Hernandez v. Small

• Decision Date: 07 March 2002
• Docket Number: No. 00-56286.,00-56286.
• Citation: 282 F.3d 1132
• Parties: Joe HERNANDEZ, III, Petitioner-Appellant, v. Larry SMALL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.3d 1132

Joe HERNANDEZ, III, Petitioner-Appellant, v. Larry SMALL, Warden, Respondent-Appellee.

No. 00-56286.

United States Court of Appeals, Ninth Circuit.

Submitted February 6, 2002^*.

Filed March 7, 2002.

COPYRIGHT MATERIAL OMITTED

Judith Rochlin, Los Angeles, CA, for the petitioner-appellant.

Bill Lockyer, Attorney General; Robert R. Anderson, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General; Susan D. Martynec, Supervising Deputy Attorney General; Robert D. Breton, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California A. Andrew Hauk, Senior District Judge, Presiding. D.C. No. CV-98-09036-AAH(BQR).

Before: ARCHER^**, O'SCANNLAIN, and SILVERMAN, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

In this habeas case, we must decide whether the admission of testimony at a criminal trial in state court was contrary to or involved an unreasonable application of the Supreme Court's Confrontation Clause jurisprudence.

I

A

The underlying convictions in this case arose from two separate incidents that took place on August 10, 1993 in El Monte, California.¹ At approximately 7:00 p.m. that evening, Joe Hernandez and his subsequent codefendant Robert Cota, both members of the El Monte Flores gang, met at the home of fellow gang-member Arthur Lopez. Hernandez was armed with a gun. Hernandez and Cota left Lopez's home riding Lopez's bicycle; Cota was pedaling the bicycle with Hernandez sitting on the handlebars. The pair bicycled to Medina Court, a shopping center which is considered to be in the territory of the El Monte Hayes gang — a Flores gang rival. There the pair spotted Raphael Torres, a Hayes gang member. Torres, upon seeing Hernandez and Cota, shouted his Hayes gang affiliation. Unimpressed, Hernandez responded by getting off the bicycle, brandishing his gun, and shooting Torres several times. Torres, who was not armed, died as a result of the multiple gunshot wounds.

Hernandez and Cota then rode to Lopez's home, where they returned his bicycle. The pair then retrieved Cota's bicycle from Cota's home, and once again rode off. At approximately 9:00 p.m., while riding Cota's bicycle near Crawford's Market in El Monte, with Cota again pedaling the bicycle and Hernandez sitting on the handlebars, the two men stopped a car. Alberto Perez Gonzalez, the car's owner, was driving; Julio Cesar Silva was a passenger. Hernandez got off the bicycle, approached Silva on the passenger side of the car, and asked from where he hailed. Silva, who was not a gang member, responded that he was from Rosemead. Hernandez put a gun to Silva's head, and ordered him to get out of the car and kneel on the ground, placing his hands behind his head. Hernandez told Silva that he was going to die, then fulfilled his prophecy, shooting Silva in the head. Silva died as a result of the gunshot wound.

Meanwhile, Cota approached Gonzalez on the driver's side, and ordered him out of the car. After Silva was shot, Gonzalez charged Hernandez and struggled with him for the gun. Cota joined in the struggle and kicked Gonzalez a number of times in the stomach. During the struggle the gun discharged, striking Gonzalez in the chest. Hernandez then shot Gonzalez twice more, striking him in the shoulder and back. Leaving Gonzalez for dead, Hernandez and Cota drove Gonzalez's car away from the scene; they later abandoned it. Gonzalez, however, survived.

After their arrest several months later both Hernandez and Cota made statements to the police. Hernandez admitted his involvement in the shootings but stated that he had been under the influence of drugs at the time, and was not thinking clearly. He told police that the shooting at Crawford's Market occurred because he and Cota had nearly been hit by Gonzalez's car. According to Hernandez, Gonzalez and Silva had then "started to rush" him and Cota, and Silva had "cuss[ed him] out" in Spanish; Silva and Hernandez started fighting, and Hernandez shot him. Cota also spoke to the police. Among other things, Cota acknowledged that the reason he, Cota, had ridden to Crawford's Market the night of the murders was to steal a car.

B

Hernandez was tried in the California Superior Court of Los Angeles County for various violations of California criminal law. Both Hernandez and Cota invoked their Fifth Amendment rights not to testify. Accordingly, they were tried before separate juries. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 (1965). At Hernandez's trial the prosecutor sought to introduce, through the testimony of Police Detective Castillo, several of Cota's self-inculpatory extrajudicial statements, which were sanitized by excising all references to Hernandez. Hernandez objected to the admission of one of these statements, indicating that Cota's intent in riding his bicycle to Crawford's Market was to steal a car. Hernandez claimed that admission of this statement would violate the California evidentiary rules, and also his constitutional right to confront witnesses. He noted that he would have no opportunity to cross-examine Cota, who was unavailable to testify because he had invoked his Fifth Amendment rights.

The state trial court concluded that the statement did indeed fall within California's hearsay exception for declarations against penal interests,² and accordingly, that its admission would not violate the Confrontation Clause. Relying on Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), that court concluded that admission of the testimony was proper because declarations against penal interest are a firmly rooted exception to the hearsay rule. Accordingly, the prosecutor was allowed to ask Castillo, "Did [Cota] tell you why he rode his bike to Crawford's Market?", to which Castillo replied, "To take a car." Defense counsel cross-examined Castillo to confirm that Cota's statement solely concerned his own intent and implicated no one other than Cota.

Hernandez was ultimately convicted on four counts, including the second degree murder of Raphael Torres; the first degree murder of Julio Cesar Silva; the attempted murder of Alberto Perez Gonzalez; and the second degree robbery of Silva and Gonzalez. The penalty phase proceeding and a retrial thereof both resulted in mistrials. On September 27, 1995, Hernandez was sentenced to state prison for a term of life without parole, plus eight years, with additional consecutive terms of 23 years to life and life plus eight years.

Hernandez appealed his conviction to the California Court of Appeal. He contended inter alia, that the admission of Cota's statement violated his rights under the Confrontation Clause. The Court of Appeal was unpersuaded; it affirmed Hernandez's conviction in an unpublished opinion on March 10, 1997.

Hernandez next filed a petition for review to the California Supreme Court, seeking review of his Confrontation Clause claim; the Court denied the petition without comment or citation on June 10, 1997. Accordingly, Hernandez's conviction became final on September 8, 1997. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.1999). Hernandez also filed a habeas petition in the California Supreme Court, raising the same allegations he made in the present petition; the Supreme Court denied that petition without comment or citation.

Hernandez then filed a pro se petition for a writ of habeas corpus in the United States District Court for the Central District of California. Following the Report and Recommendation of the Magistrate Judge, the court denied the petition. Hernandez appealed. A motions panel of this court assigned him counsel, and granted a certificate of appealability limited to the following issues: (1) whether admission of Cota's statement against interest violated his Confrontation Clause rights, and (2) if so, whether the error had a substantial and injurious effect on the jury's verdict.

II

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. am. VI.³ In its 1980 decision in Ohio v. Roberts, the Supreme Court set forth the requirements for admission of a hearsay statement in a criminal trial when the declarant is unavailable, consistent with the requirements of the Confrontation Clause. 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The Court explained that such a statement "is admissible only if it bears adequate `indicia of reliability.'" Id. at 66, 100 S.Ct. 2531. Adequate reliability, the Court continued, can be demonstrated in one of two ways. First, "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Id. Second, if the evidence does not fall within a firmly rooted exception, it may be admitted if there is a sufficient "showing of particularized guarantees of trustworthiness."⁴ Id.

In its ruling in this case, the California Court of Appeal relied on the first of these methods for demonstrating reliability. Applying People v. Wilson, 17 Cal.App.4th 271, 277, 21 Cal.Rptr.2d 420 (1993), it reasoned that "[w]hen testimony, although hearsay, has `sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied,'" and concluded that "[t]he declaration against interest exception to the hearsay rule is such a firmly rooted exception." Because the statement fit within the exception, the court decided that its admission was proper, and upheld the admission.

A

Hernandez contends that the California Court of Appeal's determination that the admission of Cota's statement did not violate his Confrontation Clause rights was erroneous. He relies on a line of United States...