The opinion
1
2 UNITED STATES DISTRICT COURT
3 NORTHERN DISTRICT OF CALIFORNIA
4
5 PHILLIP GARCIA, Case No. 19-cv-02083-JD
6 Plaintiff,
ORDER RE HABEAS PETITION AND
7 v. CERTIFICATE OF APPEALABILITY
8 JOE LIZARRAGA, Re: Dkt. No. 1
Defendant.
9
10 Petitioner Phillip Garcia, a California state prisoner, brings five claims under 28 U.S.C.
11 § 2254 in this petition for habeas relief. Dkt. No. 1. The Court ordered respondent to show cause
12 why the writ should not be granted. Dkt. No. 3. Respondent filed an answer, Dkt. No. 14, and
13 Garcia filed a traverse, Dkt. No. 19. The petition is denied.
14 BACKGROUND
15 The California Court of Appeal provided a detailed account of the material facts and trial
16 proceedings that will not be repeated in toto here. See People v. Pettie, 16 Cal. App. 5th 23
17 (2017). The petition raises five claims for relief, which were previously raised in Garcia’s state
18 court appeal. Garcia’s first claim is that the court of appeal, after finding a violation of the
19 Confrontation Clause, erroneously applied Chapman v. California, 386 U.S. 18 (1967), to
20 conclude that the error was harmless for the attempted murder and assault convictions, as well as
21 several enhancements. See Dkt. No. 1 ¶ 11. Garcia’s four other claims, id. ¶¶ 12-15, were
22 rejected by the court of appeal on the merits, Pettie, 16 Cal. App. 5th at 32. The California
23 Supreme Court denied review. Dkt. No. 16-9.
24 In summary, Garcia was convicted of attempted murder, assault with a firearm, dissuading
25 a witness by force, conspiracy to dissuade a witness, and assault with means likely to commit
26 great bodily injury. Dkt. No. 1 ¶¶ 1, 3. Garcia’s sentence was enhanced by the jury’s findings that
27 some of the crimes were committed for the benefit of, at the direction of, or in association with a
1 principal personally used and discharged a firearm, and that Garcia personally used a firearm; and
2 that Garcia personally inflicted great bodily injury. Id. ¶¶ 2-3. Garcia was sentenced to a total of
3 42 years in prison, as well as an indeterminate life term on the gang enhancement. Id. ¶ 4.
4 In a state court appeal, Garcia and two of his codefendants, Vincent Pettie and Andrew
5 Lanford, raised several alleged trial errors, including the claims raised in Garcia’s petition. Pettie,
6 16 Cal. App. 5th at 32-33. The California Court of Appeal agreed with defendants’ claim that the
7 admission of certain testimony from the prosecution’s gang expert violated the Confrontation
8 Clause. Id. at 61-64 (citing Crawford v. Washington, 541 U.S. 36 (2004); People v. Sanchez, 63
9 Cal. 4th 665 (2016)). The court of appeal vacated Pettie’s conviction on all charges, and vacated
10 the gang enhancement convictions and gang-related life terms for Garcia and Langford, but found
11 that the error was harmless with regard to Garcia’s and Langford’s convictions on other charges
12 and enhancements. Id. at 66-68. The court also reversed defendants’ convictions on the witness
13 dissuasion charges based on instructional error. Id. at 68. The court of appeal rejected all of
14 Garcia’s other claims of trial error. Id. at 32. The Supreme Court of California denied Garcia’s
15 petition for review. Dkt. No. 16-9.
16 LEGAL STANDARDS
17 When a state court decides a claim on the merits, habeas relief can be granted only if the
18 state court decision (1) “was contrary to, or involved an unreasonable application of, clearly
19 established Federal law, as determined by the Supreme Court of the United States,” or (2) “was
20 based on an unreasonable determination of the facts in light of the evidence presented in the State
21 court proceeding.” 28 U.S.C. § 2254(d)(1) and (2); see also Martinez v. Sullivan, No. 17-CV-
22 04436-JD, 2019 WL 1877347, at *2 (N.D. Cal. Apr. 26, 2019). The first prong applies both to
23 questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 407-09
24 (2000), while the second prong applies to decisions based on factual determinations, Miller-El v.
25 Cockrell, 537 U.S. 322, 340 (2003).
26 A state court decision is “contrary to” Supreme Court authority if “the state court arrives at
27 a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
1 indistinguishable facts.” Williams, 529 U.S. at 412-13. A state court decision is an “unreasonable
2 application of” Supreme Court authority if it correctly identifies the governing legal principle from
3 the Supreme Court’s decisions but “unreasonably applies that principle to the facts of the
4 prisoner’s case.” Id. at 413. The federal court on habeas review may not issue the writ “simply
5 because that court concludes in its independent judgment that the relevant state-court decision
6 applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the
7 application must be “objectively unreasonable” to support granting the writ. Id. at 409.
8 A state court decision “based on a factual determination will not be overturned on factual
9 grounds unless objectively unreasonable in light of the evidence presented in the state-court
10 proceeding.” Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir.
11 2000). The Court presumes the correctness of the state court’s factual findings, and the petitioner
12 bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C.
13 § 2254(e)(1).
14 The state court decision to which Section 2254(d) applies is the “last reasoned decision” of
15 the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423
16 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state
17 court that considered the petitioner’s claims, the Court looks to the last reasoned opinion from a
18 lower court. See Nunnemaker, 501 U.S. at 801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079
19 n.2 (9th Cir. 2000). In this case, the Court looks to the decision by the California Court of Appeal
20 in resolving the habeas petition.
21 All of the claims raised in the petition were rejected on the merits by the court of appeal.
22 Consequently, the deferential standard of review under 28 U.S.C. § 2254(d) applies to those
23 claims. See Cullen v. Pinholster, 563 U.S. 170, 187 (2011).
24 DISCUSSION
25 I. HARMLESS ERROR
26 Garcia’s first claim is that the court of appeal misapplied Chapman and erroneously
27 determined that the admission of the gang expert’s testimony was harmless for the non-gang-
1 was an adjudication on the merits that is entitled to deference. See Davis v. Ayala, 576 U.S. 257,
2 269 (2015). The Court may not overturn that decision unless the court of appeal “applied
3 Chapman in an objectively unreasonable manner. When a Chapman decision is reviewed under
4 AEDPA, a federal court may not award habeas relief under § 2254 unless the harmlessness
5 determination itself was unreasonable. . . . [A] state-court decision is not unreasonable if
6 fairminded jurists could disagree on its correctness. . . . [The petitioner] therefore must show that
7 the state court’s decision to reject his claim was so lacking in justification that there was an error
8 well understood and comprehended in existing law beyond any possibility for fairminded
9 disagreement.” Id. at 269-70 (internal quotations and citations omitted).
10 If the federal court determines that the state court’s harmless-error analysis was objectively
11 unreasonable, it also must find that the error was prejudicial under Brecht v. Abrahamson, 507
12 U.S. 619 (1993), before it can grant relief. See Fry v. Pliler, 551 U.S. 112, 119-20 (§ 2254(d)(1)
13 did not displace Brecht). Under the Brecht standard, the Court may grant habeas relief only if it
14 has “grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or
15 influence in determining the jury’s verdict.’” Davis, 576 U.S. at 268 (quoting O’Neal v.
16 McAninch, 513 U.S. 432, 436 (1995)). The Brecht test is “more stringent” than the preconditions
17 set out by AEDPA and Chapman. Deck v. Jenkins, 814 F.3d 954, 985 (9th Cir. 2016).
18 The court of appeal held that the admission of the gang evidence was constitutional error,
19 Pettie, 16 Cal. App. 5th at 64, and that the error was not harmless with regard to all defendants’
20 gang enhancements, id. at 66. The court also held that the jury likely relied on the gang evidence
21 in finding Pettie guilty of substantive charges against him. Id. at 67-68. But the court found that
22 the admission was harmless with respect to Garcia’s and Langford’s convictions on non-gang-
23 related charges, mainly because of substantial additional evidence against them. Id. at 66-67.
24 Specifically, the court of appeal found that the prosecution presented evidence of Garcia’s guilt
25 other than the prosecution’s gang expert testimony. Id. Such evidence is relevant to the Brecht
26 standard. See Sims v. Brown, 425 F.3d 560, 570-71 (9th Cir.), amended, 430 F.3d 1220 (9th Cir.
27 2005).
1 Garcia says that the court of appeal did not properly weigh the effect of the inadmissible
2 evidence on the jury’s verdict, citing the importance of the gang evidence to the prosecution’s
3 case, and that it is not clear that the remaining evidence was strong enough to sustain a conviction
4 given the countervailing evidence presented by the defense. Dkt. No. 1 at 5-71; Dkt. No. 19-1 at
5 1-3. Respondent says that the court of appeal’s harmless error analysis was correct, and that
6 Garcia cannot show that the gang testimony had a substantial and injurious effect on the jury’s
7 verdict. Dkt. No. 14 at 11-13.
8 The problem for Garcia is that his arguments are little more than mere disagreements with
9 the court of appeal’s conclusions. The court identified the correct legal standards, and applied
10 them in a clear and logical manner. Garcia has not shown that there was anything objectively
11 unreasonable about the court of appeal’s analysis. This also forecloses any possibility of a finding
12 of prejudice under the Brecht “substantial and injurious effect” standard. Habeas relief is denied
13 on this claim. See Fry, 551 U.S. at 121-22; Brecht, 507 U.S. at 623.
14 II. JOINDER
15 The court of appeal upheld the trial court’s denial of Garcia’s motion to bifurcate or sever
16 the gang charges. Pettie, 16 Cal. App. 5th at 43-46. Garcia says that this deprived him of a fair
17 trial because it exposed the jury to evidence relating to his gang affiliation that would not
18 otherwise have been presented. Dkt. No. 1 at 8-11; Dkt. No. 19-1 at 3-4.
19 No clearly established Supreme Court precedent addresses when a trial in state court must
20 be severed for multiple defendants. See Martinez v. Yates, 585 F. App’x 460, 460 (9th Cir. 2014)
21 (unpublished); Mulan v. Arnold, No. 15-cv-01003-JD, 2017 WL 1407717, at *3-4 (N.D. Cal. Apr.
22 20, 2017), aff’d, 783 Fed. Appx. 774 (9th Cir. 2019). The Supreme Court indicated in a footnote
23 in United States v. Lane that “misjoinder would rise to the level of a constitutional violation only
24 if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial.”
25 474 U.S. 438, 446 n.8 (1986). But the Ninth Circuit has held this footnote “does not qualify as
26 clearly established federal law under federal habeas law.” Collins v. Runnels, 603 F.3d 1127,
27
1 1132 (9th Cir. 2010). Consequently, Garcia is not entitled to habeas relief on this ground. See
2 Martinez, 585 F. App’x at 460.
3 Even if, in the absence of Supreme Court precedent, Ninth Circuit case law were applied,
4 the court of appeal’s severance determination was not objectively unreasonable. In our circuit,
5 due process may be violated when the denial of severance would render a trial fundamentally
6 unfair. Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997); see also Park v. California, 202
7 F.3d 1146, 1149 (9th Cir. 2000). The requisite level of unfairness is reached only “if the
8 impermissible joinder had a substantial and injurious effect or influence in determining the jury’s
9 verdict.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (internal quotation omitted). “In
10 evaluating prejudice, the Ninth Circuit focuses particularly on cross-admissibility of evidence and
11 the danger of ‘spillover’ from one charge to another.” Id.
12 The court of appeal held that the evidence was admissible under California law, which
13 significantly reduces the potential prejudice to petitioners. See id. at 638-39. Specifically, the
14 court of appeal held that “while gang-related evidence is necessarily inflammatory to some degree,
15 the gang evidence presented here was substantially outweighed by its probative value.” Pettie, 16
16 Cal. App. 5th at 45. These conclusions are not objectively unreasonable or otherwise infirm.
17 Garcia makes no countervailing showing that the evidence would not have been admissible in
18 separate trials.
19 A joint trial was not fundamentally unfair. Habeas relief is denied on this claim.
20 III. BRADY ISSUE
21 Garcia’s third claim is that the state courts erred in denying him a new trial based on an
22 alleged violation of Brady v. Maryland, 373 U.S. 83 (1963). Dkt. No. 1 at 12-15; Dkt. No. 19-1 at
23 5-7; see also Kyles v. Whitley, 514 U.S. 419, 437 (1995). After trial, the defense learned that one
24 of the prosecution’s witnesses had three misdemeanor convictions that had not been disclosed.
25 Pettie, 16 Cal. App. 5th at 72. The court of appeal found no Brady violation because this
26 undisclosed impeachment evidence was not material in that the witness “was secondary to the
27 prosecution’s case,” and “the evidence of her past conduct was remote in time, and her offenses
1 For a Brady claim to succeed, a petitioner must show: (1) that the evidence at issue is
2 favorable to the accused, either because it is exculpatory or impeaching; (2) that it was suppressed
3 by the prosecution, either willfully or inadvertently; and (3) that it was material (or, put
4 differently, that prejudice ensued). Banks v. Dretke, 540 U.S. 668, 691 (2004). Garcia disagrees
5 with the court of appeal’s findings, but has not shown that any of these elements weigh in his
6 favor. Nor has he shown that the “new” evidence is sufficient to undermine confidence in the
7 verdict, especially given the other evidence against him. See Wearry v. Cain, 136 S. Ct. 1002,
8 1006 (2016) (per curiam). Habeas relief is denied on this claim.
9 IV. JUROR BIAS
10 Garcia’s fourth claim is that he was denied the right to be tried by an unbiased jury. Dkt.
11 No. 1 at 15-20; Dkt. No. 19-1 at 7-9. After the prosecution’s closing argument, the trial court
12 informed the parties that four jurors reported potential external influences, including suspected
13 attempts to intimidate them. Pettie, 16 Cal. App. 5th at 76-78. The trial court questioned each of
14 the jurors who had experienced or discussed these incidents. Id. at 77-78. After all these jurors
15 were questioned and affirmed that they could judge the case based solely on the merits, the trial
16 court asked counsel if they wished to raise any concerns. Id. at 78. Garcia’s counsel expressed a
17 concern whether the court had identified and questioned all the jurors involved, but declined the
18 court’s invitation to question all the jurors. Id.
19 The court of appeal denied Garcia’s juror bias claim because his trial counsel did not
20 request any further remedy from the trial court. Id. at 79-80. The court of appeal noted that
21 counsel expressly declined to have the trial court examine the remaining jurors, and also
22 proceeded to reject both of Garcia’s arguments on the merits. Id. According to the court of
23 appeal, Garcia pointed “to nothing in the record to indicate the court failed to examine any juror
24 who had been exposed to external influence,” and merely speculated “that other jurors must have
25 been exposed” without citing anything in the record to support such an assertion. Id. at 80. The
26 court of appeal also rejected Garcia’s argument that the trial court had a sua sponte duty to provide
27 further admonitions regarding its questioning of the four jurors and the presence of extra security,
1 There is no error in the state courts’ conclusions that might warrant habeas relief. As our
2 circuit has recognized, “the remedy prescribed by the Supreme Court” for potential juror bias is “a
3 hearing involving all interested parties to explore the issue of juror bias” where the defendant has
4 “the opportunity to prove actual bias.” Hedlund v. Ryan, 854 F.3d 557, 574 (9th Cir. 2017); see
5 also Smith v. Phillips, 455 U.S. 209, 215 (1982); Remmer v. United States, 347 U.S. 227, 229-30
6 (1954). “So long as the fact-finding process is objective and reasonably explores the issues
7 presented, the state trial judge’s finding based on that investigation are entitled to a presumption of
8 correctness.” Hedlund, 854 F.3d at 574 (quoting Dyer v. Calderon, 151 F.3d 970, 975 (9th Cir.
9 1998)).
10 On the record before the Court, it cannot be said that the trial court’s handling of these
11 issues was improper, particularly under the doubly deferential standard of review of such errors
12 under AEDPA. The trial court tackled the issue fairly and reasonably, and gave both sides ample
13 opportunity to express their views. The court of appeal reasonably concluded that any
14 presumption of prejudice on behalf of any juror had been rebutted by the trial judge’s examination
15 of all jurors known to be exposed to any external influence. Pettie, 16 Cal. App. 5th at 79-80.
16 There is no basis for concluding that the court of appeal’s conclusion is contrary to clearly
17 established federal law, and the state trial court’s findings are entitled to deference under 28
18 U.S.C. § 2254(e)(1). Habeas relief is denied on this claim.
19 V. FIREARM ENHANCEMENT
20 Garcia’s final claim is that he was not provided adequate notice of the firearm
21 enhancement that the prosecution argued to the jury in closing statements. Dkt. No. 1 at 20-25;
22 Dkt. No. 19-1 at 9-10. Garcia says that the criminal information charged him only with an
23 enhancement based on the use of a firearm by a principal, and that the prosecution’s oral
24 amendment of the enhancement to charge personal use of a firearm after the close of evidence
25 came too late to provide him adequate notice. Dkt. No. 1 at 20, 22.
26 The court of appeal rejected this claim because the record as a whole -- including the
27 earlier criminal complaints, evidence presented at the preliminary hearing, and the fact that Garcia
1 adequate notice of the personal use enhancement. Pettie, 16 Cal. App. 5th at 83-85. Garcia has
2 || not demonstrated otherwise.
3 In addition, as respondent correctly notes, the Supreme Court has not addressed the
4 || standard for reviewing a state court’s finding of adequate notice based on its evaluation of the
5 record as a whole. Dkt. No. 14-1 at 38-39. Indeed, the Supreme Court has expressly cautioned
6 || that, in the absence of such a decision, a federal court has “nothing against which it [can] assess,
7 and deem lacking, the notice afforded” a state court criminal defendant. Lopez v. Smith, 574 U.S.
8 1, 9 (2014) (per curiam).
9 Habeas relief is denied on this claim.
10 CONCLUSION
11 The petition is denied. A certificate of appealability is also denied. The federal rules
12 || governing habeas cases brought by state prisoners require a district court that issues an order
13 denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules
14 || Governing § 2254 Cases, Rule 11(a). A Judge many grant a certificate of appealability “only if the
15 applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C.
a 16 § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3).
3 17 “Where a district court has rejected the constitutional claims on the merits, the showing required to
18 satisfy § 2254(c) is straightforward: [t]he petition must demonstrate that reasonable jurists would
19 find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
20 McDaniel, 529 U.S. 473, 484 (2000). Garcia has not shown a certificate is warranted.
21 IT IS SO ORDERED.
22 || Dated: January 25, 2021
23
24
JAMES PONATO
25 United States District Judge
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