Strickland, 466 U.S. at 697. Had counsel properly objected to its admission, the trial court would have been required to exclude the testimony of Behrendt, Souders and Ramirez's coworkers, leaving only Ramirez's preliminary hearing testimony and Vasquez's testimony to support the charges. Ramirez's preliminary hearing testimony established count one (corporal injury to a cohabitant on May 19, 2000) because she testified that on May 19, 2000, Delgadillo punched her in the eye causing bruising. ( See Lodgment No. 3, Vol. 2 at 243-44; Lodgment No. 1 at 0061 (CALJIC No. 9.35).) Vasquez's testimony also established count one (corporal injury to a cohabitant on May 19, 2000), count two (assault by means likely to produce great bodily injury on May 19, 2000), count three (assault with a deadly weapon and personal use of a deadly weapon between January 1 and May 19, 2000), count four (making a terrorist threat) and count five (corporal injury to a spouse between January 1 and May 19, 2000). Vasquez testified Ramirez told him that on May 19, 2000, Delgadillo punched her in the eye causing bruising and choked her (counts one and two). (Lodgment No. 3, Vol. 2 at 341-42, 345, 349, 357; Lodgment No. 1 at 0062-63, 0065 (CALJIC Nos. 9.00, 9.01, 9.02).) He also testified that Ramirez told him that sometime between January 1 and May 19, 2000, Delgadillo had threatened to kill her with an ice pick then punched her in the eye (counts three, four and five). (Lodgment No. 3, Vol. 2 at 365-68; Lodgment No. 1 at 0062-63, 0065, 0073 (CALJIC Nos. 9.00, 9.01, 9.02, 9.94).) Accordingly, Delgadillo has not established prejudice with respect to counts one, two, three, four and five. The Court therefore concludes that the state court's denial as to claims one through five was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, and the Court recommends that the petition be DENIED as to those claims.

The only evidence supporting counts six and seven, however, was the testimony of Detective Behrendt, as corroborated by Ramirez's coworkers and Souders, which, as discussed above, would have been excluded had counsel made a proper objection to it. Accordingly, Delgadillo has established he was prejudiced by counsel's errors as to counts six and seven. See Strickland, 466 U.S. at 694. The Court therefore concludes that the state court's denial of Delgadillo's claims as to counts six and seven was an unreasonable application of clearly established Supreme Court law, and the Court recommends that the petition be GRANTED as to those claims. See Williams, 529 U.S. at 412-13.

b. Informing prospective jurors about Delgadillo's affiliation with the "Mexican Mafia," and his prior manslaughter conviction

Delgadillo contends that trial counsel rendered ineffective assistance when he informed prospective jurors that he was affiliated with the "Mexican Mafia" and that he had a prior manslaughter conviction. (Pet. at 9A-B.) Because that court did not state the basis for its rejection of the claim, this Court must conduct an independent review of the record to determine whether the state courts' denial of this claim was contrary to, or an unreasonable application of clearly established Supreme Court law. ( See Pet'rs App. at 7; Delgado, 223 F.3d at 982.)

During in limine motions, defense counsel argued against the admission of evidence showing Delgadillo was a member of the Mexican Mafia and Delgadillo's prior manslaughter conviction. (Lodgment No. 3, Vol. 1 at 66-68.) The trial judge ruled that the Mexican Mafia evidence was admissible, but offered to "sanitize" the information by prohibiting the prosecution from using the term "Mexican Mafia," an instead requiring the use of the term "prison gang." ( Id. at 69-72.) Defense counsel replied that he would like to "table that" until after the judge made further in limine rulings and for tactical reasons. ( Id. at 72.) The trial judge also permitted the prosecution to introduce the fact that Delgadillo had suffered a prior conviction and was on parole at the time of the May 19, 2000 assault to prove his motive to threaten Ramirez, and ruled that the facts of the prior conviction could be admitted to impeach Delgadillo should he testify or to counter any assertion by the defense that Delgadillo had a nonviolent character. ( Id. at 78-95.) There is no evidence in the record that defense counsel ever accepted the court's offer to sanitize the reference to Delgadillo's membership in the Mexican Mafia.

The attorney general has not provided the Court with the transcript of the jury voir dire. Assuming that Delgadillo's assertions are true, however, and giving deference to counsel's performance as required by Strickland, Delgadillo's attorney's performance was not objectively unreasonable. See Strickland, 466 U.S. at 689. Given that the state trial judge had already ruled that evidence showing Delgadillo's connection to the Mexican Mafia and his prior conviction were admissible, counsel's reference to the those matters during voir dire was a reasonable, strategic decision to probe potential juror bias against such information. Moreover, since the juror who were empaneled heard the evidence relating to Delgadillo's alleged affiliation with the Mexican Mafia anyway, Delgadillo has not established that he was prejudiced by counsel's actions. See id. at 694. Accordingly the state court's denial of this claim was neither contrary to, nor an unreasonable application of clearly established Supreme Court law, and Delgadillo is not entitled to relief as to this claim. Williams, 529 U.S. at 412-13.

c. Failure to properly object to CALJIC No. 2.52

Delgadillo argues that his trial attorney was ineffective for failing to properly object to CALJIC No. 2.52, which permits the jury to consider flight after a crime as evidence of guilt. (Pet. at 9B-C.) The instruction was given because police were unable to locate Delgadillo for about a week following the May 19, 2000 assault, despite repeated visits to his home. Although trial counsel did object to CALJIC No. 2.52, Delgadillo alleges that his trial attorney should have investigated the circumstances of Delgadillo's disappearance and procured witnesses who could testify as to his work schedule and his whereabouts during the week following the May 19, 2000 assault in order to provide a stronger argument against the flight instruction. ( Id.) Absent this investigation, Delgadillo contends, there was uncontroverted and inaccurate evidence of Delgadillo's flight following the May 19 assault, which precluded a successful challenge to CALJIC No. 2.52. ( Id.) The state appellate court concluded that Delgadillo had not presented a prima facie case for relief under California law because he had failed to provide the court with records or declarations from witnesses who would have testified as to his whereabouts following the May 19, 2000 assault. (Pet'rs App. at 7.)

At the trial, both the prosecution and the defense presented evidence relating to Delgadillo's whereabouts following the May 19, 2000 assault. Officer Hans Zingheim, who was dispatched to locate Delgadillo, testified that he went to Delgadillo's apartment complex about forty-five minutes after Rosa Ramirez called 911. (Lodgment No. 3, Vol. 4 at 636-56.) He searched the area for Delgadillo's car, but was unable to find it. He also viewed Delgadillo's apartment from the outside and did not see any lights on inside the apartment, and concluded that Delgadillo was not there. He did not enter the apartment. ( Id.) Officer Vasquez testified that he went to Delgadillo's apartment between the hours of 9:00 p.m. and 7:00 a.m. about four or five times during the week following the May 19, 2000 assault in an attempt to arrest Delgadillo. (Lodgment No. 3, Vol. 3 at 404-06.) He was en route to Delgadillo's apartment early in the morning on May 27, 2000 when he saw Delgadillo driving his car about a block from his residence and arrested him. ( Id. at 399-404.) Delgadillo was cooperative. ( Id. at 404.)

As part of the defense case, Francisco Delgadillo, Herculano Delgadillo's brother, testified that Delgadillo worked in San Bernardino and stayed in hotels there during the week, returning to the apartment he shared with Ramirez and Francisco on the weekends. (Lodgment No. 3, Vol. 4 at 706.) Mauricio Delgadillo, who worked at the same company with Herculano Delgadillo, also testified that most of Delgadillo's work was in San Bernardino county, and that Delgadillo would spend the week at hotels in San Bernardino, returning to his apartment during the weekend. (Lodgment No. 3, Vol. 5 at 776.)

Delgadillo has not established that his attorney's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687. As the state court noted, Delgadillo has not specified what evidence his attorney should have but did not present, either in the form of declarations from witnesses detailing what their testimony would have been or records of his employment. Without such evidence, and giving deference to counsel's actions as required by Strickland, this Court presumes that counsel's actions were reasonable and tactical. See id. at 689. Moreover, although Delgadillo's attorney did present evidence, through the testimony of Francisco and Mauricio Delgadillo, showing that Delgadillo had a legitimate reason for being away from his residence from May 19 until May 27, there was certainly enough evidence presented by the prosecution to warrant the instruction and permit the jury to make up its mind as to the reasons for Delgadillo's disappearance. ( See Lodgment No. 3, Vol. 4 at 706, Vol. 5 at 776.)

Finally, Delgadillo has not established he was prejudiced by any error committed by counsel. See Strickland, 466 U.S. at 697. Even if defense counsel had presented more testimony and records regarding Delgadillo's whereabouts and had successfully argued against CALJIC No. 2.52, given the testimony of Ramirez, Vasquez and Behrendt, there is no reasonable likelihood that the jury would have come to a different conclusion regarding Delgadillo's guilt. Accordingly, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. at 412-13. Delgadillo is not entitled to relief as to this claim.

d. Failure to call Ramirez's mother as a defense witness

Delgadillo also argues that defense counsel's representation was ineffective when he failed to call Ramirez's mother as a defense witness. (Pet. at 9C-D.) Specifically, Delgadillo alleges that Florentina Ramirez, Rosa Ramirez's mother, could have testified that he never threatened Ramirez's family members. ( Id.) The state appellate court concluded that Delgadillo had not explained the significance of Ramirez's mother's testimony and had not presented a prima facie case for relief under California law. (Pet'rs App. at 7.)

Near the beginning of the defense case, defense counsel sought and received an in camera hearing with the judge. At the hearing, defense investigator, Elizabeth Cotten, told the judge that she and another defense investigator had called Florentina Ramirez to arrange her attendance at the trial. (Lodgment No. 3, Vol. 5 at 752-54.) During one of these phone calls, someone was heard yelling in the background. When the investigator asked who it was, Florentina told him it was Rosa. ( Id. at 754-55.) Defense counsel told the court that, according to his investigator, during the conversation, Rosa was heard to say that she would drive her mother to court. ( Id. at 755.) At that point, defense counsel decided that he was not going to call Florentina as a witness. ( Id. at 756.)

Defense counsel made a reasonable, tactical decision not to call Florentina. See Strickland, 466 U.S. 687. By pursuing Florentina as a witness, counsel risked having Rosa arrested and forced to testify, an outcome which counsel reasonably believed was not in Delgadillo's best interest. Moreover, Delgadillo was charged with making a terrorist threat against Ramirez, not Florentina or any of Ramirez's family members. ( See Lodgment No. 1 at 0008.)⁶ Thus, Florentina's testimony would have had little, if any impact, on the jury's decision. Under these circumstances, and giving deference to counsel's actions as required by Strickland, counsel's decision not to call Florentina was not ineffective. See Strickland, 466 U.S. at 687.

6 In addition, there was no evidence that Delgadillo ever threatened Florentina or any of Ramirez's family members; rather, according to Ramirez, Delgadillo communicated his threats to harm her family only to her. ( See Lodgment No. 3, Vol. 2 at 237-333 (Ramirez's preliminary hearing testimony), 333-69, Vol. 3 at 376-424 (Vasquez's testimony), Vol. 4 at 578.)

For the foregoing reasons, the Court concludes that the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. at 412-13.

e. Failure to object to the prosecutor's allegation that Delgadillo was a member of the Mexican Mafia

Delgadillo asserts that trial counsel should have objected to the prosecutor's reference to Delgadillo's alleged association with the Mexican Mafia during her closing argument, particularly since the trial judge had already ruled that the term "Mexican Mafia" should be sanitized in favor of the term "prison gang." (Pet. at 9D-E.) The state appellate court concluded that Delgadillo had failed to provide a sufficient record to evaluate the claim or to suggest what curative instruction could have been requested. (Pet'rs App. at 7.) The court also wrote that Delgadillo had failed to present a prima facie case for relief. ( Id.)

At the beginning of her closing argument, the prosecutor stated that Ramirez "believed not only that [Delgadillo] would harm her family, that he was a member of the Mexican Mafia, but she also believed that he would kill her rather than go to prison again." (Lodgment No. 3, Vol. 5 at 972.) As noted above, this Court must review counsel's performance with deference. Strickland, 466 U.S. at 689.

The prosecutor's reference to the Mexican Mafia was brief and isolated and was stated as Ramirez's belief rather than a proven fact. It is well within counsel's professional judgment to decide that an objection or a request for a curative instruction under such circumstances would have only served to highlight the matter to the jury. See id. at 687. Moreover, Delgadillo has not established that he was prejudiced by counsel's failure to object or ask for a curative instruction. See id. at 697. Given the testimony of Ramirez, Vasquez and Behrendt, there is no reasonable probability that the jury would have come to a different conclusion had defense counsel objected to the statement or asked for a curative instruction. Id.

For the foregoing reasons, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, and Delgadillo is not entitled to relief. See Williams, 529 U.S. at 412-13.

f. Failure to make a strong objection to CALJIC Nos. 2.50.02 and 2.50.1

Delgadillo next argues that defense counsel failed to strongly object to CALJIC Nos. 2.50.02 and 2.50.1 which permit the jury to consider prior domestic violence offenses as evidence of guilt if the prior offenses are proven by the prosecution by a preponderance of the evidence. ( See CALJIC Nos. 2.50.02, 2.50.1; Lodgment No. 1 at 0082-84.) The state appellate court concluded that Delgadillo had not established he was prejudiced by counsel's failure to make a proper objection to CALJIC Nos. 2.50.02 and 2.50.1 and that he had failed to make a prima facie case for relief. ( See Pet'rs App. at 7.)

The prosecution asked that CALJIC Nos. 2.50.02 and 2.50.1 be given based on evidence she presented at trial of other, uncharged domestic violence offenses. (Lodgment No. 3. Vol. 5 at 926-28, 929-230.) The record reflects that defense counsel made a well reasoned and articulate objection to the instructions, arguing that the prosecution had not presented any evidence of crimes other than those charged. ( Id. at 928-29.) Nevertheless, the trial judge concluded that there was sufficient evidence of uncharged domestic violence offenses. ( Id. at 929-30.) Delgadillo does not specify what "extra effort" counsel should have undertaken which would have resulted in a more favorable result. See Strickland, 466 U.S. at 687. Giving deference to counsel's actions, as required by Strickland, the Court agrees that Delgadillo has not established that defense counsel's representation fell below an objective standard of reasonableness. Id. Accordingly, he has not established that the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. 412-13.

g. Failure to object to the court taking judicial notice of a clerk's written note

On August 28, 2000, Ramirez appeared in court and was ordered to return for trial on September 1, 2000. (Lodgment No. 1 at 0181.) She failed to appear on September 1, and a bench warrant issued for her arrest, but was held until September 6. ( Id. 0184.) A clerk's handwritten note at the bottom of the minute order states as follows: "Clerk spoke with witness Rosa Ramirez on 9/1/00 @ 10:30 a.m. to inform her to appear as indicated above. She said `ok'." ( Id.) Near the end of the prosecution's case in chief, the prosecutor asked the trial judge to take judicial notice of the clerk's handwritten note regarding Ramirez's failure to appear for trial on September 1, 2000. (Lodgment No. 3, Vol. 4 at 670-73.) After some clarification, defense counsel stated he did not object and the Court agreed to take judicial notice of the note. ( Id.)

The trial judge explained to the jury that he had been asked to take judicial notice of some facts, one of which was the clerk's note. (Lodgment No. 3, Vol. 4 at 695-96.) Specifically, the Court told the jury that on August 28, 2000, Rosa Ramirez appeared in court and was ordered to return to court on September 1. She did not appear on September 1 and Judge Wellington issued an order of attachment for her. ( Id. at 697.) The judge further informed the jury that Ramirez called the court later that morning, was told that the warrant had been issued but that it would be held until September 6 and that she was ordered to appear on September 6. ( Id.) Finally, the judge told the jury that Ramirez again failed to appear in court on September 6, and that the warrant for her arrest was released. ( Id.) The trial judge told the jury that they were to take these matters as facts. ( Id. at 697-98.)

Delgadillo claims that his counsel was ineffective for failing to object to the court taking judicial notice of the clerk's handwritten note. (Pet. at 9F.) Specifically, he claims that the clerk's note had a "damaging effect" on his defense because it "undermine[d] the credibility of Ms. Ramirez's recantation. . . ." ( Id.) The state appellate court concluded that Delgadillo had not established a prima facie case for relief with respect to this claim. (Pet'rs App. at 7.)

This Court agrees with the state appellate that Delgadillo has failed to establish his defense counsel was ineffective because he has not shown he was prejudiced by counsel's failure to object. See Strickland, 466 U.S. at 697. Delgadillo does not state how the clerk's note affected the credibility of Ramirez's recantation or how her credibility would have been enhanced had the judge not taken judicial notice of the note, especially since the jury already knew that Ramirez had been declared to be "unavailable" to testify. ( See Lodgment No. 3, Vol. 2 at 235-37.) Moreover, the credibility of Ramirez's recantation was independently undermined by her statements to Vasquez and Behrendt. Accordingly, Delgadillo is not entitled to relief as to this claim because the state court' denial was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. at 412-13.

4. Ineffective Assistance of Appellate Counsel (claim three)

Finally, Delgadillo argues that his appellate counsel was ineffective because she failed to properly raise his confrontation clause claim in the California Supreme Court. (Pet. at 8.) In its opinion, the state appellate found that because Delgadillo's attorney stated in the Reply brief that she was not claiming any evidentiary error from the admission of Ramirez's out of court statements as substantive proof, she had waived any claim that Ramirez's statements were inadmissible hearsay. (Lodgment No. 5 at 12-13, n. 6.) Delgadillo claims that because she did not contest the appellate court's finding in her Petition for Review in the California Supreme Court, the claim was waived there, too. Delgadillo argues that because this Confrontation Clause claim is meritorious, appellate counsel was ineffective for waiving it. (Pet. at 8-8D.)

Delagadillo raised this claim in a habeas corpus petition he filed in the California Supreme Court, which denied the claim without citation of authority. (Pet'rs Appx. at 4.) Accordingly, this Court must "look through" to the California Appellate Court's opinion denying the claim. ( See Pet'rs Appx. at 1-3.) That court said:

Here, Rosa's statements to police were testimonial evidence and were admissible at trial because she was unavailable and Delgadillo did cross-examine her at the preliminary hearing. Rosa's statements to others were admitted at trial largely without objection and Delgadillo does not specify which specific statements are objectionable. Several of Rosa's coworkers testified at the preliminary hearing and were also thoroughly cross-examined about Rosa's statements they related that incriminated Delgadillo.

Our Supreme Court has questioned but not decided whether Crawford can be applied retroactively to cases with final judgments. ( People v. Combs (2004) 34 Cal.4th 821, 842.) Delgadillo's appeal was final on September 17, 2002, before Crawford was decided. Even if Crawford applies to Delgadillo, he has not shown his Sixth Amendment right of confrontation was violated because Rosa was called as both a prosecution and defense witness at the preliminary hearing and was cross-examined on her statements that incriminated Delgadillo. As we noted on appeal, substantial evidence other than Rosa's statements supported the jury's verdict, including photographs, hospital records and independent observations of her injuries. (See People v. Harrison 2005 Cal. Lexis 2312 (March 3, 2005, So35367) [improper admission of testimonial hearsay requires reversal unless the court finds beyond a reasonable doubt that the jury verdict would have been the same absent any error, citing Neder v. United States (1999) 527 U.S. 1, 7-10].) Delgadillo has not established a miscarriage of justice to warrant further review [error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner, the petitioner is actually innocent of the crime or crimes of which he was convicted, or that the petitioner was convicted under an invalid statute ( In re Clark (1993) 5 Cal.4th 750, 759)].

(Pet'rs App. 1-2.)

"The proper standard for evaluating [a] claim that appellate counsel was ineffective . . . is that enunciated in Strickland [v. Washington]." Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Smith v. Murray, 477 U.S. 527, 535-36 (1986)). A petitioner must first show that his appellate counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). He must then establish he was prejudiced by counsel's errors. Id. at 694. To establish prejudice, a petitioner must demonstrate that he would have prevailed on appeal absent counsel's errors. Smith, 528 U.S. at 285. The state court did not cite or apply Smith or Strickland. Nevertheless, "so long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" the state court decision will not be "contrary to" clearly established federal law. Early, 537 U.S. at 8.

The Court has concluded that the state court unreasonably applied Supreme Court law when it upheld the admission of the testimony of Ramirez's coworkers and that the testimony was admitted in violation of the Sixth Amendment. ( See Report and Recommendation at section B(2)(b)(iv).) The Court has also concluded that the state court unreasonably applied Supreme Court law when it found counsel was not ineffective for failing to challenge the admissibility of the testimony of Behrendt, Souders and Ramirez's coworkers. ( See Report and Recommendation at B(3)(a).) Accordingly, the Court must also conclude that appellate counsel's failure to raise these meritorious issues on direct appeal was objectively unreasonable. See Strickland, 466 U.S. at 687. Moreover, Delgadillo has established he was prejudiced by appellate counsel's errors. As indicated by this Court's decision, had appellate counsel raised these meritorious issues, Delgadillo would have prevailed on appeal as to counts six and seven. Id. at 694.

For the foregoing reasons, the state court's denial of this claim as to counts one, two, three, four and five was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Thus, the Court recommends the petition be DENIED as to those counts. See Williams, 529 U.S. at 412-13. As to counts six and seven, the Court concludes the state court's denial was contrary to and an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. at 412-13. Accordingly, the Court recommends the petition be GRANTED as to counts six and seven.

IV. CONCLUSION AND RECOMMENDATION

The Court submits this Report and Recommendation to United States District Judge Dana M. Sabraw under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California. For the reasons outlined above, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation, and (2) directing that Judgment be entered granting in part and denying in part the Petition.

IT IS ORDERED that no later than March 1, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than March 31, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).