Garcia-Salbalsa v. Beard

Northern District of California, cand-4:2015-cv-01624

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND DENYING CERTIFICATE OF APPEALABILITY re {{1}} Petition for Writ of Habeas Corpus filed by Noel Garcia-Salbalsa. Signed by Judge Yvonne Gonzalez Rogers on 6/3/16.

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6 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 NOEL GARCIA-SALBALSA, Case No. 15-cv-01624-YGR (PR) Petitioner, ORDER DENYING PETITION FOR 5 WRIT OF HABEAS CORPUS; AND v. DENYING CERTIFICATE OF 6 APPEALABILITY 7 KIMBERLY A. SEIBEL, Warden,1 Respondent. 8 9 Petitioner Noel Garcia-Salbalsa, a state prisoner currently incarcerated at Chuckawalla 10 Valley State Prison, brings the instant pro se habeas action under 28 U.S.C. § 2254 to challenge 11 his 2012 conviction and 2013 sentence rendered in the Sonoma County Superior Court. Having 12 read and considered the papers filed in connection with this matter and being fully informed, the Northern District of California United States District Court 13 Court hereby DENIES the Petition for the reasons set forth below. 14 I. FACTUAL BACKGROUND 15 The California Court of Appeal described the relevant facts as follows: 16 On July 22, 2011, at approximately 1:30 p.m., Ramiro Chavez[FN 2], Conrrado Hernandez, and Jack Wilder were inside a residence on 17 Park Tree Lane in Sonoma having lunch. Wilder had brought a large quantity of marijuana to the residence that day from Lake 18 County. Suddenly, three or four Hispanic males stormed through the front door of the residence, each armed with a firearm. They 19 demanded the three victims lie on the floor, and told them they would be shot and killed if they did not comply. While on the floor, 20 the gunmen secured both Chavez and Hernandez by binding their wrists behind their back with zip ties. Wilder was bound with some 21 type of leather or string. While the three victims were on the floor, the gunmen took items from the individual victims such as cash, 22 keys, and a cell phone. They also took approximately 18 pounds of processed marijuana and $30,000 in cash from an unlocked safe in 23 the residence. 24 [FN 2: During these proceedings Ramiro Chavez was referred to as both Ramiro Chavez and Ramiro Ochoa. We will refer to him as 25 Chavez because he testified that is the name he regularly uses.] 26 After the gunmen left the residence, the victims were able to free 27 1 28 Kimberly A. Seibel, the current warden of the prison where Petitioner is incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 6 themselves. They ran out of the residence and observed an orange 1 Volkswagen (VW) Beetle fleeing the scene, traveling toward Santa Rosa. The victims called 911; and approximately one-half hour 2 later, the orange VW Beetle with paper Arizona license plates was stopped in Santa Rosa. The vehicle had two occupants—appellant 3 was in the front passenger seat and Richard Martin Marin-Casillas was in the driver's seat. Also located in the vehicle was 4 approximately 18 pounds of processed marijuana that Wilder testified was taken in the robbery, three loaded firearms, and zip ties 5 that matched the zip ties used at the crime scene. As of the time of trial, the $30,000 and the victims' personal property taken in the 6 robbery had not been recovered. 7 Shortly after the VW Beetle was stopped, the victims arrived together by private vehicle and an in-field identification was 8 conducted. All three victims were able to identify appellant as being in the residence and participating in the robbery. Hernandez 9 realized he had previously seen the driver of the VW Beetle. The man had been with Hernandez's cousin and had inquired about 10 marijuana and marijuana sales. A piece of paper was found inside the VW Beetle that had Hernandez's name and telephone number on 11 it. 12 At trial, appellant's defense was that the victims' testimony was not Northern District of California United States District Court credible. Instead of being a theft, all of the men were involved in a 13 marijuana sale that went awry. In rebuttal, the prosecutor argued, "Could it have been a drug deal gone bad? There's not really any 14 evidence, but. . . even if this is a drug deal gone bad, we still have a robbery." 15 People v. Garcia-Salbalsa, No. A137704, 2014 WL 5882534, *1-2 (Cal. Ct. App. Nov. 13, 2014) 16 (footnote in original). 17 II. PROCEDURAL BACKGROUND 18 On October 10, 2012, a Sonoma County jury found Petitioner guilty of robbery, false 19 imprisonment, and grand theft, and also found that he was armed with and used a firearm during 20 the commission of those offenses. CT 142-147; 2CT 305-308. 21 On January 18, 2013, Petitioner was sentenced to serve sixteen years in state prison. 2CT 22 411-412. 23 On January 24, 2013, Petitioner appealed the judgment to the California Court of Appeal. 24 2CT 413. On November 13, 2014, the state appellate court affirmed the judgment. Garcia- 25 Salbalsa, 2014 WL 5882534, *6; Resp't Ex. 4. 26 Thereafter, Petitioner filed a petition for review in the California Supreme Court, and 27 review was denied on January 28, 2015. Resp't Ex. 5. 28 2 6 1 On April 8, 2015, Petitioner filed the instant petition. Dkt. 1. 2 On May 29, 2015, this Court issued an Order to Show Cause. Dkt. 5. Respondent filed an 3 Answer. Dkt. 6. Although given the opportunity to do so, Petitioner did not file a Traverse. The 4 matter is fully briefed and ripe for adjudication. 5 III. LEGAL STANDARD 6 A federal court may entertain a habeas petition from a state prisoner "only on the ground 7 that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 8 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, 9 a district court may not grant a petition challenging a state conviction or sentence on the basis of a 10 claim that was reviewed on the merits in state court unless the state court's adjudication of the 11 claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, 12 clearly established Federal law, as determined by the Supreme Court of the United States; or Northern District of California United States District Court 13 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of 14 the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The first prong 15 applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v. 16 Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual 17 determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 18 A state court decision is "contrary to" Supreme Court authority, that is, falls under the first 19 clause of section 2254(d)(1), only if "the state court arrives at a conclusion opposite to that 20 reached by [the Supreme] Court on a question of law or if the state court decides a case differently 21 than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 22 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court 23 authority, falling under the second clause of section 2254(d)(1), if it correctly identifies the 24 governing legal principle from the Supreme Court's decisions but "unreasonably applies that 25 principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may 26 not issue the writ "simply because that court concludes in its independent judgment that the 27 relevant state-court decision applied clearly established federal law erroneously or incorrectly." 28 Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. 3 6 1 Id. at 409. 2 Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will 3 not be overturned on factual grounds unless objectively unreasonable in light of the evidence 4 presented in the state-court proceeding." See Miller-El, 537 U.S. at 340; see also Torres v. 5 Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, "a determination of a factual issue made 6 by a State court shall be presumed to be correct," and the petitioner "shall have the burden of 7 rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. 8 § 2254(e)(1). 9 Even if constitutional error is established, habeas relief is warranted only if the error had a 10 "substantial and injurious effect or influence in determining the jury's verdict." Penry v. Johnson, 11 532 U.S. 782, 795-96 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). 12 On federal habeas review, AEDPA "imposes a highly deferential standard for evaluating Northern District of California United States District Court 13 state-court rulings" and "demands that state-court decisions be given the benefit of the doubt." 14 Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). When there is no 15 reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to 16 the last reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991); Shackleford v. 17 Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Thus, a federal court will "look through" the 18 unexplained orders of the state courts rejecting a petitioner's claims and analyze whether the last 19 reasoned opinion of the state court unreasonably applied Supreme Court precedent. See Ylst, 501 20 U.S. at 804-06; LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). The last reasoned 21 decision in this case is the California Court of Appeal's unpublished disposition issued on 22 November 13, 2014. 23 IV. DISCUSSION 24 Petitioner asserts the following two claims: (1) the trial court committed prejudicial error 25 and violated his due process rights when it admitted evidence of unduly suggestive and unreliable 26 in-field identifications; and (2) the trial court abused its discretion by denying his motion to 27 disclose juror identifying information to enable the defense to investigate whether it had a viable 28 4 6 1 basis for a new trial motion based on jury misconduct. Dkt. 1 at 12-30.2 2 A. In-Field Identifications 3 Petitioner contends that the trial court erred by denying his motion to suppress the 4 evidence of the victims' in-field identifications made shortly after the robbery. Id. at 12. He 5 argues that the trial court violated his due process rights to a fair trial when it erroneously admitted 6 the unduly suggestive and unreliable in-field identifications and, therefore, his conviction must be 7 reversed. Id. at 12-24. 8 1. Background 9 The state appellate court gave the following background relating to this claim: 10 The jury heard evidence that all three robbery victims identified appellant as one of the men who committed the robbery during an 11 in-field show up which took place approximately an hour and a half after the robbery at the scene of the vehicle stop. Chavez testified 12 that during the robbery, he saw the robbers' faces "for a little bit." Northern District of California United States District Court The men did not wear masks. Two of the robbers were short, 13 approximately five feet six inches tall, and stocky. The third man was approximately five feet nine inches tall. The robbers were all 14 Latino, and they spoke in Spanish. The field show-up was performed when the faces of the gunmen were "pretty fresh" in 15 Chavez's mind. Chavez identified appellant as one of the robbers. 16 Before the field show up, Hernandez described three individuals by race, approximate height and weight, vehicle, and clothing. 17 Hernandez described one of the robbers as a Latino male wearing a red and white striped shirt. At the field show up, Hernandez 18 immediately recognized the man in the red and white striped shirt, who was later identified as appellant. 19 Wilder testified that the robbers were all Mexican. They spoke in 20 English and in Spanish. Wilder also recalled the stripes on the robbers' shirts. At the field show-up the events were still "very 21 fresh" in Wilder's mind—only 45 minutes to an hour had passed since the robbery. Wilder identified appellant as one of the robbers. 22 Garcia-Salbalsa, 2014 WL 5882534, *2. 23 In rejecting this claim, the state appellate court found that the victims' in-field 24 identifications were not impermissibly suggestive and stated as follows: 25 In deciding whether appellant was subjected to an impermissibly 26 suggestive and unreliable identification procedure, appellant bears 27 2 28 Page number citations refer to those assigned by the Court's electronic case management filing system and not those assigned by Petitioner. 5 6 the burden of establishing (1) that the procedure used was unduly 1 suggestive and unnecessary, and (2) if so, that the identification by the witness was unreliable under the totality of the circumstances, 2 taking into account such factors as the witness's opportunity to view the perpetrator at the time of the crime, the witness's degree of 3 attention, the accuracy of the witness's prior description of the suspects, the level of certainty the witness demonstrated at the show- 4 up, and the time between the crime and the show-up. (People v. Ochoa (1998) 19 Cal. 4th 353, 412 (Ochoa).) The defendant must 5 establish "unfairness as a demonstrable reality, not just speculation. [Citation.]" (People v. DeSantis (1992) 2 Cal. 4th 1198, 1222.) 6 "Where the defendant claims the pretrial identification was unnecessarily suggestive, he must show it gave rise to a very 7 substantial likelihood of irreparable misidentification. [Citations.]" (People v. Craig (1978) 86 Cal. App. 3d 905, 913 (Craig).) 8 While acknowledging that California courts have not found 9 individual show-ups inherently unfair, appellant urges this court to join a number of out-of-state jurisdictions choosing to abolish in- 10 field show-ups in light of psychological studies which conclude they are unduly suggestive and inherently unreliable. Despite these cases 11 from other jurisdictions, our Supreme Court has consistently held a single person show up "'is not inherently unfair,'" and consequently 12 need not, absent unusual circumstances, be excluded from the Northern District of California United States District Court presentation of evidence on due process grounds. (Ochoa, supra, 19 13 Cal. 4th at p. 413, quoting People v. Floyd (1970) 1 Cal. 3d 694, 714, overruled on another point in People v. Wheeler (1978) 22 Cal. 14 3d 258, 287, fn. 36; People v. Bauer (1969) 1 Cal. 3d 368, 374.) We are bound by the decisions of the California Supreme Court. (Auto 15 Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.) 16 Appellant also argues the show-up here was totally unnecessary because there was no compelling reason to conduct a show up as 17 opposed to waiting until a time when a lineup could be arranged. However, prompt identification of a suspect close to the time and 18 place of the offense serves the legitimate purpose of quickly ruling out innocent suspects while the events are fresh in the witness's 19 mind. (People v. Nguyen (1994) 23 Cal. App. 4th 32, 38-39; In re Carlos M. (1990) 220 Cal. App. 3d 372, 387.) Also, such 20 identifications are likely to be more accurate than a belated formal identification procedure. (People v. Martinez (1989) 207 Cal. App. 21 3d 1204, 1219; People v. Anthony (1970) 7 Cal. App. 3d 751, 764- 765 (Anthony).) Therefore, courts have consistently found the 22 interests of both the accused and law enforcement are best served by an immediate determination as to whether the correct person has 23 been apprehended. (Anthony, at p. 765.) 24 Appellant also asserts that the manner in which the show-up was conducted in this case was unduly suggestive. He complains that 25 multiple police officers and patrol cars were present during the show-up; one of those patrol cars was parked directly behind the 26 orange VW Beetle, which was the same make, model and color described by the victims as the getaway car. Appellant and his 27 companion were the sole Latino males in the vicinity. Additionally, before appellant was identified, he was taken out of the patrol car in 28 handcuffs. 6 6 1 But the factors highlighted by appellant, while they may be suggestive, have not been found by the courts to require suppression 2 of identification testimony. (See In re Richard W. (1979) 91 Cal. App. 3d 960, 969-970 [no due process violation when witness 3 identified suspect shortly after burglary while suspect was handcuffed and seated in the back of a patrol car]; People v. Savala 4 (1981) 116 Cal. App. 3d 41, 49 [no due process violation where showup procedures were "factually similar" to those in In re 5 Richard W.]; Craig, supra, 86 Cal. App. 3d at p. 914 [defendants were inside a police car and officers stood around the car]; Anthony, 6 supra, 7 Cal. App. 3d at p. 764 [officers drove defendant and his companion to the scene of the robbery in a marked police vehicle, 7 handcuffed, and asked the witness "'which was the one that came in'" and committed the robbery]; People v. Gomez (1976) 63 Cal. 8 App. 3d 328, 335 [defendant stood outside a patrol car, was handcuffed and accompanied by two officers]. 9 In the present case, appellant has pointed to only one factor which 10 could possibly make the in-field identification procedure unnecessarily suggestive. During the hearing on the suppression 11 motion, Hernandez testified the police told him before the in-field show-up that they planned on arresting the suspects because "they 12 found pistols and a large amount of marijuana in the car. . . ." It Northern District of California United States District Court undoubtedly would have been preferable if the police had not 13 discussed this incriminating evidence with Hernandez. However, this did not make Hernandez's subsequent identification of appellant 14 constitutionally infirm. Hernandez immediately recognized appellant as one of the robbers, not based upon anything the police 15 told him, but based upon the distinctive red and white striped shirt he was wearing, which Hernandez had described to the police before 16 he identified appellant at the in-field show-up. Even "[w]hen an eyewitness has been subjected to undue suggestion, the factfinder 17 must nonetheless be allowed to hear and evaluate his identification testimony unless the '"'totality of the circumstances'" suggests '"a 18 very substantial likelihood of irreparable misidentification."' [Citations.]' No such likelihood appears here." (People v. Arias 19 (1996) 13 Cal. 4th 92, 168.) 20 Additionally, appellant argues the identifications were unreliable because at different points in these proceedings the victims 21 misidentified or failed to recognize appellant. However these matters go to the weight not the admissibility of this evidence. 22 During closing argument, appellant's trial counsel discussed the eyewitness identifications and pointed out inconsistencies and 23 circumstances suggesting they were unreliable. Due process is not violated merely because identification evidence is not "the most 24 reliable" because "'"[c]ounsel can both cross-examine the identification witnesses and argue in summation as to factors 25 causing doubts as to the accuracy of the identification—including reference to. . . any suggestibility in the identification 26 procedure. . . ."' [Citation.]" (People v. Gordon (1990) 50 Cal. 3d 1223, 1243, overruled on another point in People v. Edwards (1991) 27 54 Cal. 3d 787, 835.) Short of a "'substantial likelihood of irreparable misidentification' . . . [identification] evidence is for the 28 jury to weigh. . . . Juries are not so susceptible that they cannot 7 6 measure intelligently the weight of identification testimony that has 1 some questionable feature." (Manson v. Brathwaite (1977) 432 U.S. 98, 116.) 2 In conclusion, on this record, appellant did not meet his burden of 3 demonstrating the show-up procedure was unduly suggestive and unnecessary or that it gave rise to a "very substantial likelihood of 4 irreparable misidentification. [Citation.]" (Craig, supra, 86 Cal. App. 3d at p. 913.) There was strong evidence corroborating the 5 victims' identifications which linked appellant to the crime committed on July 22, 2011. This evidence included appellant's 6 presence a short time after the crime in the orange VW Beetle that was described by the victims as the getaway car. Furthermore, the 7 officers found indicia of the robbery in the VW Beetle when appellant was apprehended, including approximately 18 pounds of 8 marijuana, several loaded firearms, and zip ties that were identical to those used to bind the victims. Appellant was also wearing the red 9 and white striped shirt Hernandez had previously described to the police as being worn by one of the gunmen. This corroborating 10 evidence gives independent reliability to the victims' identifications. (See Anthony, supra, 7 Cal. App. 3d at p. 765 [circumstantial 11 evidence defendant was robber was "overwhelming"].) As in People v. Sanders (1990) 51 Cal. 3d 471, "[a]lthough none of these 12 items points unerringly towards defendant's guilt, they constitute Northern District of California United States District Court links in the chain of evidence against him and thus provide some 13 corroboration of [the witness's] identification of defendant as the guilty party." (Id. at p. 506.) 14 Id. at *3-4. 15 2. Applicable Law 16 The United States Supreme Court has clearly established that an identification procedure 17 may be so prejudicial as to amount to a denial of due process. See Simmons v. United States, 390 18 U.S. 377, 383 (1968). A challenge to an identification procedure is reviewed under the totality of 19 the circumstances. Id. 20 "A conviction which rests on a mistaken identification is a gross miscarriage of justice." 21 Stovall v. Denno, 388 U.S. 293, 297 (1967) overruled on other grounds, Griffith v. Kentucky, 479 22 U.S. 314, 326 (1987) (discussing retroactivity of rules propounded by Supreme Court). 23 Procedures by which the defendant is identified as the perpetrator therefore must be examined to 24 assess whether they are unduly suggestive. "It is the likelihood of misidentification which violates 25 a defendant's right to due process." Neil v. Biggers, 409 U.S. 188, 198 (1972). Due process 26 protects against the admission of evidence derived from certain suggestive identification 27 procedures. See id. at 196; cf. Manson v. Brathwaite, 432 U.S. 98, 106 n.9 (1977) (standards are 28 8 6 1 not different for pretrial and in-trial identifications). Unnecessarily suggestive identification 2 procedures alone do not require exclusion of in-court identification testimony, however; 3 "reliability is the linchpin in determining the admissibility of identification testimony." See id. at 4 114. The factors to consider with regard to an alleged misidentification include: (1) the witness' 5 opportunity to view the defendant at the time of the incident; (2) the witness' degree of attention; 6 (3) the accuracy of the witness' prior description; (4) the level of certainty demonstrated by the 7 witness at the time of the identification procedure; and (5) the length of time between the incident 8 and the identification. See id. at 114. In weighing these factors, the court's ultimate goal is to 9 determine whether, under all the circumstances, there is a very substantial likelihood of irreparable 10 misidentification. Id. at 116. Short of that, the identification testimony is properly received and 11 any flaws in the procedures used are for the jury to weigh. Id. 12 To prevail on a habeas claim, the petitioner must show that the identification procedures Northern District of California United States District Court 13 used in the case were "'so unnecessarily suggestive and conducive to irreparable mistaken 14 identification that he was denied due process of law.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th 15 Cir.), cert. denied, 516 U.S. 1017 (1995) (quoting Stovall, 388 U.S. at 301-02). 16 3. Analysis 17 As explained above, the state appellate court found that the in-field identifications by 18 Chavez, Hernandez and Wilder were not impermissibly suggestive. Garcia-Salbalsa, 2014 WL 19 5882534, *3-4. The court acknowledged that Petitioner had pointed to only one factor which 20 could possibly make the in-field identification unduly suggestive—police had discussed 21 incriminating evidence with Hernandez before the in-field show-up. However, as indicated above, 22 the state appellate court concluded that even if the in-field identifications were unduly suggestive, 23 they were reliable under the totality of the circumstances. 24 The record shows that prior to the in-field show-up, police had the two suspects in 25 handcuffs in the back of separate patrol cars. 2CT 215-216; 12RT 1598. One of the patrol cars 26 was parked directly behind an orange VW Beetle. 2CT 216. An officer pulled one man out of the 27 back of one patrol car and turned him around to show his face to the three victims, who were 28 together in one car. 12RT 1598. Then another officer took the second man out of the back of the 9 6 1 other patrol car, and turned him around to show his face to the victims. 12RT 1598. 2 Chavez claims that during the robbery he saw the male robbers' faces "for a little bit"; they 3 did not wear masks. 12RT 1532-1533, 1536. Chavez testified that "two to five minutes" elapsed 4 from the time the robbers first came in to the time they all left. 1CT 34. Two of the robbers were 5 short and stocky, and the third man was approximately five feet nine inches tall. 12RT 1533. 6 Chavez claims that a fourth robber came in after he was on the ground. 12RT 1533. The robbers 7 were all Mexican or Hispanic, and they spoke in Spanish. 12RT 1533-1534. The in-field show-up 8 was performed an hour to an hour and a half after the robbery, when the faces of the gunmen were 9 "pretty fresh" in Chavez's mind. 12RT 1544-1546. At the in-field show-up, Chavez identified 10 Petitioner as one of the robbers, but he was not able to identify Marin-Casillas. 12RT 1545; 2CT 11 220-221. 12 Hernandez was able to observe three male unmasked robbers for "five seconds." 12RT Northern District of California United States District Court 13 1587-1588. They wore striped polo shirts. 12RT 1588. Two robbers' polo shirts were either 14 grey, black or blue with white stripes, and the third wore "a red and white shirt with white stripes." 15 12RT 1588. The men spoke in English and Spanish. 12RT 1588. Although all were Hispanic, 16 they had different complexions—one man was very dark while the other two were light skinned. 17 12RT 1588-1589. When Hernandez described the men for the police, he also provided their builds 18 and their approximate heights and weights. 12RT 1597-1598. At the preliminary hearing, 19 Hernandez testified that when he arrived at the location for the in-field show-up, officers told him 20 that they were going to arrest the suspects because "they found pistols and a large amount of 21 marijuana in the car. . . ." 1CT 86. At the in-field show-up, Hernandez was able to identify one 22 of the suspects as one of the robbers—the man in the red and white striped polo shirt, who was 23 later identified as Petitioner. 12RT 1598, 1600-1601, 1609. Hernandez said he was one hundred 24 percent sure of his identification. 12RT 1600. However, Hernandez was not as confident of his 25 identification of the second man. 12RT 1600. Hernandez thought the second suspect "could have 26 been the gentleman that put the gun in [his] face" during the robbery, but he was not one hundred 27 percent sure. 12RT 1600. Hernandez also recognized and identified Petitioner at the trial. 12RT 28 1600-1601. 10 6 1 Wilder testified that the robbery was still "very fresh" in his mind during the in-field show- 2 up because only forty-five minutes to an hour had passed. 12RT 1665. Wilder identified both 3 Petitioner and Marin-Casillas as two of the robbers. 12RT 1667. Wilder also recognized and 4 identified Petitioner at the trial. 12RT 1667. 5 Here, Petitioner has met his burden to show that the challenged procedure was 6 impermissibly suggestive upon examining the totality of the circumstances and taking the 7 following factors into consideration: (1) Petitioner and Marin-Casillas were seated in patrol cars 8 when the victims arrived prior to the in-field show-up; (2) they were displayed to the victims near 9 five patrol cars, one of which was parked directly behind the orange VW Beetle; (3) they were the 10 only Mexican men in the parking lot; and (4) Hernandez was told Petitioner was going to be 11 arrested because there were guns and marijuana in the orange VW Beetle. See Dkt. 1 at 18. Those 12 circumstances were suggestive—suggesting that Petitioner and Marin-Casillas were the ones Northern District of California United States District Court 13 police thought worth arresting and, in turn, suggesting they were ones whom police thought to be 14 the perpetrators. Thus, this Court disagrees with the state appellate court's finding that the in-field 15 show-up procedure was not suggestive. 16 However, the suggestiveness of the show-ups does not necessarily make them unreliable 17 because the Supreme Court has not made reliability and suggestiveness synonymous and requires 18 that they be viewed separately. See generally Neil, 409 U.S. at 198-99. 19 Petitioner further argues that the victims' identifications were unreliable. Dkt. 1 at 19. 20 Specifically, Petitioner argues the victims' ability and opportunity to observe the robbers were 21 "minimal" because the "robbery took all of five minutes." Id. Petitioner adds that the victims 22 were immediately ordered to get down on the ground "within second[s] of the men entering the 23 house" and each of them complied. Id. at 19-20. Petitioner claims the victims' "degree of 24 concentration or attention was questionable" because "they feared for their lives and their 25 observation of the perpetrators occurred during a stressful situation. Id. at 20. Finally, although 26 Petitioner acknowledges the short time between the robbery and the in-field identifications, he 27 argues that factor "pales in significance to the combined weight of the other factors, all of which 28 militate against a finding the witnesses' identification had a sufficient indicia of reliability." Id. at 11 6 1 22. This Court disagrees with Petitioner and finds that the state appellate court was reasonable in 2 finding that the reliability of the victims' identification was strong. As the state appellate court 3 explained, all three victims had ample opportunity to view the robbers during daylight 4 confrontations where the robbers did not wear masks. The victims were attentive and able to 5 provide a description of each of the robbers' clothes and physique (including their language and 6 race), and their descriptions of one of the robbers accurately matched Petitioner. All three victims 7 made their identifications within forty-five minutes to an hour after the robbery, and two testified 8 that the faces of the robbers were fresh in their minds. During the in-field show-up, all three 9 victims identified Petitioner as one of the robbers, but two of them were unable to identify Marin- 10 Casillas, which indicates their identifications were not automatic. Therefore, the state appellate 11 court was reasonable in finding that the victims' identification of Petitioner was reliable under the 12 totality of the circumstances. See Garcia-Salbalsa, 2014 WL 5882534, *4. Northern District of California United States District Court 13 Finally, the state appellate court reasonably found that there was "strong evidence 14 corroborating the victims' identifications which linked [Petitioner] to the crime committed on July 15 22, 2011," including: (1) Petitioner's presence in an orange VW Beetle matching the getaway car 16 right after the robbery; (2) incriminating evidence was found in that VW Beetle such as marijuana, 17 several loaded firearms, and zip ties identical to those used to bind the victims; and (3) Petitioner 18 was wearing a red and white striped shirt that matched the victim's description of one of the 19 robbers. Id. The state appellate court thus reasonably concluded that the aforementioned 20 corroborating evidence "gives independent reliability to the victims' identifications." Id. 21 Accordingly, the state appellate court's finding—that the admission of evidence that the 22 three victims identified Petitioner in an in-field show-up did not result in a due process violation— 23 was not contrary to or an unreasonable application of clearly established federal law. Therefore, 24 this claim is DENIED. 25 B. Access to Juror Identification Information 26 Petitioner contends that the trial court violated his rights to a fair trial and an impartial jury 27 when it denied his motion for access to personal juror identifying information, which he sought in 28 order to investigate potential juror misconduct. Dkt. 1 at 24-25. 12 6 1 The state appellate court rejected Petitioner's claim as follows: 2 After the jury returned its verdict, appellant filed a petition requesting the release of juror information. A supporting 3 declaration was submitted from appellant's trial counsel indicating that after the verdict had been rendered, the jury foreman told 4 counsel that he experimented with the zip ties provided to the jury as exhibits to see how easily they could be removed. Counsel 5 indicated that further inquiry into possible juror misconduct was needed to support a motion for a new trial. This request was 6 opposed by the prosecution, arguing "the juror conduct described in counsel's declaration is clearly within the scope of permissible jury 7 examination of the evidence and thereby the defense fails to establish a prima facie showing of good cause." The trial court 8 denied the motion because the defense failed to make a prima facie showing of good cause. The court found it was "merely supposition 9 at this point." 10 Code of Civil Procedure section 206, subdivision (g), provides that after the jury in a criminal case is discharged, a defendant may 11 petition the court for an order releasing information concerning the jurors' names, addresses, and telephone numbers for the purpose of 12 preparing a motion for new trial. That statute references Code of Northern District of California United States District Court Civil Procedure section 237, which provides, in part, that after 13 records containing criminal jurors' personal identification information are ordered sealed at the conclusion of trial, any person 14 may make a motion to obtain access to the sealed records, accompanied by a showing of good cause. (Code Civ. Proc., § 237, 15 subd. (b); see People v. Wilson (1996) 43 Cal. App. 4th 839, 852 (Wilson).) 16 To demonstrate good cause, a defendant must make a sufficient 17 showing "'to support a reasonable belief that jury misconduct occurred. . . .'" (People v. Jones (1998) 17 Cal. 4th 279, 317 18 (Jones).) The alleged misconduct must be "'of such a character as is likely to have influenced the verdict improperly' [citation]." 19 (People v. Jefflo (1998) 63 Cal. App. 4th 1314, 1322.) Good cause does not exist where the allegations of jury misconduct are 20 speculative (Wilson, supra, 43 Cal. App. 4th at p. 852), and speculative allegations may not be used as grounds to initiate an 21 unwarranted fishing expedition by parties hoping to uncover information to invalidate the jury's verdict. (People v. Rhodes 22 (1989) 212 Cal. App. 3d 541, 552.) A trial court's order denying a request for personal juror identifying information is reviewed for 23 abuse of discretion. (Jones, supra, 17 Cal. 4th at p. 317.) 24 Indisputably, it is misconduct for the jury to conduct its own investigation outside the courtroom, including experiments which 25 could be treated as evidence not presented at trial. (People v. Vigil (2011) 191 Cal. App. 4th 1474, 1483 (Vigil); People v. Castro 26 (1986) 184 Cal. App. 3d 849, 852-854 (Castro).) But, not every jury experiment constitutes misconduct. "Improper experiments are 27 those that allow the jury to discover new evidence by delving into areas not examined during trial. The distinction between proper and 28 improper jury conduct turns on this difference. The jury may weigh 13 6 and evaluate the evidence it has received. It is entitled to scrutinize 1 that evidence, subjecting it to careful consideration by testing all reasonable inferences. It may reexamine the evidence in a slightly 2 different context as long as that evaluation is within the '"scope and purview of the evidence."' [Citation.] What the jury cannot do is 3 conduct a new investigation going beyond the evidence admitted." (People v. Collins (2010) 49 Cal. 4th 175, 249.) 4 Accordingly, a jury has the right to examine and test the evidence 5 presented at trial in a form which might be construed as an "experiment" but which does not go beyond the scope of the 6 evidence. (See Castro, supra, 184 Cal .App. 3d at pp. 855.) The distinction between proper and improper experimentation by the 7 jury "usually turns on whether the juror's investigation stayed within the parameters of admitted evidence or created new evidence, which 8 the injured party had no opportunity to rebut or question." (Vigil, supra, 191 Cal. App. 4th at p. 1484.) 9 Here, the record contains no indication that the juror's experiment 10 with the zip ties interjected any information outside the record which would expand upon the evidence presented at trial. After all, 11 courts have repeatedly held that a litigant is not deprived of a fair trial where a jury conducts an experiment with trial exhibits which 12 merely tests the credibility of in-court testimony. For example, in Northern District of California United States District Court People v. Bogle (1995) 41 Cal. App. 4th 770, the defendant 13 identified the lock each of his keys would open, but there was no evidence any of the keys could open a safe that was at issue. (Id. at 14 p. 777.) During their deliberations, the jurors found that one of the keys opened the safe. (Ibid.) The Court of Appeal held this was not 15 an improper experiment because it fell within an "area of inquiry" discussed at trial, namely, "the extent of the defendant's access to 16 the contents of the safe or whether the defendant was a credible witness." (Id. at p. 779; see also People v. Baldine (2001) 94 Cal. 17 App. 4th 773, 778-780 [jury did not invade any new field by turning on a scanner to test the credibility of the defendant's assertion that it 18 did not work, even though the scanner was not tested during trial]; People v. Cooper (1979) 95 Cal. App. 3d 844, 852, 854 [jury did not 19 generate new evidence by reenacting the defendant's throwing of a plastic bag to evaluate the credibility of a police officer's testimony 20 because it was a reenactment of a demonstration performed during trial].) 21 Consequently, the record supports the trial court's conclusion that 22 the juror misconduct claimed by appellant was founded on speculation and surmise, which are inadequate grounds for releasing 23 confidential juror information. (Wilson, supra, 43 Cal. App. 4th at p. 852.) Under these circumstances, the trial court did not abuse its 24 discretion when it found an absence of good cause, and denied appellant's motion for disclosure of the jurors' personal identifying 25 information. 26 Garcia-Salbalsa, 2014 WL 5882534, *4-6. 27 Petitioner cites no United States Supreme Court authority recognizing a constitutional right 28 to have jury information unsealed, and this Court has found none. See e.g., Pablo v. Bitter, 2014 14 6 1 WL 1900627, *10 (N.D. Cal. 2014) affirmed by 608 Fed. Appx. 523 (9th Cir. 2015); Burpee v. 2 Hedgpeth, 2013 WL 6731042, *9 (N.D. Cal. 2013); White v. Knowles, 2011 WL 1196053, *5 3 (N.D. Cal. 2011). Further, no federal law, clearly established by the Supreme Court or otherwise, 4 requires a state court to permit post-trial access to jurors in a fishing expedition for misconduct. 5 See Grotemeyer v. Hickman, 393 F.3d 871, 881 (9th Cir. 2004), cert. denied, 546 U.S. 880 (2005) 6 (no constitutional violation in state court's denial of further factual development regarding jury 7 misconduct allegations). "[I]t is not the province of a federal habeas court to reexamine state- 8 court determinations on state-law questions. In conducting habeas review, a federal court is 9 limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United 10 States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citations omitted). Therefore, the trial 11 court's allegedly improper denial of Petitioner's motion for access to personal identifying 12 information pursuant to California Code of Civil Procedure § 237 is not a basis for federal habeas Northern District of California United States District Court 13 relief. See id.; see also Yang v. McDonald, 2012 WL 6738311, *18 (E.D. Cal. 2012) (finding state 14 courts' allegedly improper application of Cal. Code Civ. P. § 237 is not basis for federal habeas 15 relief). Nor can Petitioner transform a state law issue into a federal one merely by asserting a 16 violation of due process. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Regardless, 17 because Petitioner's showing on the new trial motion did not establish a prima facie case of 18 misconduct, the foreclosure of further investigation cannot support habeas relief. Petitioner's 19 claim of jury misconduct was wholly speculative at best. Defense counsel informed the court that 20 he was "not arguing whether actual misconduct occurred or not" during jury deliberations, because 21 he "[did]n't know just yet what actually occurred in deliberations." 17RT 2403-2404. The state 22 appellate court reasonably found that the trial court's conclusion that speculation and surmise are 23 inadequate grounds for releasing confidential juror information. Garcia-Salbalsa, 2014 WL 24 5882534, *6 (citing Wilson, 43 Cal. App. 4th at 852). 25 Nor was Petitioner denied his right to ineffective assistance of counsel, to present a motion 26 for new trial, to research the issue of juror misconduct, to investigate his case, or to present a 27 defense. See Dkt. 1 at 29-30. None of these aforementioned actions could or would have changed 28 permissible juror conduct into improper juror misconduct. 15 6 1 Because California Code of Civil Procedure § 237 did not infringe on Petitioner's 2 fundamental liberty interest in the right to an impartial jury, the state appellate court's rejection of 3 this claim was neither contrary to, nor an unreasonable application of established Supreme Court 4 precedent. Accordingly, this claim is DENIED. 5 V. CERTIFICATE OF APPEALABILITY 6 No certificate of appealability is warranted in this case. For the reasons set out above, 7 jurists of reason would not find this Court's denial of Petitioner's claims debatable or wrong. See 8 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate 9 of Appealability in this Court but may seek a certificate from the Ninth Circuit under Rule 22 of 10 the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 11 Cases. 12 VI. CONCLUSION Northern District of California United States District Court 13 For the reasons outlined above, the Court orders as follows: 14 1. All claims from the petition are DENIED, and a certificate of appealability will not 15 issue. Petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals. 16 2. The Clerk of the Court shall enter judgment, terminate any pending motions and 17 close the file. 18 IT IS SO ORDERED. 19 Dated: June 3, 2016 20 YVONNE GONZALEZ ROGERS 21 United States District Judge 22 23 24 25 26 27 28 16