Opinion
Case No. CV 12-0765-JPR
05-29-2012
JOSE RODRIGUEZ, Petitioner v. T. OCHOA, Warden, Respondent
MEMORANDUM OPINION AND ORDER
DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE
PROCEEDINGS
On January 27, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. On March 21, 2012, after one extension of time, Respondent filed an Answer with an attached Memorandum of Points and Authorities. Petitioner did not file a reply. For the reasons discussed below, the Court denies the Petition and dismisses this action with prejudice.
BACKGROUND
On April 9, 2010, Petitioner was convicted by a jury of two counts of assault with a deadly weapon (Cal. Penal Code § 245(a)(1)). (Lodged Doc. 8, Clerk's Tr. at 21-23, 117-18, 121.) For each count, the jury found true that Petitioner personally inflicted great bodily injury (Cal. Penal Code § 12022.7) and used a knife (id. § 12022(b)(1)). (Lodged Doc. 8, Clerk's Tr. at 117-18.) The jury acquitted Petitioner of attempted murder. (Id. at 121.)
On July 15, 2010, the trial court struck the great-bodily-injury enhancements and sentenced Petitioner to three years in state prison. (Id. at 161-65.) He appealed, raising three arguments that correspond to the three grounds for relief alleged in the Petition. (Lodged Doc. 1.) On August 24, 2011, the California Court of Appeal affirmed the judgment but modified Petitioner's sentence to strike the deadly-weapon enhancement and stay a concurrent sentence. (Lodged Doc. 4.) On September 26, 2011, Petitioner filed a Petition for Review in the California Supreme Court, which summarily denied it on November 2, 2011. (Lodged Docs. 5, 6.) Petitioner did not file any state habeas petitions. (See Pet. at 5.)
PETITIONER'S CLAIMS
1. The trial court allowed the prosecution to present evidence and argument regarding Petitioner's silence in response to a police officer's questions, violating Petitioner's due process rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). (Pet. at 6.)
2. The trial court excluded relevant testimony from a defense witness, violating Petitioner's right to due process and to present a defense. (Pet. at 7.)
3. The trial court erred in instructing the jury on Petitioner's flight from the scene of the crime. (Pet. at 8.)
SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL
The factual summary set forth in a state appellate court opinion is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1). See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.l (9th Cir. 2009). Because Petitioner does not challenge the sufficiency of the evidence, the Court adopts the following factual summary from the California Court of Appeal opinion as a fair and accurate summary of the evidence presented at trial.
I. The Prosecution Case
In approximately July or August of 2009, Jose Santos Escobar [FN3] rented a bedroom in an apartment in Compton that Sandra Munoz shared with [Petitioner] and her three children. At the time, Escobar had a romantic relationship with Munoz and it continued after he moved in. In the early part of November, Munoz asked Escobar to move to the attached garage. According to Escobar, she requested that he move because [Petitioner] was jealous of him.
[FN3.] Escobar acknowledged he had suffered two prior convictions for possession of drugs with the intent to sell. He also admitted obtaining fake identification cards and using different names.On the night of November 4, 2009, Escobar returned home from work. He went into the apartment to take a
shower. [Petitioner] and Munoz's children were inside. As Escobar walked toward [Petitioner], [Petitioner] stared at him and asked, "What's going on between you and my woman?" Escobar replied that if [Petitioner] wanted to know, he had to ask Munoz. As Escobar walked by, [Petitioner] touched him in the back and when Escobar turned, [Petitioner] stabbed him in the sternum with a pocket knife. Escobar had no weapons and was carrying nothing in his hands. [Petitioner] continued to stab Escobar in the chest, arms, and legs and said a number of times that he was going to kill him. During the attack, [Petitioner] also slashed Escobar's face. As the assault ensued, Escobar did not strike [Petitioner] or threaten him.
Near the end of the incident, Escobar grabbed the knife and sustained cuts to his hand. During the struggle over the knife, Escobar slipped and fell to the floor. [Petitioner] stabbed him a final time in the leg, ran out the front door, got into his car, and left. Escobar, bleeding profusely, told one of Munoz's children to call the police.
Escobar said he was stabbed or cut 25 times. He had a number of scars as a result of the attack, which he exhibited to the jury. He was in the hospital for five days and was still suffering lingering effects from the stabbing at the time of trial.
At the time of the incident, Escobar weighed 125 pounds. [Petitioner] weighed more than 200 pounds.
. . . .
On the evening of November 4, 2009, Los Angeles County Deputy Sheriff Marco Miranda came in contact with [Petitioner], who was seated in the backseat of a patrol car. Deputy Miranda understood that [Petitioner] had driven to the station and had spoken with another deputy. Deputy Miranda observed that [Petitioner] had no bruising, swelling, or cuts to his face, arms, or upper body. [Petitioner] had dried blood on his cheek and dried and wet blood on his clothes and hands. Deputy Miranda did not see any injuries to [Petitioner]'s hands.
After being advised of and waiving his [Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)] rights, [Petitioner] told the deputy that he stabbed Escobar in self-defense. When Deputy Miranda attempted to ask further questions, [Petitioner] became uncooperative and said that was all he was going to say. The interview ended. When conducting a later search of the car [Petitioner] had driven to the station, Deputy Miranda located a folding knife with bloodstains on the blade.
. . . .
Deputy Miranda also spoke to Escobar. Escobar said that he and [Petitioner] were arguing when [Petitioner] took out a knife and stabbed him in the arm. [Petitioner] then stabbed him in the chest. Escobar did not describe any other injuries. Deputy Miranda observed both wounds. Although Deputy Miranda noticed only those
large wounds, he could not say whether Escobar had suffered any other injuries due to the amount of blood on Escobar's body.
II. The Defense Case
Twelve-year-old Maite Marquina lived in the apartment with her mother, Sandra Munoz, [Petitioner], Escobar, and two brothers. She saw Escobar threaten [Petitioner] two or three times. During one such threat, she observed Escobar with a knife. He was holding it up to protect Munoz because [Petitioner] was yelling at her. She also heard Escobar say he wished that [Petitioner] would be struck by a car or attacked by dogs. Maite acknowledged that she loved [Petitioner] and did not want him to get in any trouble.(Lodged Doc. 4 at 2-8 (footnote omitted).)
Leonel Guizar is [Petitioner]'s neighbor. They had lived in the same apartment building for seven years. He believed [Petitioner] to be a good man who never bothered another neighbor. In February 2010, three months after the November incident, Escobar and Munoz threatened to beat Guizar because Guizar told Escobar to move a truck out of the driveway. Guizar called the police. He admitted that he told police that Munoz had threatened to kill him and that the person who was with Munoz was bald. Guizar conceded that Escobar is not bald. Nonetheless, he was certain it was Escobar who threatened him.
Maria Ruelas has been [Petitioner]'s next door neighbor for seven years and considers him a friend. She opined that [Petitioner] is a peaceful man. She believed
Escobar to be an aggressive person. Two days before the November incident, Ruelas was sweeping her patio. For no reason, Escobar opened the door and called her a stupid old lady. Afterwards, [Petitioner] and Munoz stepped outside. Escobar cursed [Petitioner] and said he was going to kill him or get a Long Beach gang to do it for him.
Sotelo Garcia is acquainted with Escobar and [Petitioner]. He had a conversation with Escobar after what Garcia called the "accident," referring to the stabbing. He later changed his statement and said they spoke before the accident. Still later, he acknowledged it was possible the encounter was after the accident. Garcia approached Escobar because he appeared angry and Garcia wanted to ascertain why. Escobar said he was very bothered by the fact that [Petitioner] continued to live in the home with Munoz. Garcia responded that it was appropriate that Escobar was the one who left. (Escobar did not return to the apartment after the stabbing.) Escobar said that he wanted to kill [Petitioner]. When Garcia asked why, Escobar did not answer.
Sandra Munoz has had a relationship with [Petitioner] for seven years. She believes he is a peaceful person. In approximately April 2009, she entered into a romantic relationship with Escobar even though she continued to live with [Petitioner] . According to Munoz, [Petitioner] was unaware of her romance with Escobar. [Petitioner] respected Escobar as
a renter; Escobar was aggressive with [Petitioner], saying often that he did not like him. On occasion, while Munoz was arguing with [Petitioner], Escobar would insert himself into the discussion, pull his knife, and curse. Three months after Escobar began renting a bedroom in the apartment, Munoz asked him to move into the garage because he was violent, rude, and aggressive.
On November 9, five days after the stabbing, Munoz contacted the police and informed them that Escobar was threatening her. Later, Munoz corrected herself and said the threat occurred before the November 4 stabbing. She said Escobar told her that he would tell [Petitioner] , her children, and the neighbors she had AIDS if she did not stop seeing [Petitioner]. Munoz acknowledged that she had the AIDS virus, but she had not told anyone other than her sister about her condition. Escobar knew she had the AIDS virus because he and Munoz met at an AIDS clinic.
About two weeks before the trial, Munoz went to a Laundromat with Escobar. While there, Escobar told her not to come to court or she would regret it. She did not report the threat to police. She opined that Escobar was an aggressive and violent person.
[Petitioner] said that on November 4, 2009, he was living with Munoz and her three children. Escobar stayed in the garage. That evening, Munoz called and asked him to pick her up at the Laundromat. As [Petitioner] was gathering his things, Escobar came into the kitchen.
[Petitioner] asked Escobar why he was inside, as ordinarily Escobar did not come into the apartment during night time hours. Escobar cursed and threatened to kill him. At that point, Escobar "launched himself against [Petitioner]." [Petitioner] noticed Escobar had something shiny in his hand. Escobar struck him with his forearm, breaking [Petitioner]'s glasses. [Petitioner] grabbed Escobar and they struggled. Escobar reached for something near his pocket and tried to open it, but [Petitioner] prevented him from doing so. Escobar began putting pressure under [Petitioner]'s chin and choking him. [Petitioner] took out his knife and cut Escobar on the arm to get Escobar off of him. [Petitioner] was afraid because every day during the prior month Escobar had threatened to kill him. [Petitioner] shouted at Javier to call the police.
The men continued to struggle. [Petitioner] cut Escobar several times; however, he did not know how many wounds he inflicted. [Petitioner] had no idea how Escobar came to have so many wounds, as he did not intentionally stab him. [Petitioner] could not explain Escobar's chest wound, saying he did not stab him there. At some point, Escobar fell to the ground. [Petitioner] denied stabbing him further. He ran across the street to the police station. Later, he said he drove his car to the station.
During the struggle, [Petitioner] thought Escobar was going to kill him and the children. [Petitioner]
acknowledged that he was not stabbed or cut during the incident.
When [Petitioner] drove to the police station, he was in the midst of having a heart attack. He was gasping for air. He told an officer that he had stabbed Escobar in self-defense. After he told the officers he was having a heart attack, they took pictures of him and placed him into the backseat of a patrol car. [Petitioner] said that no one at the station advised him that he had a right to remain silent.
STANDARD OF REVIEW
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
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. Under AEDPA, the "clearly established Federal law" thatcontrols federal habeas review of state-court decisions consists of holdings of Supreme Court cases "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000).
Although a particular state-court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. Id. at 391, 413. A state-court decision is "contrary to" clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365, 154 L. Ed. 2d 263 (2002). A state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Id.
State-court decisions that are not "contrary to" Supreme Court law may be set aside on federal habeas review only "if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts' (emphasis added)." Id. at 11. A state-court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. Williams, 529 U.S. at 406-08. To obtain federal habeas relief for such an "unreasonable application," however, a petitioner must show that the state court's application of Supreme Court law was "objectively unreasonable." Id. at 409-10. In other words, habeas relief is warranted only if the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. _, 131 S. Ct. 770, 786-87, 178 L. Ed. 2d 624 (2011).
Here, Petitioner raised all three grounds for relief on direct appeal. (Lodged Doc. I.) The court of appeal denied claims two and three on the merits and as to claim one — Petitioner's Doyle-error claim — found that any error was harmless. (Lodged Doc. 4 at 8-9.) Petitioner asserted the same arguments in his Petition for Review; the California Supreme Court summarily denied it. (Lodged Docs. 5, 6.) Thus, the Court "looks through" the state supreme court's silent denial to the last reasoned decision as the basis for the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590, 2595, 115 L. Ed. 2d 706 (1991) (holding that California Supreme Court, by its silent denial of petition for review, presumably did not intend to change court of appeal's analysis); see also Berghuis v. Thompkins, 560 U.S. _, 130 S. Ct. 2250, 2259, 176 L. Ed. 2d 1098 (2010) (when state supreme court denies discretionary review of decision on direct appeal, that decision is relevant state-court decision for purposes of AEDPA's standard of review). Because the court of appeal adjudicated Petitioner's claims on the merits, the Court reviews them under the deferential AEDPA standard of review. See Richter, 131 S. Ct. at 784.
DISCUSSION
I. Any Doyle error was harmless
Petitioner argues in ground one that his due process rights were violated when the trial court allowed the prosecutor to comment on his silence in response to some of Officer Miranda's questions about the stabbing. Although Petitioner apparently voluntarily gave a statement to police asserting that he had stabbed Escobar in self-defense, he subsequently refused to answer any of the police's questions concerning details of what had happened.
A. Background Facts
Before allowing into evidence testimony regarding Petitioner's silence, the trial court heard arguments outside the presence of the jury as to its admissibility. (Lodged Doc. 7, 3 Rep.'s Tr. at 908-18.) The trial court concluded that it was admissible (id. at 913-15), and Officer Miranda then testified in front of the jury as follows:
Q. Now, the Defendant admitted to you that he stabbed the - Mr. Escobar, the victim. And did he - and then he said that it was in self-defense; correct?(Id. at 965-66.)
A. Correct.
Q. Did you ask him further details about the self-defense that he claimed?
A. I attempted to ask him.
Q. What happened?
A. He just became uncooperative, and he said that's all he's gonna tell me.
Q. So the Defendant didn't tell you any other information about how he defended himself?
A. Correct.
Q. At that time did you ask him any further questions?
A. No.
Q. Did the Defendant ever tell you anything about Mr. Escobar —
[Defense Counsel]: Objection. Miranda.
Q. [Prosecutor]: — having a knife?
A. No.
THE COURT: I'm sorry?
[Defense Counsel]: Objection. Miranda.
THE COURT: You mean during this conversation, after the Miranda rights; correct?
[Prosecution]: After the Miranda rights, correct.
THE COURT: Overruled.
THE WITNESS: No.
Q. [Prosecutor]: Did the Defendant ever tell you anything about —
[Defense Counsel]: Objection. May we approach?
THE COURT: No. Denied.
Proceed.
. . . .
Q. Did the Defendant ever tell you anything about Mr.
Escobar striking him or using any force against
him? A. No.
Q. When you were talking to the Defendant and observing him in the car, did he ever complain of any injuries to him, meaning the Defendant?
A. He did not.
The prosecutor also questioned Petitioner on cross- examination about his failure to tell the police exactly what had happened. Petitioner responded that he "just told [the officer] that I had been attacked in my house and that I defended myself," and he did not answer further questions because he was "having a heart attack." (Lodged Doc. 7, 4 Rep.'s Tr. at 1847-51.) Petitioner then testified, contrary to Officer Miranda's testimony, that he was never read his Miranda rights. (Id. at 1852-53.) He reiterated that he told the officer he stabbed Escobar in self-defense but didn't say anything more about the incident because he was sick and needed to be taken to the hospital. (Id. at 1853.) Officer Miranda testified that after taking pictures of Petitioner for evidence, he took Petitioner to the hospital, where he was examined and given an EKG. (Lodged DOC. 7, 3 Rep.'s Tr. at 949, 956.)
The timing of Petitioner's arrest is unclear from the evidence before the Court. Based on Officer Miranda's testimony, it appears that Petitioner arrived at the police station, spoke to other officers, and then spoke to Officer Miranda, who read him his Miranda rights and questioned him about the stabbing. (Lodged Doc. 7, 3 Rep.'s Tr. at 948, 691-63.) Petitioner apparently told the police as soon as he arrived at the station that he had stabbed someone. (Lodged Doc. 8, Clerk's Tr. at 4546 (911 operator notes that "suspect" from assault at Petitioner's address had arrived at station).) At some point, apparently before Officer Miranda questioned him, Petitioner was placed in the back of a patrol car and "detained." (Id. at 94 8, 964, 968.) Petitioner then was taken to the hospital. (Id. at 949.) Officer Miranda testified that Petitioner was "not in custody" at the time he was placed in the patrol car and was free to leave, although he earlier testified that Petitioner was being "detained" at that time. (See id. at 948, 967.) The officer acknowledged that Petitioner was in custody by the time they arrived at the hospital. (Id. at 954.) The record does not appear to show exactly when Petitioner was formally arrested.
Petitioner testified, however, that no one ever read him his Miranda rights. (See Lodged Doc. 7, 4 Rep.'s Tr. at 1852-53.)
The prosecutor did not mention Petitioner's post-Miranda silence during his opening statement. (See Lodged Doc. 7, 2 Rep.'s Tr. at 622-26.) During closing argument, the prosecutor pointed out that Petitioner had not answered when the police asked him about the details of the incident, and then argued:
[A]t trial he conveniently says, "well, that's because I was having a heart attack." But he was still able to pose for the pictures. He was still able to drive himself there. There is no medical treatment he receives at the police station. Doesn't make sense. What makes sense is that it wasn't self-defense and he was just trying to cook something up.(Id. at 2155-56.) Later in his closing argument, the prosecutor stated that Petitioner's story was "completely bogus," "unreasonable," and "made up," and that " [i]f it were true, he would have told that to the police, and it would have made a heck of a lot more sense when he was testifying on the stand." (Id. at 2180.)
The prosecutor also mentioned Petitioner's silence in rebuttal argument. He reiterated that, had the stabbing occurred in the way Petitioner testified, he
would have gone to the police station, he would have told the police what happened. He would have said, "Escobar came at me this way. That's why I pulled out the knife and stabbed him. And then after I stabbed him with the knife, he was still coming at me and threatening me and throwing punches at me. And that's why I stabbed him again."(Id. at 2214.) He also argued that the jury never heard "anything at the police station that the defendant was having a heart attack or, you know, whatever, he complained he was having shortness of breath or anything like that" because "[i]t's made up to dissuade you, to mislead you." (Id. at 2217.). He also argued that "any reasonable person would have told the deputy exactly what happened" and why the stabbing was self-defense, but Petitioner did not do so. (Id. at 2219.)
In fact, Officer Miranda testified that he "took [Petitioner] to the hospital later on that evening [of the stabbing]" because "he was complaining of chest pain." (Lodged Doc. 7, 3 Rep.'s Tr. at 949.)
--------
The court of appeal denied Petitioner's Doyle claim:
[Petitioner] asserts he invoked his right to remain silent when he told Deputy Miranda that he was going to say nothing more. Thus, he argues, the court erred in allowing the prosecution to question Deputy Miranda further and to comment on his post-arrest silence during argument. The Attorney General responds that(Lodged Doc. 4 at 9.)
[Petitioner] did not clearly and unambiguously invoke his right to remain silent and the prosecutor properly asked the deputy whether [Petitioner] said that Escobar had attacked him and precipitated the assault. In light of the overwhelming evidence of [Petitioner]'s guilt, we need not resolve the dispute.
[Petitioner]'s self-defense plea was rejected by the jury due to the simple unassailable fact that Escobar suffered 25 stabs or cuts, including a potentially life threatening stab wound to his sternum, and [Petitioner] escaped without a scratch. [Petitioner] could not explain how Escobar came to have so many wounds, and he expressly denied stabbing Escobar in the chest. He argues the case was close, as demonstrated by the jury verdict acquitting him of attempted murder. Not so. The acquittal on the greater offense establishes that the jury did not find [Petitioner] intended to kill Escobar, not that [Petitioner] had legal cause to assault him. Doyle error, if any, could not have affected the jury's verdict and was harmless beyond a reasonable doubt. (See People v. Earp (1999) 20 Cal. 4th 826, 857-858 [Doyle error is subject to harmless error test set forth in Chapman v. California (1967) 386 U.S. 18, 24.].)
B. Applicable Law
The Fifth and Fourteenth amendments' prohibition against compelled self-incrimination requires police to warn a suspect before custodial interrogation that he has the right to remain silent and to the presence of an attorney. Miranda, 384 U.S. at 479. If he indicates that he wishes to remain silent, "the interrogation must cease"; if he requests counsel, "the interrogation must cease until an attorney is present." Id. at 474.
Once a defendant waives his Miranda rights, he may subsequently invoke his right to remain silent as to particular questions. Hurd v. Terhune, 619 F.3d 1080, 1087 (9th Cir. 2010). "[I]t is enough" to invoke the right to silence for a suspect to say "he does not want to answer that question." Id. at 1089.
Under Doyle, a prosecutor cannot impeach a defendant with his post-arrest silence following the issuance of Miranda warnings. See Doyle, 426 U.S. at 618-19. Indeed, the prosecutor may not comment on or refer to that silence in any way. See United States v. Lopez. 500 F.3d 840, 844 (9th Cir. 2007) (prosecutor's closing argument commenting on defendant's post-Miranda silence violates Doyle). The rationale for this rule "rests on the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S. Ct. 634, 638, 88 L. Ed. 2d 623 (1986) (internal quotation marks omitted) (holding that prosecution may not use defendant's silence during case-in-chief).
Miranda protections are generally triggered "only where there has been such a restriction on a person's freedom as to render him in custody." Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528, 128 L. Ed. 2d 293 (1994) (internal quotation marks omitted). "[I]n custody" means "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275 (1983) (per curiam) (internal quotation marks omitted). It is not at all clear, however, that a suspect must be in custody for Doyle to apply; it would appear to apply any time a suspect has been read his Miranda rights and receives the implicit assurance that his silence won't be used against him at trial. See Doyle, 426 U.S. at 618-19 (reasoning that when suspect chooses to remain silent after being assured by Miranda warning that he has right to remain silent, assurance that his silence "will carry no penalty" is "implicit" and thus "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial"); see also Kappos v. Hanks, 54 F.3d 365, 368-69 (7th Cir. 1995) (finding Doyle violation in use of pre-arrest, post-Miranda silence to impeach defendant who claimed that reason for not continuing to answer police questions was that he was ill).
But assuming someone must be in custody for Doyle to apply, neither Miranda nor its Supreme Court progeny set down any bright-line rule or specific test for determining when that has taken place. Instead, those cases suggest that the totality of the circumstances of each case must be examined to determine whether the suspect was in custody. See Yarborough v. Alvarado, 541 U.S. 652, 661-62, 124 S. Ct. 2140, 2148, 158 L. Ed. 2d 938 (2004). The determination is based on an objective inquiry into 1) the circumstances surrounding the interrogation and 2) whether a reasonable person would have felt at liberty to end the interrogation and leave, given those circumstances. Thompson v. Keohane. 516 U.S. 99, 112, 116 S. Ct. 457, 465, 133 L. Ed. 2d 383 (1995) . Relevant factors include "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning." Howes v. Fields, 565 U.S. _, 132 S. Ct. 1181, 1189, 182 L. Ed. 2d 17 (2012) (citations omitted). The subjective views harbored by either the interrogating officers or the person being questioned are irrelevant to the custody determination; the test is an objective one, and "the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Stansbury, 511 U.S. at 322 (internal quotation marks and alteration omitted).
When Doyle has been violated, a petitioner is not entitled to habeas relief "unless the error 'had substantial and injurious effect or influence in determining the jury's verdict.'" Hurd, 619 F.3d at 1089-90 (quoting Brecht v. Abrahamson, 507 U.S. 619, 622, 637-38, 113 S. Ct. 1710, 1714, 1722, 123 L. Ed. 2d 353 (1993)) . In evaluating whether Doyle error was harmless, the habeas court "attempts to determine not whether the jury would have decided the same way even in the absence of the error, but whether the error influenced the jury." Hurd, 619 F.3d at 1090 (internal quotation marks omitted). In doing so, the court considers "(1) the extent of the comments, (2) whether an inference of guilt from silence was stressed to the jury, and (3) the extent of other evidence suggesting the defendant's guilt." Id. (alterations omitted). A federal habeas court applies the harmless-error standard enumerated in Brecht "without regard for the state court's harmlessness determination." Merolillo v. Yates. 663 F.3d 444, 455 (9th Cir. 2011).
C. Analysis
Respondent concedes that under Hurd, Petitioner's answers were unambiguous and did invoke his right to silence (Mem. P & A at 14-15) but argues that Doyle nonetheless does not apply because Petitioner was not in custody when Officer Miranda read him his Miranda rights and subsequently questioned him concerning the incident (id. at 15). Petitioner, on the other hand, testified that he was not read his Miranda rights at all. (Lodged Doc. 7, 4 Rep.'s Tr. at 1852-53.) In that circumstance, Doyle would not apply unless he was in fact in custody at the time of his silence. See United States v. Bushyhead, 270 F.3d 905, 912 (9th Cir. 2001) (once a defendant is in custody, "regardless whether the Miranda warnings are actually given, comment on the defendant's exercise of his right to remain silent is unconstitutional" (alterations and internal quotation marks omitted)).
The Court need not decide whether Doyle applies pre-arrest, post-Miranda or whether Petitioner was in fact in custody or was read his Miranda rights because, as the California Court of Appeal found, any error was harmless. Although it is a close call, under the three-factor test set out in Hurd, any Doyle error likely did not have a "substantial and injurious effect or influence" on the jury's verdict and was therefore harmless.
As in Hurd, the prosecutor "repeatedly stressed [Petitioner's] silence to the jury as evidence of his guilt[.]" 619 F.3d at 1090. In that case, however, the petitioner did not provide an alternative explanation for his silence; here, in contrast, the jury had the option to believe that Petitioner's silence was, as he testified (Lodged Doc. 7, 4 Rep.'s Tr. at 1847-53), a result of his suffering a "heart attack" or other illness rather than because he was conscious of his guilt. Indeed, Officer Miranda testified that Petitioner was taken to the hospital that evening and given an EKG because of his chest pains. Accordingly, the prosecutor's comments likely had less impact on the jury than in Hurd. Accord Kappos, 54 F.3d at 369 (holding that Doyle error was harmless when petitioner "later testified at trial and provided his own explanation for his silence and for his actions"). Moreover, unlike in Hurd, in which little evidence of the petitioner's guilt existed and some physical evidence corroborated his trial testimony, see 619 F.3d at 1090, here ample other evidence of Petitioner's guilt existed and his story was belied by the physical evidence. As the court of appeal pointed out, Petitioner's theory of self-defense was incredible given the undisputed fact that Petitioner stabbed the victim 25 times yet "escaped without a scratch." (Lodged Doc. 4 at 9.) The jury could have, and likely did, base its verdict on that fact alone. Accord Brecht, 507 U.S. at 639 (Doyle error harmless when ample other physical and forensic evidence cast doubt on petitioner's story that shooting of victim was accidental). Finally, the error was also harmless because Petitioner had apparently already admitted to officers, before he was Mirandized and subsequently refused to answer some questions, that he had stabbed someone in self-defense. Thus, any Doyle error the trial court committed in allowing evidence and argument concerning Petitioner's post-Miranda silence was harmless in light of the alternative explanation offered for Petitioner's silence and the strong evidence against him, and Petitioner is not entitled to habeas relief on this claim.
II. The court of appeal reasonably held that the trial court did not err in refusing to allow Munoz's testimony that Escobar assaulted and threatened her during trial
Petitioner's second ground for relief alleges that the trial court violated his rights to due process and to present a defense when it excluded evidence of Munoz's claim, in the midst of trial, that Escobar had recently assaulted her and threatened to harm her and her children if she testified. (Pet. at 7.)
During trial, the court allowed Petitioner to attack Escobar's credibility by introducing evidence that he had one misdemeanor and two felony convictions and used an alias, a "phony" identification card, and a "fake" green card. (Lodged Doc. 7, 2 Rep.'s Tr. at 601-03, 607-13; 3 Rep.'s Tr. at 920-24.) The defense also put on seven witnesses, including Munoz, who testified that Escobar had a violent character. (Lodged Doc. 7, 3 Rep.'s Tr. at 1216-94; 4 Rep.'s Tr. at 1545, 1547-49.) Munoz specifically testified that on another occasion, Escobar had threatened to harm her if she testified against him at trial. (Lodged Doc. 7, 4 Rep.'s Tr. at 1545, 1547-49.) After that evidence had been presented, the defense sought to introduce evidence that Escobar had assaulted Munoz during a weekend break in the trial and threatened to hurt her and her children if she testified. (Id. at 1508-10.) The trial court excluded the evidence under California Evidence Code section 352, finding that it was cumulative in light of the ample other evidence the jury-had already heard regarding Escobar's violent character; the court noted that the evidence would also be unduly time-consuming. (Id. at 1521, 1543, 1567-68.)
The court of appeal rejected Petitioner's claim that the exclusion of the evidence violated his constitutional rights:
As he did in the trial court, [Petitioner] urges the victim's character for violence was relevant to support his self-defense claim. Although he is correct, [Petitioner] ignores the fact that he presented a number of witnesses who testified to the victim's aggressive nature. Sandra Munoz, her three children, Leonel Guizar, Maria Ruelas, and Sotelo Garcia testified that the victim was aggressive. Some witnesses stated that he had threatened to kill [Petitioner] . Indeed, Munoz testified to two other incidents when the victim threatened her. There can be little question that her testimony concerning a third such incident was cumulative. On the other side of the scale, the court was aware that there were other witnesses who would be called if Munoz was allowed to give her version of events. [Petitioner] said there was a neighbor who observed the incident and the prosecutor stated there were two deputies who interviewed Munoz on the night in question and took pictures. Given the cumulative nature of Munoz's testimony and the(Lodged Doc. 4 at 11.)
consumption of time that would have been expended on the matter, the trial court's decision to exclude the testimony was not arbitrary or capricious. We discern no error.
Criminal defendants have a constitutional right to present relevant evidence in their own defense. See, e.g., Holmes v. South Carolina. 547 U.S. 319, 324, 126 S. Ct. 1727, 1731, 164 L. Ed. 2d 503 (2006) ("Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." (internal quotation marks omitted)). "However, a defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions, such as evidentiary and procedural rules." Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2009) (as amended) (internal quotation marks and brackets omitted). Indeed, "[s]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Holmes, 547 U.S. at 324 (internal quotation marks omitted); see also Moses, 555 F.3d at 757 ("[T]he Supreme Court has indicated its approval of well-established rules of evidence that permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." (internal quotation marks and brackets omitted)).
The exclusion of evidence pursuant to a state evidentiary rule is unconstitutional only if it "significantly undermined fundamental elements of the defendant's defense." United States v. Scheffer. 523 U.S. 303, 315, 118 S. Ct. 1261, 1267-68, 140 L. Ed. 2d 413 (1998); see also Moses. 555 F.3d at 757 ("Evidentiary rules do not violate a defendant's constitutional rights unless they infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve." (internal quotation marks and brackets omitted)). In sum, it takes "unusually compelling circumstances to outweigh the strong state interest in administration of its trials." Moses, 555 F.3d at 757 (internal quotation marks and ellipsis omitted).
The court of appeal's rejection of this claim was not objectively unreasonable. As that court noted, Petitioner was allowed to put on ample evidence to impeach Escobar's credibility and to show that he had a violent character. The additional evidence was not only cumulative, it was also somewhat suspect given Munoz's delay in reporting the alleged incident to the police (see Lodged Doc. 7, 4 Rep.'s Tr. at 1501-07) and her relationship with Petitioner and desire to see him acquitted (id. at 1513-14) . Moreover, as the court of appeal noted, the evidence would have been time-consuming to put on, given that there were several other witnesses to the incident who would likely have been called to testify and cross-examined. The court of appeal's ruling that the trial court reasonably exercised its discretion to exclude cumulative and unduly time-consuming evidence was not contrary to or an unreasonable application of clearly established federal law. Petitioner is not entitled to habeas relief on this claim.
III. Petitioner's instructional-error claim is not cognizable on habeas review: in any event, any error was harmless
Petitioner's third ground for relief alleges that the trial court erred in giving a flight instruction to the jury because Petitioner did not flee the scene of the crime to evade police but instead drove directly to the police station. (Pet. at 8.) The jury was instructed under CALCRIM No. 372 as follows:
If [Petitioner] fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that [Petitioner] fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that [Petitioner] fled or tried to flee cannot prove guilt by itself.(Lodged Doc. 7, 5 Rep.'s Tr. at 2132; see also Lodged Doc. 8, Clerk's Tr. at 87.)
The court of appeal observed, "It is difficult to conclude that [Petitioner] was attempting to flee when he went directly to the police station and was subsequently arrested." (Lodged Doc. 4 at 11-12.) It therefore held that the trial court erred in giving the flight instruction, but the error was harmless in light of the "wealth of evidence demonstrating [Petitioner]'s guilt." (Id.)
Claims of error in state jury instructions are generally matters of state law only. See Gilmore v. Taylor, 508 U.S. 333, 343, 113 S. Ct. 2112, 2118, 124 L. Ed. 2d 306 (1993); see also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). A state-law instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding." Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (internal quotation marks omitted). Habeas relief is available only when a petitioner demonstrates that "[an] ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 482, 116 L. Ed. 2d 385 (1991) (internal quotation marks omitted). A challenged instruction must be evaluated in the context of other instructions and the trial record as a whole, not in artificial isolation. Id.; United States v. Frady, 456 U.S. 152, 169, 102 S. Ct. 1584, 1595, 71 L. Ed. 2d 816 (1982).
Petitioner does not claim that the giving of the flight instruction violated his federal constitutional rights; his claim is thus not cognizable on habeas review. See Mitchell v. Goldsmith, 878 F.2d 319, 324 (9th Cir. 1989) (when petitioner "does not contend that the instruction violated federal constitutional standards ... no relief can be granted even if the instruction given might not have been correct as a matter of state law").
Even if this claim did present a federal constitutional question, any error was harmless. The wording of the instruction correctly admonished the jurors not to base a finding of guilt on Petitioner's flight alone. Moreover, if, as Petitioner contends, no evidence existed that he improperly fled the scene of the crime, the instruction by its very terms would have played no role in the jury's deliberations. The jury is presumed to have followed the instructions as given. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 733, 145 L. Ed. 2d 727 (2000). Thus, the jury's decision to convict Petitioner could not have been derived in meaningful part from its assessment of Petitioner's flight. Rather, the jury likely found Petitioner guilty because he admitted to stabbing Escobar numerous times — the evidence showed that there were 25 different injuries — and sustained no injuries himself, rendering his claim of self-defense incredible. See Morales v. Woodford, 388 F.3d 1159, 1172 (9th Cir. 2003) ("The evidence was so overwhelming that the constitutional error cannot be said to have had an effect upon the verdict in the case at hand.") For all these reasons, Petitioner is not entitled to habeas relief on this claim.
ORDER
IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.
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JEAN ROSENBLUTH
U.S. MAGISTRATE JUDGE