Plascencia v. Alameida

• Decision Date: 03 November 2006
• Docket Number: No. 05-56458.,05-56458.
• Parties: Mara PLASCENCIA, Petitioner-Appellant, v. Edward S. ALAMEIDA, Jr., Director, California Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

467 F.3d 1190

Mara PLASCENCIA, Petitioner-Appellant, v. Edward S. ALAMEIDA, Jr., Director, California Department of Corrections, Respondent-Appellee.

No. 05-56458.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2006.

Filed November 3, 2006.

Allen R. Bloom, San Diego, CA, for the petitioner-appellant.

Marilyn L. George, Deputy Attorney General, San Diego, CA, for the respondent-appellee.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CV-03-02128-IEG/WM.

Before STEPHEN REINHARDT and STEPHEN S. TROTT, Circuit Judges, and JAMES L. ROBART,^* District Judge.

OPINION

TROTT, Circuit Judge.

Petitioner Mara Plascencia appeals the district court's denial of her petition for a writ of habeas corpus. Plascencia was convicted by a jury in state court of the murder of Teresa Silva and sentenced to a prison term of fifty years to life. Plascencia claims the trial court (1) violated her Sixth Amendment right to confront adverse witnesses when it restricted cross-examination of three witnesses, (2) erred in admitting impermissible evidence, and (3) imposed an unconstitutional sentence enhancement. In addition to these claims, Plascencia avers her trial counsel was ineffective for failing to investigate the criminal background of two jailhouse informants and for failing to object to the admission of certain evidence. We disagree and affirm the district court's denial of Plascencia's habeas petition.

I

In July 1998, the victim Teresa Silva and the father of her children, Manuel Galdamez, became involved in a dispute with a person whose car was blocking the couple's garage. The person was related to Plascencia. Later that day, Plascencia and her cousin, "Yeni" Haro, went to Silva and Galdamez's apartment, angry that their relative had been "disrespected." Yeni, Silva, and Galdamez lived in the same complex. Plascencia and Yeni challenged Silva to a fight, and the three fought just outside Silva's residence — complete with hair pulling and fisticuffs. Later that day, in yet another battle, Silva and her sisters Joanna and Lisa fought with Plascencia, Yeni, and Yeni's mother. Silva was armed with a baseball bat which she used against Yeni's mother, knocking her unconscious.

Some three months later, Silva and Galdamez were home with their three children, Jesse, Ruben, and Maria. At approximately 8:00 p.m., Galdamez and Ruben went to the garage. Jesse and Maria remained in the apartment with Silva. While Galdamez and Ruben were gone, someone knocked on the door of the apartment. Jesse, who was ten years old at the time, answered the door. The person at the door told Jesse to get his mother and waited at the door while Jesse complied. When Silva approached the door, followed by Jesse's sister, the visitor shot her twice at close range. The shooter then fled.

Galdamez heard the gun shots from the garage and ran back to the apartment. When his father returned, an astute Jesse called 911 to report the shooting. During that call Jesse did not name the assailant but described her as a female having blonde hair with dark streaks. Galdamez saw Silva and asked Jesse who shot her. According to Galdamez, Jesse answered, "Mara [Plascencia] . . . [t]hat girl that's always with [Yeni]." When the police arrived, Officer Kathleen Bergman interviewed Galdamez. Galdamez described to Officer Bergman the July incidents involving Silva, Mara Plascencia, and Yeni Haro and then stated, "Yeni did it." Galdamez made no mention at that time of Jesse's statement implicating Plascencia.

Several police officers escorted Jesse and his siblings out of their apartment to the apartment of a neighbor, Christal Robertson. At Robertson's apartment, Jesse described the shooting to Officer Rizzo, who asked Jesse whether he knew who the shooter was and whether the shooter was someone in the apartment complex. Jesse responded, "Yeni." Officer Rizzo showed Jesse a picture of Yeni and asked him whether the person in the picture shot his mother; Jesse answered, "No, that's Yeni." Shortly thereafter, another officer, Officer Gill, interviewed Jesse. Jesse initially told Officer Gill that he was unsure who shot his mother, recounting instead that Silva was in a fight with Yeni several months before. Later in the interview, however, Jesse told Gill that Plascencia, not Yeni, shot his mother.

Detective Gloria Boyce also interviewed Jesse. Jesse told Detective Boyce that "Mara" or "Maraca" shot his mother. Jesse said he recognized Mara Plascencia from the altercations in July and from her association with Yeni. Detective Boyce then showed Jesse a picture of Yeni, and Jesse said, "This is Yeni, and she is not the one who shot my mom." Later that evening, Detective Boyce again interviewed Jesse and showed him a picture of Plascencia, whom Jesse identified as the shooter.

Silva was pronounced dead at 8:40 p.m. that night from a gunshot wound to her chest. A single bullet, which could have been fired from either a .357 or .38 caliber handgun, was recovered from Silva's kitchen.

At approximately 1:30 a.m. the next morning, the police went to Plascencia's apartment, which was located just minutes from the apartment in which Silva was killed. Plascencia was not at home, but her stepfather told police she had been home at approximately 7:00 p.m. or 7:30 p.m., he did not know what time she left, and when he saw her she had auburn colored hair. Plascencia's boyfriend, whom the police also contacted, attempted unsuccessfully to page her numerous times.

At 6:00 p.m. on the day after Silva's murder, Plascencia turned herself in to the San Diego Police Department. She was detained at the Las Colinas Women's Facility and placed in a cell with three other inmates, including Jeannie Johnson and Debra Moore. Subsequently, in separate tape recorded interviews, Johnson and Moore claimed that while in jail, Plascencia had confessed to both of them at the same time to killing Silva. According to Johnson and Moore, who were clearly angling for a deal on their own cases, the killing occurred because Silva had "messed with her family." There were, however, suspicious discrepancies in their stories, the kind of contextual discrepancies that suggest fabrication. Johnson claimed that Plascencia made the confession in the morning at about 8:00 or 9:00 a.m. Moore said that Plascencia made the confession after lunch in the early afternoon. Moore stated that Plascencia was laughing when she demonstrated the shooting by holding up an imaginary gun in her left hand. Moore also told police that Plascencia used a .357 caliber handgun, drove away from the scene, and that Plascencia acknowledged being under the influence of a drug called "roaches." Johnson said, however, that Plascencia was not laughing but rocking and banging her head against the wall when she made the confession. Johnson said nothing about the caliber of gun or of Plascencia's getaway. Both Johnson and Moore stated that Plascencia was acting strangely while in custody.

Moore, who in the past had "snitched" in exchange for assistance, requested help from the district attorney's office to obtain a parole transfer. Although she stated to the interviewing officer that she did not want them to feel like "I'm asking for a deal or nothing, which I'm not," Moore did say that she wanted to see about "getting the case against her dropped." Moore even tried to get an assurance from the investigating officer that her story was the one the prosecution was going to use.

After giving her original statement to the investigating officer, Moore later called him and said that Plascencia had also told her the gun she used was hidden in the bedroom or the basement of Plascencia's mother's house. Moore told the officer that she had initially withheld evidence about the gun in the house. She told a second officer that she wanted her case dropped. She informed the second officer that she would not testify against Plascencia and then go to prison with her. Moore said that if she did, the moment she got to prison she was going to get a "snitch jacket." Moore indicated also that Johnson, because of her "snitching," was going to have a lot of trouble when she went to prison.

On November 20, 1998, Plascencia was charged by information in San Diego Superior Court. The Information charged Plascencia with murdering Silva in violation of California Penal Code § 187(a). The Information alleged also that Plascencia had used a firearm during the murder and inflicted great bodily injury or death in violation of California Penal Code §§ 12022.5(a)(1) and 12022.53(d).

At a preliminary hearing, the prosecution called Jeannie Johnson and Debra Moore to the stand to testify about Plascencia's supposed confession. Johnson recounted a statement by Plascencia in which Plascencia supposedly admitted shooting the victim twice after asking a little boy to call his mother to the door. Moore, however, took a different tack. Consistent with her threat that she would not testify and then go to jail with Plascencia, Moore claimed a lapse of memory when she took the stand. Nonetheless, Plascencia was held to answer, and the case proceeded to trial.

At trial, the inconsistent statements and identification Jesse gave to the investigating officers at the time of the incident were admitted into evidence, over objection, through the investigating officers. The officers further testified as to the inconsistency between Jesse's initial statement to his father, Galdamez — that Plascencia was the shooter — and Galdamez's subsequent statement to Officer Bergman that "Yeni did it."

After the investigating officers finished testifying, the prosecution called on Galdamez to testify to the jury. On cross-examination defense counsel asked Galdamez who he told the investigating officer "did this." The prosecution objected and the court sustained the objection. However,...