Ponce v. Felker

Decision Date24 May 2010
Docket NumberNo. 08-56218.,08-56218.
PartiesLuis Phillip PONCE, Petitioner-Appellant,v.T. FELKER, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

606 F.3d 596

Luis Phillip PONCE, Petitioner-Appellant,
v.
T. FELKER, Warden, Respondent-Appellee.

No. 08-56218.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Feb. 2, 2010.
Filed May 24, 2010.


606 F.3d 597
Zandra L. Lopez, Law Office of Zandra L. Lopez, San Diego, CA, for the petitioner-appellant.

Stephanie C. Brenan, Deputy Attorney General, Office of the Attorney General of California, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California, Otis D. Wright, District Judge, Presiding. D.C. No. CV-07-02705-ODW-RZ.
Before: B. FLETCHER, HARRY PREGERSON, and SUSAN P. GRABER, Circuit Judges.

GRABER, Circuit Judge:

Petitioner Luis Phillip Ponce was convicted in California state court of burglary and murder. In this appeal, he challenges the district court's denial of his habeas petition, arguing that the admission of certain testimony violated his rights under the Confrontation Clause. The California Court of Appeal affirmed the convictions, reasoning that the testimony fell within the “forfeiture by wrongdoing” exception to a defendant's right to confront the witnesses against him. The Supreme Court later ruled, in Giles v. California, --- U.S. ----, 128 S.Ct. 2678, 2693, 171 L.Ed.2d 488 (2008), that the forfeiture exception applies only if a defendant specifically intended to prevent the witness from testifying. Thus, Giles would have controlled Petitioner's case had Giles been decided while his convictions were on direct appeal. However, in holding that forfeiture requires proof of a defendant's intent to prevent testimony, Giles established a new rule that does not apply retroactively. At the time of Petitioner's appeal, it was neither contrary to, nor an unreasonable application of, clearly established federal law for the California appellate courts to rule that the forfeiture exception did not require proof of an intent to make the witness unavailable. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In September 1998, Petitioner broke up with his girlfriend, Eva Gooch, and got back together with a former girlfriend, Christina Valencia. After Petitioner dumped Gooch, she threatened to tell the police about Petitioner's drug-dealing activities. She also threatened to report Valencia to the welfare authorities for living with a drug dealer, told Valencia that Petitioner had declared that he did not love Valencia, and told Valencia that Gooch had

606 F.3d 598
a video of herself and Petitioner having sex. Gooch's threats and taunts angered Petitioner.

At about 2 a.m. on December 6, 1998, Petitioner and a companion, Alex Carballo, encountered a former friend of Petitioner's at a gas station. Petitioner told his former friend that he had to “go kill some bitch.” Gooch was bartending during the early morning hours of December 6, but her employer sent her home at about 2:30 a.m. because she complained of feeling ill. The following morning, Gooch failed to show up at her sister's house, as planned, to bake cookies with her niece. Gooch's sister called her repeatedly, but Gooch did not answer her phone.

Later that day, Petitioner and Carballo were in a car accident. A bystander who witnessed the accident testified that Petitioner had an injured hand wrapped in a white cloth covered in stains that looked like blood stains. The bystander asked Petitioner if he had hurt himself in the accident; Petitioner responded that he had injured his hand before the car accident. The bystander also noticed that Petitioner was wearing jeans that bore stains similar to those on the bandage on his hand.

On December 9, 1998, Gooch's body was discovered in her apartment. She had been stabbed approximately 30 times, and a broken knife blade was embedded in her throat. An uncapped bleach bottle lay next to her body. DNA testing of blood found on the bleach bottle and on the kitchen counter of the apartment showed that the blood contained a mixture of Gooch's and Petitioner's blood. DNA testing also showed that saliva on two cigarette butts in the apartment had come from Carballo.

The State of California tried Petitioner for first-degree burglary and first-degree murder. His first trial resulted in a mistrial on the burglary count, and the California Court of Appeal reversed his murder conviction because of an erroneous jury instruction. At Petitioner's second trial, the prosecution introduced the evidence summarized above, and the court also permitted two witnesses to testify regarding Gooch's statements to them. 1

Vikki Gibson, a private security guard in Gooch's apartment building, testified that she went to Gooch's apartment about two weeks before the murder because she heard loud banging noises. Gooch came to the door with a hammer in her hand and explained to Gibson that she was nailing boards over her balcony window to keep “Louie” out.

In addition, Bruce Richards, the apartment leasing agent, testified that Gooch called him on December 5 and asked him to arrange for the security guards to patrol her floor more frequently. Richards testified that Gooch said that she had received a phone call from Petitioner and that Petitioner had threatened, “I'm gonna kill you, bitch.”

The jury convicted Petitioner of both burglary and murder. The court sentenced Petitioner to 25 years to life with the possibility of parole for the murder and four years for burglary. The California Court of Appeal affirmed Petitioner's convictions on January 25, 2006. The court held that the testimony by Gibson and Richards regarding Gooch's fears was proper because Petitioner had forfeited his Confrontation Clause rights by killing Gooch. The court also held that admission of the testimony, if erroneous, was harmless

606 F.3d 599
error because there was substantial evidence against Petitioner aside from the challenged testimony. The California Supreme Court summarily denied Petitioner's petition for review on April 12, 2006.

Petitioner filed a petition in federal court for a writ of habeas corpus, arguing, among other things, that the admission of the testimony regarding Gooch's statements violated his rights under the Confrontation Clause. On June 18, 2008, the district court denied the petition, concluding that the state court's decision to affirm Petitioner's conviction was neither contrary to, nor an unreasonable application of, clearly established federal law. The district court also ruled that the disputed statements were not testimonial, an issue not reached by the California Court of Appeal. On June 25, 2008, the Supreme Court decided Giles, 128 S.Ct. at 2688, in which the Court held that the forfeiture by wrongdoing exception applies only to those cases in which a defendant secured the unavailability of a witness with the intent to prevent the testimony. Contending that the record does not show that he had such an intent, Petitioner now appeals the district court's denial of his habeas petition.

STANDARDS OF REVIEW

We review de novo the district court's denial of a petition for a writ of habeas corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004). Because Petitioner filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we apply AEDPA's standards. Accordingly, habeas relief is warranted only if the state court's decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, or rested on an unreasonable determination of facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). “ ‘[C]learly established Federal law’ ... refers to the holdings, as opposed to the dicta, of [the Supreme Court]'s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

DISCUSSION

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The “witnesses” to which the Confrontation Clause refers include not only the witnesses testifying in court, but also certain out-of-court declarants. Crawford v. Washington, 541 U.S. 36, 50-51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). For many years, the Supreme Court approved of the admission of unconfronted out-of-court statements if they bore adequate “ ‘indicia of reliability,’ ” and such indicia were presumed if “a firmly rooted hearsay exception” applied. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). However, in Crawford, the Court rejected the Ohio v. Roberts approach. “The Roberts test ... replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one.” Crawford, 541 U.S. at 62, 124 S.Ct. 1354. Accordingly, hearsay exception or not, the Confrontation Clause generally requires an opportunity for confrontation. But this right may be forfeited by a defendant's wrongdoing. Id.

Here, Gibson and Richards testified against Petitioner by recounting Gooch's statements about her fear of Petitioner and his threat to her. We assume, without deciding, that the statements were testimonial.

606 F.3d 600
2 Gooch, the dead victim, was not available for cross-examination. The California Court of Appeal held that Petitioner had forfeited his right to confront Gooch by murdering her.

The Supreme Court had previously recognized the doctrine of forfeiture by wrongdoing, but the Court had not defined the precise parameters of the doctrine before the California Court of Appeal affirmed Petitioner's convictions and the California Supreme Court denied his petition for review in 2006. Approximately two years later, in Giles, the Supreme Court held that the forfeiture exception did not apply to every instance in which a defendant's wrongdoing prevented a witness from testifying....

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