(HC) Adams v. Lynch

• Court: District Court, E.D. California
• Decided: July 18, 2023
• Docket: 2:21-cv-01733
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCOS MANSON ADAMS, Case No. 2:21-cv-01733-DJC-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS 13 v. ECF No. 1 14 JEFF LYNCH, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent. 16 17 Petitioner Anthony Marcos Manson Adams seeks a writ of habeas corpus under 28 U.S.C. 18 § 2254. ECF No. 1. He was convicted of shooting his girlfriend, Latesha Doe. His claims center 19 on the admissibility of statements that Latesha gave to a responding officer and her roommate 20 identifying him as the shooter. Respondent has answered the petition, ECF No. 16, and petitioner 21 has declined to file a traverse. For the reasons stated below, I recommend that the petition be 22 denied. 23 24 25 26 27 28 1 Background 2 I have reviewed the background summary provided by the state appellate court on direct 3 appeal. It appears to be correct, and I reproduce it here: 4 On the night of August 30, 2015, Dora Lopez was driving down Stockton Boulevard in Sacramento with her boyfriend, David 5 Rodriguez, when a car backed out of an apartment complex and stopped in the middle of the street. Ms. Lopez brought her vehicle 6 to a stop. A man and a woman came out into the street arguing. Ms. Lopez testified they were about 10 feet away; Mr. Rodriguez 7 put the distance at 20 feet. The man yelled at a person in the car, which drove off. Ms. Lopez did not move because the man and 8 woman were in the street. The man called the woman a name and she hit him in the face several times. The man drew a gun tucked 9 into his belt, pointed it at the woman’s head, and fired. The woman was facing the man, holding her hands in front of her like a shield. 10 It appeared to Ms. Lopez and Mr. Rodriguez that the man shot the woman in the face. The woman screamed and fell to the ground. 11 The man ran back into the apartment complex. 12 Ms. Lopez drove off and called 911—at 9:51 p.m. according to the transcript of the call—and reported that a man had shot a woman on 13 Stockton Boulevard. She told the 911 operator that the man and woman were “a black couple,” the man was a “[b]lack guy with 14 dreads,” he was in his late 20’s or early 30’s, he was five feet eight inches or five feet nine inches tall, and he was stocky. The operator 15 asked, “Which way did he go?” Ms. Lopez said, “I think he ... ran back into the apartments.” 16 Mr. Rodriguez testified at trial that the man’s dreadlocks were a 17 little past his shoulders. Mr. Rodriguez said that man was in his mid-30’s or late 20’s and five feet ten inches or maybe six feet tall. 18 During the incident, the man and woman were facing each other, sideways to Mr. Rodriguez. Mr. Rodriguez testified that the man 19 had multiple tattoos covering his arm, but it was too dark to make them out. The entire incident, from when the car pulled out in front 20 of Ms. Lopez and Mr. Rodriguez to when they drove away, lasted about a minute. 21 Latesha telephoned her roommate, Keela Cole, and asked her to 22 come to the apartment complex on Stockton Avenue. Latesha was yelling on the phone and, when Ms. Cole arrived at the apartment 23 complex five or 10 minutes later, Latesha was in front crying. Ms. Cole testified that Latesha said she had been shot and “He” shot 24 her. Latesha did not give a name. A few minutes later, an ambulance arrived. 25 Ms. Cole had seen defendant before together with Latesha “[a]s a 26 couple,” because defendant “was her boyfriend.” On cross- examination, Ms. Cole testified that Latesha had several boyfriends 27 in August 2015. Defendant and Latesha were “on their way” to not seeing each other anymore. They were more together in July 2015. 28 1 Sheriff’s Deputy Anthony Archuletta was dispatched to the apartment complex on a report that a man had shot a woman. He 2 arrived at about 10:00 p.m. Deputy Archuletta contacted Latesha, who was on a gurney in an ambulance. Latesha “was screaming in 3 pain, just really distraught. Hysterical.” She was not able to answer a question coherently. Deputy Archuletta was trying to 4 determine what was happening at that point. He was not taking a formal statement; he was trying to figure out if a crime had 5 occurred. Initially, the deputy was only able to get her name. When Latesha calmed down a bit, he asked her what happened and 6 she said, “My boyfriend Marcos shot me.” 7 Deputy Archuletta testified he had seen defendant before. In July 2015 defendant was in a car and had to release the car to someone. 8 He released the car to Latesha. They shared a hug and a kiss as defendant was leaving. 9 The paramedic in the ambulance did not believe that Latesha had 10 been shot. The wound did not look like a gunshot wound to Deputy Archuletta. Latesha was taken to the hospital to verify that she had 11 not been shot. At the hospital, a doctor informed Deputy Archuletta that Latesha had been shot, as confirmed by a CT scan showing a 12 small caliber bullet in her elbow. 13 On September 15, 2015, a detective interviewed Ms. Lopez and Mr. Rodriguez. The detective had prepared a photographic lineup of six 14 photographs showing defendant plus five individuals with similar physical features. The photograph in the lower left-hand corner in 15 the number four position was of defendant. 16 The detective showed the lineup separately to Ms. Lopez and Mr. Rodriguez. Ms. Lopez initialed the photograph in the number four 17 position as the person who fired the firearm. She stated, “If anything it might have been him. But I’m not sure. ‘Cause his hair 18 wasn’t short like that or anything.”1 Ms. Lopez indicated that she did not think the rest of the photos were the shooter. 19 Mr. Rodriguez initialed the photographs in the two and four 20 positions.2 He was not 100 percent positive that these photos were of the shooter. He testified he could not rule out those two, while 21 he was sure the others were not the shooter. 22 At trial, Ms. Lopez confirmed that she had initialed the photographic lineup identifying the person she believed was 23 responsible for the shooting. She also confirmed that the person she described in the 911 call had long dreadlocks to his shoulders. 24 She testified, however, she did not see the person who fired the shot sitting in the courtroom. The court directed Ms. Lopez to look at 25 defendant, who was wearing a white dress shirt and tie and seated at 26 1 [Footnote 3 in original text] The photograph in position four of the photographic lineup 27 showed an individual with dreadlocks to the shoulder. Photos in some of the other positions showed individuals with shorter dreadlocks. 28 2[Footnote 4 in original text] These individuals had dreadlocks to their shoulders. 1 the counsel table. Ms. Lopez stated she did not think that was the person. When the court asked what features about that person made 2 her think he was not the shooter, Ms. Lopez stated, “Well, I mean it was three years ago. I just remember he had dreads and he was a 3 little more stocky.” Mr. Lopez testified that she picked the photograph in the lineup, because “[h]e looked more husky because 4 from what I remember he was like a kind of a husky dude and he had dreads that were just like to the shoulder.” 5 Mr. Rodriguez also stated at trial that he did not see the person who 6 fired the shot in the courtroom. He confirmed that he had identified the person responsible for the shooting in the photographic lineup. 7 He initialed the lineup in two places because the shooter was one of those two people and none of the others. The court asked Mr. 8 Rodriguez if one of the photos he saw in the lineup was of “the gentleman in the white shirt and tie in court here today.” Mr. 9 Rodriguez stated, “[A]ll of them had dreadlocks as far as I remember that’s the main description I remember. So I do not see 10 dreadlocks on him unless you show me the photo again maybe I can see him without the dreadlocks maybe I’d be different.” Mr. 11 Rodriguez stated he would not be able to recognize the shooter if he saw him again, because dreadlocks were the main feature of the 12 photographic lineup. 13 The prosecutor placed his fingers over the dreadlocks in the photograph in the four position to assist Mr. Rodriguez’s 14 recollection, and he testified that defendant at the counsel table “pretty much looked like him without the dreads.” Between the 15 two photographs Mr. Rodriguez initialed, he testified the one on the bottom left was more likely the person responsible for the shooting. 16 At trial, the detective who prepared the lineup also could not 17 identify defendant in the courtroom as the person in position four, “because his appearance has changed such [sic] drastically.” 18 The detective testified that he had difficulty contacting Latesha. 19 When he met her, he observed a healed wound on her left arm next to the elbow. The detective showed her the photographic lineup. 20 She appeared apprehensive and reluctant and abruptly left the interview. 21 Latesha appeared at trial. In proceedings outside the presence of 22 the jury, Latesha stated to the court that she was reluctant to testify, understood that she had no right to refuse to testify, would not 23 explain how she came to be shot even if the court held her in contempt and put her in jail for refusing to testify, stated she could 24 not remember what happened, and confirmed that she was refusing to testify. Latesha was in custody on an unrelated matter when she 25 appeared at trial and was represented by counsel. With the agreement of the prosecutor and defense counsel, the court so 26 informed the jury when Latesha was on the witness stand, while admonishing jurors not to speculate why she was in custody. 27 With the jury present, the prosecutor asked Latesha three questions: 28 (1) did she know the defendant, (2) was she shot on August 30, 1 2015, and (3) was there any question that he could ask that she would answer. Latesha did not respond. At the trial judge’s 2 request, Latesha raised her left arm showing a mark above the elbow. 3 The prosecution called David Cropp, who testified to his 4 background working with families and children exposed to domestic violence, including formerly as a Sacramento police 5 officer. Mr. Cropp testified he had qualified 18 times as an expert in the area of domestic violence and victim and witness 6 participation. Mr. Cropp testified that it was very common in the criminal justice system for victims of domestic violence to refuse to 7 cooperate with the prosecution or to change or recant their previous statements. The reasons for this behavior included reluctance to be 8 adverse to a person who may be a co-parent or “somebody they may love.” A victim also may fear retaliation, stalking, threats, 9 being alone, being unable to support the children, and family or social judgments. Mr. Cropp had seen in the literature estimates 10 that up to 80 percent of domestic abuse victims refuse to cooperate with law enforcement. Mr. Cropp confirmed that he knew nothing 11 about this case, had not read any police reports on it, and did not know defendant. 12 13 ECF No. 11-14 at 2-6. 14 Discussion 15 I. Legal Standards 16 A federal court may grant habeas relief when a petitioner shows that his custody violates 17 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 18 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty 19 Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See Harrington v. Richter, 20 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court examines the decision of the 21 last state court that issued a reasoned opinion on petitioner’s habeas claims. See Wilson v. Sellers, 22 138 S. Ct. 1188, 1192 (2018); Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003) (“Because, 23 here, neither the court of appeal nor the California Supreme Court issued a reasoned opinion on 24 the merits of this claim, we look to the trial court’s decision.”); McCormick v. Adams, 621 F.3d 25 970, 975-76 (9th Cir. 2010) (reviewing the decision of the court of appeal, which was last 26 reasoned decision of a state court); Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) (“Because 27 the California Supreme Court denied review of Gill’s habeas petition without comment, we look 28 through the unexplained California Supreme Court decision to the last reasoned decision . . . as 1 the basis for the state court’s judgment.”) (internal quotations omitted). 2 Under AEDPA, a petitioner may obtain relief on federal habeas claims that have been 3 “adjudicated on the merits in state court proceedings” only if the state court’s adjudication 4 resulted in a decision (1) “contrary to, or involved an unreasonable application of, clearly 5 established Federal law, as determined by the Supreme Court of the United States” or (2) “based 6 on an unreasonable determination of the facts in light of the evidence presented in the State court 7 proceeding.” 28 U.S.C. § 2254(d). 8 II. Analysis 9 A. Confrontation Clause Claim 10 Petitioner argues that his girlfriend’s statement to Deputy Archuletta that “[m]y boyfriend 11 Marcos shot me” violated his rights under the Sixth and Fourteenth Amendments because it was 12 testimonial. The California Court of Appeal rejected this claim. 13 Defendant contends that admitting Latesha’s statement to Deputy Archuletta—“My boyfriend Marcos shot me”—violated his right to 14 confront witnesses under the Sixth and Fourteenth Amendments, because the statement was “testimonial.” 15 We review this contention de novo. (People v. Nelson (2010) 190 16 Cal. App. 4th 1453, 1466 (Nelson).) 17 The applicable law begins with Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), in which the United States 18 Supreme Court held that out-of-court “[t]estimonial statements of witnesses absent from trial [can be] admitted only where the 19 declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Id. at p. 59.) Latesha did not 20 testify at trial and defendant had no opportunity to cross-examine her.3 Accordingly, her statement to Deputy Archuletta is 21 22 3[Footnote 5 in original text] We reject the Attorney General’s assertion that Latesha was available for cross-examination because she appeared at court, even though she refused to 23 answer any of the prosecutor’s questions. (People v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th 335, 413 [“the Crawford rule does not apply when the declarant testifies and is thus subject 24 to cross-examination”].) As the Attorney General concedes, a witness who refuses to answer any questions denies a defendant a meaningful opportunity for cross-examination. (Douglas v. 25 Alabama (1965) 380 U.S. 415, 419-20 [13 L.Ed.2d 934]; People v. Giron-Chamul (2016) 245 Cal. App. 4th 932, 965-966; People v. Perez (2016) 243 Cal. App. 4th 863, 886; People v. 26 Murillo (2014) 231 Cal. App. 4th 448, 456; People v. Rios (1985) 163 Cal. App. 3d 852, 864- 65.) The Attorney General suggests that a defendant must question a recalcitrant witness who 27 has refused to answer the prosecutor’s questions or forfeit a confrontation clause challenge on appeal. However, proceedings conducted outside the presence of the jury confirmed that Latesha 28 would refuse to answer any questions put by the prosecutor or defense counsel. As noted, 1 admissible only if it was nontestimonial. (Davis v. Washington (2006) 547 U.S. 813, 821 [165 L.Ed.2d 224] (Davis).) 2 In Davis, the Supreme Court explained that a statement is 3 nontestimonial “when made in the course of police interrogation under circumstances objectively indicating that the primary purpose 4 of the interrogation is to enable police assistance to meet an ongoing emergency.” (Davis, supra, 547 U.S. at p. 822.) A 5 statement is testimonial “when the circumstances objectively indicate that there is no such ongoing emergency, and that the 6 primary purpose of the interrogation is to establish or prove past events potentially relevant to criminal prosecution. [Fn. omitted.]” 7 (Ibid.) In the first of two companion cases in Davis, (case No. 05- 5224) statements made by a domestic violence victim to a 911 8 operator identifying the defendant Davis as her assailant, and describing what he was doing during the call, were determined to 9 be nontestimonial. (Id. at pp. 817-818, 828-829.) 10 In the companion domestic violence case, Hammon v. Indiana (case No. 05-5705) (Hammon) the Supreme Court found that there was 11 no ongoing emergency where the victim appeared calm when encountered by police on the front porch of her home, but when 12 questioned outside the defendant Hammon’s presence said that he had thrown her down on broken glass and punched her in the chest. 13 The court held these statements were made for the purpose of investigating a past crime, rather than to assist police in intervening 14 in an emergency, and thus were barred by the confrontation clause. (Davis, supra, 547 U.S. at pp. 819-821, 829-830.) 15 In People v. Cage (2007) 40 Cal. 4th 965 (Cage), the California 16 Supreme Court applied Crawford, Davis, and Hammon in a case where the defendant was convicted of aggravated assault for 17 slashing her son’s face with a glass shard. (Id. at pp. 970, 972; People v. Kerley (2018) 23 Cal. App. 5th 513, 548-549.) At the 18 hospital, a police officer interviewed the victim in the emergency department and asked what had happened. (Cage, supra, at pp. 19 971-972.) The victim said that, during an argument, his mother pushed him and he fell on a glass-topped coffee table, breaking it. 20 (Id. at p. 972.) His grandmother held him down and his mother slashed his face with a piece of the broken glass. (Ibid.) After he 21 was released from the hospital, the victim gave a more detailed statement in a tape-recorded interview at the police station. (Id. at 22 pp. 972-973.) The victim did not testify at trial. (Id. at p. 973.) The Supreme Court held that both statements to police were 23 testimonial. (Id. at pp. 984-985.) “The incident leading to the injury had been over for more than an hour. The assailant was far away. 24 The victim was in no danger of further assault by his mother.” (Kerley, supra, 23 Cal. App. 5th at pp. 548-549; Cage, supra, 40 25 Cal. 4th at p. 985; compare People v. Saracoglu (2007) 152 Cal. App. 4th 1584, 1597-98 (Saracoglu) [the purpose of statements by 26 the victim, who fled to police station, that her husband had

27 Latesha did not respond to the prosecutor’s catch-all question whether there was any question she would answer. 28 1 assaulted and threatened to kill her if she went to police, were to gain police protection in an ongoing emergency].) The victim’s 2 statements to the surgeon in the emergency department about how the injury occurred were nontestimonial, because the surgeon’s 3 question was for the purpose of diagnosis and treatment, not to gather evidence for use at trial. (Kerley, supra, 23 Cal. App. 5th at 4 p. 549; Cage, supra, 40 Cal. 4th at p. 986.) 5 Cage is inapposite here because the testimonial statements to police in that case were made after the victim was taken to the hospital. 6 (People v. Brenn (2007) 152 Cal. App. 4th 166, 176 (Brenn).) Cage is nonetheless instructive because the Supreme Court 7 emphasized that “the proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a 8 criminal trial. Instead, we are concerned with statements, made with some formality, which, viewed objectively, are for the primary 9 purpose of establishing or proving facts for possible use in a criminal trial.” (Cage, supra, 40 Cal. 4th at p. 984, fn. 14; Brenn, 10 supra, 152 Cal. App. 4th at p. 177.) 11 In Michigan v. Bryant (2011) 562 U.S. 344 [179 L.Ed.2d 93] (Bryant), police officers questioned a man found in a gas station 12 parking lot bleeding from a gunshot wound. (Id. at p. 349.) The court held that the man’s statements were not testimonial because 13 an ongoing emergency had not been resolved, the scene was not secured, the shooter was at large, and the victim was in great 14 distress (the wound ultimately proved fatal), which suggested his answers were not given for testimonial purposes. (Id. at p. 375.) 15 The court noted that the questions were asked in a public area before emergency medical personnel arrived and were the type of 16 questions (e.g., what happened?) that police need to ask to assess the threat to their own safety and danger to the victim and the 17 public. (Id. at pp. 375-376.) 18 The distinguishing principle in Davis, Hammon, and Bryant is the primary purpose of the out-of-court statements. (People v. Sanchez 19 (2016) 63 Cal. 4th 665, 689.) “Testimonial statements are those made primarily to memorialize facts relating to past criminal 20 activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an 21 ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.” (Ibid.) 22 The court in Davis noted that the exigencies of assessing a domestic 23 violence incident “may often mean that ‘initial inquiries’ produce nontestimonial statements.” (Davis, supra, 547 U.S. at p. 832; 24 Bryant, supra, 562 U.S. at p. 377; see also Brenn, supra, 152 Cal. App. 4th at p. 178 [“‘Preliminary questions asked at the scene of a 25 crime do not rise to the level of an “interrogation.” Such unstructured interaction between officer and witness bears no 26 resemblance to a formal or informal police inquiry that is required for a police “interrogation” as that term is used in Crawford. 27 [Citations]’”]; People v. Corella (2004) 122 Cal. App. 4th 461, 469.) 28 1 Based on Bryant, the California Supreme Court in People v. Blacksher (2011) 52 Cal. 4th 769, 813-815, articulated six factors to 2 consider in determining whether a hearsay statement is testimonial or nontestimonial, which the court in People v. Chism (2014) 58 3 Cal. 4th 1266 (Chism), summarized as follows: “(1) an objective evaluation of the circumstances of the encounter and the statements 4 and actions of the individuals involved in the encounter; (2) whether the statements were made during an ongoing 5 emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for 6 use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the 7 public; (4) the declarant's medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing 8 emergency to obtaining evidence for trial; and (6) the informality of the statement and the circumstances under which it was obtained.” 9 (Id. at p. 1289.) 10 Applying these principles in Chism, the Supreme Court determined that the statements of a witness to a police officer describing a 11 shooting at a liquor store were nontestimonial. (Chism, supra, 58 Cal. 4th at p. 1289.) The officer was the first on the scene, the 12 encounter took place outside the liquor store where the shooting had recently occurred, the witness appeared very nervous and 13 shaken up, and the officer reasonably believed that an armed suspect was at large and posed a threat to police officers and the 14 public. (Ibid.) 15 In this instance, the trial court held an Evidence Code section 402 hearing to determine the admissibility of Latesha’s statement. 16 Deputy Archuletta testified consistent with his trial testimony but with some additional details. We review this testimony, as well, to 17 apply the factors enumerated in Chism. 18 On arriving at the scene, Deputy Archuletta was doing a quick canvas of the area and potential witnesses until another deputy 19 informed him over the radio that the victim had been located in an ambulance. Two other deputies who arrived at about the same time 20 as Deputy Archuletta had already spoken to Latesha. The information Deputy Archuletta had up to that point was that some 21 people driving by had witnessed “a female on the ground and a male possibly shooter.” Deputy Archuletta did not know who the 22 suspect or the victim was. 23 When Deputy Archuletta spoke to Latesha, she was in so much pain and screaming so loudly that she could not focus on his questions. 24 She was screaming “it hurts, it hurts, it hurts.” Deputy Archuletta was confused because the paramedic said Latesha had not been 25 shot. The deputy saw a small hole in Latesha’s elbow almost like she fell on a pebble. She wasn’t actively bleeding.4 26 27 4 [Footnote 6 in original text] When another deputy found shell casings, Deputy 28 Archuletta decided to go to the hospital for a follow-up. 1 Deputy Archuletta “asked her what happened. And that’s when she had made the statement her boyfriend Marcos shot her.” Deputy 2 Archuletta testified, “At that time we didn’t—we had no idea what had happened. If she had been shot, if she’d not been shot. I was 3 under the impression she had not since fire personnel was there and I already assessed her and [the paramedic] said no she hadn’t been 4 shot. So at this point we’re kind of confused about what actually occurred or what's going on.” 5 Asked by the court to reconstruct the conversation, Deputy 6 Archuletta testified: “So initially I was trying to get a base of information. You know name, date of birth, address, telephone 7 number. So just from the initial contact just getting her name was difficult. I said, you know, what’s your name. And she would, you 8 know, try to tell me her first name but it was very, you know—she was crying and sobbing so hard it was hard to understand what she 9 was saying. [¶] And then as I continued to question her just about the basic information I was able to get, you know, her—just her 10 basic quick information. And then I said, can you tell me what happened. And you could tell she was becoming frustrated with the 11 pain and sobbing and she just yelled out, ‘My boyfriend, Marcos, shot me.’ And that was all she really verbalized at that point.” 12 Deputy Archuletta did not ask Latesha for details of the incident 13 because the ambulance was about to leave to take her to the hospital. He testified that the whole interaction in the ambulance 14 took “maybe two minutes.” 15 The court ruled that “the officer at the time he asked that question was . . . attempt[ing] to resolve in his mind whether he was there 16 investigating a crime or an accident or something else [because he] had been told by the paramedic that [he] didn't think she was even a 17 gunshot victim. [¶] So asking the question what happened is not calculated to produce testimonial evidence and based on the 18 evidence in front of me the response was non-testimonial.” 19 Applying the factors summarized in Chism, we conclude that Latesha’s statement to Deputy Archuletta was not testimonial and 20 its admission did not violate defendant’s Sixth Amendment rights. 21 First, viewed objectively, Deputy Archuletta was attempting to ascertain at the scene what had occurred after receiving a report that 22 a man had shot a woman, including whether a crime had actually occurred, given that the paramedic in the ambulance did not think 23 that Latesha had been shot. Latesha was hysterical, crying and complaining of great pain, indicating that she had been shot, but 24 also making it difficult for the deputy to obtain basic information. When Deputy Archuletta asked what happened, the primary 25 purpose of the question was to find out exactly that, in a confusing situation. The purpose of Latesha’s answer was to tell him the 26 cause of the pain she was plainly experiencing. Neither Deputy Archuletta nor Latesha sought to establish past events for use at 27 trial. 28 1 Second, as noted, the statement was obtained for a purpose other than for the prosecution to use at trial, i.e., to find out what 2 happened and whether a crime had occurred. But there was also an ongoing emergency: an unidentified person was armed with a gun 3 and his location was unknown. In Bryant, the Supreme Court reasoned that “what happened?” is the exact question that police 4 officers would pose to a victim at the scene to assess the situation, the threat to their safety, and possible danger to the victim and the 5 public. (Bryant, supra, 562 U.S. at p. 375.) Such information is solicited to enable police to meet an ongoing emergency. (Id. at p. 6 376.) 7 Third, there was an ongoing threat to first responders and the public. Ms. Lopez told the 911 operator that defendant had run 8 back into the apartment complex after shooting a woman in the street. Although Latesha was no longer in any apparent danger, the 9 situation remained fluid as emergency personnel arrived on scene and there was still a possibility that the shooter still posed a threat. 10 (Nelson, supra, 190 Cal. App. 4th at p. 1467.) 11 Fourth, notwithstanding the skepticism of a paramedic in the ambulance, Latesha had been shot minutes before and was in such 12 severe pain and distress that Deputy Archuletta had trouble obtaining and understanding her answers to basic questions. 13 Fifth, in a two-minute interaction, there was no time for Deputy 14 Archuletta to shift from addressing the immediate situation to obtaining evidence for trial. 15 Sixth, not only did Deputy Archuletta testify that the circumstances 16 were informal, Latesha was in an ambulance complaining of severe pain from a gunshot wound. A reasonable person would not 17 construe her statement “as a solemn declaration that could lead to criminal charges if it was deliberately fabricated.” (Nelson, supra, 18 190 Cal. App. 4th at p. 1467.) 19 The circumstances here consisted of a two-minute exchange between a sheriff’s deputy and a possible gunshot victim in great 20 pain and distress in the back of an ambulance about a possible shooting by an as-yet unidentified shooter who had fled the scene 21 minutes before. The deputy’s question was directed at no more than finding out what had occurred, which led to information on the 22 basic question of identity. There was no violation of the confrontation clause in admitting Latesha’s statement that it was 23 defendant who shot her. 24 ECF No. 11-14 at 6-12. The California Supreme Court issued a summary denial. ECF No. 11- 25 16. 26 The California court of appeal’s determination was not an unreasonable application of 27 clearly established federal law. It bears re-emphasizing that, pursuant to the Supreme Court’s 28 holding in Davis v. Washington, “[s]tatements are nontestimonial when made in the course of 1 police interrogation under circumstances objectively indicating that the primary purpose of the 2 interrogation is to enable police assistance to meet an ongoing emergency.” 547 U.S. 813, 822 3 (2006). As the state court noted, Deputy Archuletta’s interrogation of Latesha was for the 4 purpose of resolving the ongoing law enforcement emergency: she was screaming in pain and her 5 assailant was still at large. At a minimum, the state court’s holding, correct or not, was not 6 unreasonable, and that forecloses relief under AEDPA. See Williams v. Taylor, 529 U.S. 362, 7 411 (2000) (“[A] federal habeas court may not issue the writ simply because that court concludes 8 in its independent judgment that the relevant state-court decision applied clearly established 9 federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”). 10 B. Spontaneous Statement Claim 11 Next, petitioner alleges that his constitutional rights were violated when the trial 12 court ruled that Latesha’s statement was admissible as a spontaneous declaration. The California 13 court of appeal rejected this claim as well, reasoning that the trial court did not misapply state 14 law. ECF No. 11-14 at 12-14. The California Supreme Court did so as well in its summary 15 denial of the petition for review. ECF No. 11-16. As an initial matter, no federal habeas relief 16 may lie for an error of state law, and I am not empowered to second guess the state court’s 17 finding that the statement as a spontaneous declaration. See Henry v. Kernan, 197 F.3d 1021, 18 1031 (9th Cir. 1999) (“A federal court, of course, cannot review questions of state evidence 19 law.”). And, as noted above, I have already determined that the state court’s finding that the 20 statement was non-testimonial was not unreasonable. This claim should also be denied. 21 C. Latesha’s Identification of Defendant to Keela Cole 22 Latesha phoned her roommate, Keela Cole, immediately after the incident. As noted 23 above, Cole arrived at the scene ten minutes later, and Latesha told her that “he” shot her. Cole 24 later testified at trial as to Latesha’s utterance. Petitioner argues that the trial court erred in 25 admitting Cole’s testimony as a spontaneous statement. The California court of appeal rejected 26 this claim in a reasoned decision. 27 Defendant asserts that the trial court improperly admitted Ms. Cole’s testimony that Latesha said that “He” shot her as a 28 spontaneous statement. 1 The trial reasoned: “It’s within minutes—about 10 minutes of being shot. She was under the stress of excitement. I’m considering as 2 well the description by the officer of Latesha’s condition when he saw her and the fact she was being transported in an ambulance 3 moments after she must have made this statement to Keela.” 4 Defendant incorporates the arguments regarding reflection and deliberation that he offered in support of the contention that 5 Latesha’s statement to Deputy Archuletta was improperly admitted under Evidence Code section 1240. If anything, however, 6 Latesha’s statement to Ms. Cole qualifies even more as a spontaneous statement than Latesha’s answer to Deputy 7 Archuletta’s question. The statement to Ms. Cole is closer to the time Latesha was shot. (Merriman, supra, 60 Cal. 4th at p. 66.) 8 Ms. Cole described Latesha on the telephone asking her to come to the apartment complex as “yelling.” Latesha was crying and upset 9 when Ms. Cole arrived. (Ibid. [exception applied where victim was “upset and angry” when she described choking incident to friend].) 10 Ms. Cole did not testify that she questioned Latesha but rather that Latesha told her that “she got shot” and “He” shot her. (Id. at p. 64 11 [“whether the declarant blurted out the statement or made it in response to questioning” is a factor in admitting testimony as a 12 spontaneous statement].) 13 The trial court did not abuse its discretion in admitting Ms. Cole’s testimony that Latesha said “He” shot her as a spontaneous 14 statement. 15 16 ECF No. 11-14 at 14-15. As noted above, the California Supreme Court issued a summary 17 denial. ECF No. 11-16. 18 I cannot second-guess questions of state law. And, under Supreme Court precedent, 19 Latesha’s statement to Cole was not testimonial. In Crawford v. Washington, the Supreme Court 20 described the contours of testimonial statements and offered examples: 21 [E]x parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony 22 that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used 23 prosecutorially, . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, 24 prior testimony, or confessions, . . . [and] statements that were made under circumstances which would lead an objective witness 25 reasonably to believe that the statement would be available for use at a later trial[.] 26 27 541 U.S. 36, 51-52 (2004) (citations omitted). Latesha’s statement to Cole, made almost 28 immediately after the incident, while she was still in pain, and before she was transported to the 1 hospital does not remotely approach any of the categories laid out in Crawford, and petitioner’s 2 rights under the Confrontation Clause were not violated by its admission. 3 D. Prosecutorial Misconduct and Ineffective Assistance of Counsel 4 Finally, petitioner argues that the prosecutor committed misconduct when, as a follow up 5 to Cole’s testimony, they asked “[f]rom your understanding when she told you that she was shot 6 by her boyfriend you understood her to mean by [petitioner]?” Cole responded in the affirmative. 7 He also argues that his counsel rendered ineffective assistance in failing to object to the question 8 or request an admonition. The court of appeal denied this claim in a reasoned decision: 9 Defendant contends that the prosecutor committed misconduct by following up on Ms. Cole’s testimony with this question: “From 10 your understanding when she told you that she was shot by her boyfriend you understood her to mean by [defendant]?” Ms. Cole 11 responded, “Yeah.” 12 Defendant’s claim is that the prosecutor improperly assumed facts not in evidence by referring to the shooter as Latesha's “boyfriend,” 13 when Ms. Cole testified that Latesha identified him only as “He” and did not name him. 14 To be sure, the prosecutor’s question did assume facts not in 15 evidence. But any misconduct was de minimis. (Cf. People v. Osband (1996) 13 Cal. 4th 622, 695.) After testifying that Latesha 16 said “He” shot her, Ms. Cole testified that she had seen Latesha and defendant “[a]s a couple,” because defendant “was her boyfriend.” 17 The jury could draw a reasonable inference that, when Latesha referred to “He,” Ms. Cole would know Latesha was referring to 18 defendant as her boyfriend. 19 Defendant nonetheless argues that the admission of Ms. Cole’s apparent confirmation that Latesha was shot by her boyfriend, 20 combined with “Latesha’s erroneously admitted statement to Deputy Archuletta,” violated due process by convincing the jury 21 that defendant was the shooter. We have concluded that Latesha’s statement to Deputy Archuletta was properly admitted. In light of 22 that statement, in which the victim specifically identified defendant by name as the shooter, defendant could not have suffered any 23 significant prejudice from the prosecutor eliciting Ms. Cole’s testimony purportedly confirming that Latesha said her “boyfriend” 24 shot her. 25 Further, defendant concedes that, at trial, his counsel “did not object on the basis of misconduct or request an admonition” regarding the 26 prosecutor’s question or Ms. Cole’s answer. Defendant argues that, if defense counsel forfeited the issue in failing to object, “then 27 defense counsel necessarily rendered ineffective assistance of counsel.” Defendant is correct that this issue was forfeited on 28 appeal due to counsel’s failure to object. (People v. Fuiava (2012) 1 53 Cal. 4th 622, 687; People v. Collins (2010) 49 Cal. 4th 175, 198.) But he has failed to establish ineffective assistance of 2 counsel. 3 Under the United States and California Constitutions, a criminal defendant has a right to effective assistance of counsel. (U.S. 4 Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 686 [80 L.Ed.2d 674] 5 (Strickland); People v. Ledesma (1987) 43 Cal. 3d 171, 215 (Ledesma).) To establish ineffective assistance of counsel, 6 defendant must show both that (1) his trial counsel’s performance was deficient in that it fell below an objective standard of 7 reasonableness, and (2) counsel’s performance prejudiced him such that it is reasonably probable defendant would have obtained a 8 better result but for counsel’s deficiencies. (Strickland, supra, at pp. 689-694; Ledesma, supra, at pp. 216-218.) 9 Unless defendant establishes to the contrary, we presume trial 10 counsel’s performance is within the wide range of professional competence and counsel’s action or inaction can be explained as 11 matter of sound strategy. (People v. Centeno (2014) 60 Cal. 4th 659, 674-675 (Centeno).) Where, as here, the record on appeal 12 sheds no light on why trial counsel failed to act in the manner defendant now challenges, defendant must show there was no 13 conceivable tactical purpose for counsel’s act or omission. (Ibid.; People v. Cunningham (2001) 25 Cal. 4th 926, 1003 14 (Cunningham).) This is particularly so where the claimed deficiency is failure to object, because the decision to object or not 15 is inherently tactical, and failure to object rarely establishes ineffective assistance of counsel. (People v. Salcido (2008) 44 Cal. 16 4th 93, 172.) 17 Defendant has failed to prove that this is the rare circumstance where defense counsel could have no tactical reason for failing to 18 object. To the contrary, if defense counsel had objected, the prosecutor could have questioned Ms. Cole further about Latesha’s 19 relationship with defendant, which led Ms. Cole to believe that by saying “He” Latesha meant a boyfriend and that boyfriend was 20 defendant. As it stood, Ms. Cole had testified only to her assumption about what Latesha meant. Ms. Cole’s testimony was 21 undermined by her concession that she assumed Latesha meant defendant—who Ms. Cole did not recognize at trial—simply 22 because he was sitting in the courtroom. By deciding not to object, defense counsel avoided potentially unfavorable evidence. This 23 tactic paid off when Ms. Cole subsequently testified on cross- examination that Latesha had a number of boyfriends at time of the 24 shooting in August 2015 and that she and defendant appeared to have broken up, testimony that defense counsel highlighted in 25 closing argument. 26 ECF No. 11-14 at 15-16. As with the other claims, these were rejected by the California Supreme 27 Court in a summary denial. ECF No. 11-16. 28 Rejection of both claims was reasonable. To warrant habeas relief, a petitioner must show 1 that the challenged prosecutorial misconduct rendered his trial fundamentally unfair. Darden v. 2 Wainwright, 477 U.S. 168, 181 (1986). As noted by the state appellate court, Latesha’s 3 identification of the shooter was already accomplished by the admitted statement she gave to 4 Deputy Archuletta that identified petitioner by name. Thus, even if the prosecutor’s question and 5 the answer it elicited were improper, petitioner cannot show that they reasonably altered the 6 outcome of his trial. This finding also forecloses an ineffective assistance of counsel claim based 7 on a failure to object to or request and admonition for the prosecutor’s exchange with Cole. See 8 Strickland v. Washington, 466 U.S. 668, 694 (1984) (“The defendant must show that there is a 9 reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding 10 would have been different.”). 11 Conclusion 12 Accordingly, it is RECOMMENDED that the petition, ECF No. 1, be DENIED. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 objections shall be served and filed within fourteen days after service of the objections. The 19 parties are advised that failure to file objections within the specified time may waive the right to 20 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 21 v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 73 IT IS SO ORDERED. 24 ( q Sty — Dated: _ July 17, 2023 q——— 25 JEREMY D,. PETERSON 26 UNITED STATES MAGISTRATE JUDGE

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