Dominguez, Florencio - Report and Recommendation Granting Writ of Habeas Corpus

Case 3:14-cv-02890-BAS-RBB Document 9 Filed 08/23/16 Page 1 of 43
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 FLORENCIO JOSE DOMINGUEZ, Case No.: 14cv2890 BAS (RBB)
12 Plaintiff,
REPORT AND
13 v. RECOMMENDATION GRANTING
JEFFREY A. BEARD, Director of PETITION FOR WRIT OF HABEAS
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California Department of Corrections and CORPUS
15 Rehabilitation,
16 Defendant.
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18 Petitioner Florencio Jose Dominguez, a state prisoner serving a sentence of fifty
19 years to life, filed a Petition for Writ of Habeas Corpus on December 8, 2014 [ECF Nos.
20 1]. Petitioner challenges his June 24, 2011 conviction for first-degree murder and
21 conspiracy to commit murder following a jury trial in the San Diego County Superior
22 Court, case number SCD230596. (Pet. 2,1 ECF No. 1.) Dominguez argues, in ground
23 one of his Petition, that his trial was barred by the Fifth Amendments protection against
24 double jeopardy. (Id. at 6.) In the second claim, he contends that the trial court violated
25 his Sixth Amendment rights by improperly limiting his cross-examination of a witness.
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All citations are to the page numbers assigned by the Courts electronic case filing system.
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1 (Id.) Respondent Jeffrey Beard filed an Answer to the Petition for Writ of Habeas
2 Corpus along with a Notice of Lodgment [ECF No. 5]. On January 18, 2016, Petitioner
3 filed a Supplemental Lodgment of Exhibits in Response to Courts Request [ECF No. 8].
4 For the reasons discussed below, the Petition should be GRANTED.
5 I. FACTUAL AND PROCEDURAL BACKGROUND
6 This case arises from the September 13, 2008 fatal shooting of thirteen-year-old
7 Moises Lopez in the Shelltown neighborhood of southeast San Diego. (See Lodgment
8 No. 7, People v. Dominguez, No. D060019, slip op. at 2-3 (Cal. Ct. App. July 5, 2013).)
9 Petitioner was arrested and charged with murder in San Diego County Superior Court
10 case number SCD225579.2 (See Pet. Attach. #1 Mem. P. & A. 13, ECF No. 1; Lodgment
11 No. 7, People v. Dominguez, No. D060019, slip op. at 10.) His first criminal trial
12 resulted in a hung jury with jurors voting nine to three in favor of acquittal. (Lodgment
13 No. 7, People v. Dominguez, No. D060019, slip op. at 10.) The trial court held a status
14 hearing on November 4, 2010, to decide whether the matter should be set for retrial.
15 (Petrs Suppl. Lodgment Ex. 1, People v. Dominguez, No. SCD225579, Rep.s Tr. vol.
16 20, 5251, Nov. 4, 2010.) During the hearing, the following exchange took place:
17 The Court: The matter is here for a status. We had 9 not-guilty votes,
3 guilty votes. The question is, should the matter be set for retrial? Ill hear
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from the prosecutor then the defense.
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[Prosecutor]: Based mostly on our conversation back in chambers,3 I
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believe the case should be re-tried. It is a serious matter, and I do believe
21 the People do have the chance of prevailing on a retrial given the statements
of the jurors during the conversation we had.
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23 The Court: What would change? What new evidence would you
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The lodgments submitted to the Court by the Respondent did not include the record from Dominguezs
26 first trial. (See Respts Answer Attach. #1 Mem. P. & A. 6 n.1, ECF No. 5.)
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The minute order indicated that the court held a thirteen-minute-long unreported chambers conference
27 prior to the hearing. (Lodgment No. 1, Clerks Tr. vol. 1, 23, Nov. 4, 2010 (minutes).) Petitioners
counsel confirmed that the November 4, 2010 chambers discussion was not reported. (See Petrs
28 Suppl. Lodgment Ex. 2, Speredelozzi Decl. 13, Jan. 18, 2016.)
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1 have? Nine heard the evidence, and they said no, that you had failed to meet
your burden. Therefore, one would logically think that you would need
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either a new percipient witness or some type of more scientific evidence.
3 Correct me if Im wrong. Youre going to roll on the same trial and just
hope that 12 different people see it differently?
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5 [Prosecutor]: Mostly, yes. At this time we dont see any new
evidence arising. We discussed re-testing the gloves. At this point, other
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than that, there would be no other witnesses I could see in the foreseeable
7 future coming forward.
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The Court: All right.
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For the defense?
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11 [Defense counsel]: Thank you, Your Honor.
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As you already pointed out, 9 to 3. Nine people are voting not guilty.
13 At close of business on Friday, we were close to an acquittal as 11 people
were voting not-guilty on this matter. They heard the evidence. This was a
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smart jury. Both the prosecutor and I think were looking for smart, good
15 people who paid attention. Thats what we got.
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The evidence is what it is. Andres Lopez is not going to be smarter in
17 four months. Daniel Zepedas tape recording is not going to be any clearer
in four months. The DNA evidence is not going to be any more compelling
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in four months. It is going to be the same trial over again. The best the
19 prosecution can do the best that they probably could do on a retrial is
another hung jury. If they get a hung jury on a retrial, they would be lucky.
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21 This is a waste of time, a waste of money; and, quite frankly, it is a
breach of justice if this case goes to trial again. The defense won and the
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prosecution wants to take another bite at the apple. I plead with court to
23 please, please, please dismiss this case pursuant to [section] 1385.
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The Court: All right. Well, this is a tough call because a 15yearold
25 boy was executed in a park.
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The evidence shows the defendant is, in fact, the shot-caller for
27 Shelltown. There is no question about that. He has a double life. He's a
good employee and a dad and a husband; but he also has a girlfriend and is
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1 an active gang member, in fact, probably the head of that gang. There is no
question he was in the park. He was around the murder. We're not talking
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50 feet away. We're talking near the murder. There is a cold beer that
3 indicates that. So he did it, or he obviously knows who did.
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The question in this case, though, is one of did the D.A. meet their
5 burden? That's the question. I put aside the evidence the defense put on
because the defense evidence simply confirmed the fact that he's the shot-
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caller for Shelltown. The question, is as I indicated before, did the D.A.
7 meet their burden with Lopez, Zepeda or the DNA? And any of those
individually would be enough, perhaps, to prove beyond a reasonable doubt;
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and together you would think they would be, but we have nine people that
9 essentially said the D.A. failed to meet their burden.
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That's what this case is all about. It is about the D.A. meeting his
11 burden of proof, which is beyond a reasonable doubt. He has shown by a
preponderance the defendant is the murderer. He has even probably shown
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by clear and convincing evidence the defendant is the murderer. At this
13 point he has failed to meetI agree with the nine jurors. If I was to sit and
make a call on this case without a jury, I think the D.A. has failed to meet
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their burden at this point in time. Based on that, I'm going to dismiss this
15 case ---
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Unidentified Audience Member: Thank you, Jesus.
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The Court: -- without prejudice. There may come a time in the future
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when someone else comes forward to say, either the defendant or someone
19 else. Because the defendant, if he didn't pull the trigger, he knows who did.
He's standing right there. It may be somebody else, but based on the current
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state of the evidence, that can't be proven. And so at this point the matter is
21 dismissed without prejudice.
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23 (Id. at 5251-5254.) The trial court issued a minute order memorializing what occurred at
24 the status hearing. (Lodgment No. 1, Clerks Tr. vol. 1, 23, Nov. 4, 2010 (minutes).)
25 The minute order stated: Peoples motion to retry case is denied. The defense makes a
26 motion under P[enal] C[ode section] 1385 to dismiss the case. The Court dismisses the
27 case without prejudice. (Id.)
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1 The subsequent procedural history was described by the California Court of

2 Appeal:
3 The prosecution refiled the criminal complaint (Super. Ct. San Diego
County, No. SCD230596). Dominguez in response filed a demurrer
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pursuant to section 1004, contending double jeopardy barred the refiled
5 complaint because the court in the first trial had dismissed the case against
him for lack of evidence. The demurrer was assigned to Judge Bernard
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Revak. The record shows the court continued the hearing on the demurrer
7 because it needed additional time to review the pleadings, the demurrer and
the opposition to the demurrer, the applicable legal authorities and to read
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the relevant transcripts from the first case.
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In overruling the demurrer, Judge Revak ruled in part as follows:
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11 I think in reading what Judge Fraser did, what is important to me is
not so much what he said as what he didn't say. And taking a look at
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[People v.] Hatch and some of the other cases that have interpreted this
13 situation, he [Judge Fraser] never said that there was legally insufficient
evidence. And I think the cases discuss that language. And obviously, there
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are grounds for which a [section] 1385 could be ruled on and could be made
15 and would bar a retrial. But that wasn't said by the Judge. And so he did not
find that there was no substantial evidence upon which a trier of fact could
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find the defendant guilty beyond a reasonable doubt or that there was legally
17 insufficient evidence. Had he said that, then I think the dismissal would bar
a retrial.
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19 As I understand further the law, the District Attorney gets one bite out
of the apple, so to speak. Meaning that if there's one dismissal, they can
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refile unless the judge who grants it finds that[ ] there's legally insufficient
21 evidence or that the prosecution has engaged in serious or outrageous
misconduct or that a retrial is meant to harass a defendant. And none of
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these were broached or discussed by the trial judge [in the first case]. And I
23 don't think that, based on this entire record in this case, he made such a
finding. So I think the two dismissal rule applies. The district attorney has
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now used up one. The second dismissal of this case would bar a retrial.
25 And so I'm going to deny the demurrer or alternatively any similar motion
on jeopardy grounds.
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1 (Lodgment No. 7, People v. Dominguez, No. D060019, slip op. at 11-13.) After Judge
2 Revak overruled Petitioners demurrer to the new charges, Dominguez filed a petition for
3 writ of mandate, which the appellate court denied without comment. (See id. at 13 n.5.)
4 Following a jury trial in the second criminal case, Dominguez was convicted of
5 first-degree murder and conspiracy to commit murder. (See id. at 2; Lodgment No. 1,
6 Clerks Tr. vol. 2, 335, June 24, 2011 (abstract of judgment).) Petitioner was sentenced
7 to an indeterminate term of fifty years to life, including twenty-five years to life on the
8 murder conviction with a consecutive term of twenty-five years to life on the firearm
9 enhancement. (See Lodgment No. 3, Rep.s Tr. vol 22, 2866.)
10 Dominguez timely appealed. (Lodgment No. 1, Clerks Tr. vol. 2, 337, June 24,
11 2011 (notice of appeal).) On direct appeal, he argued that double jeopardy barred his
12 second prosecution. (See Lodgment No. 4, Appellants Opening Brief at 17-25, People v.
13 Dominguez, No. D060019 (Cal. Ct. App. July 5, 2013).) Dominguez also contended that
14 the trial court improperly limited his cross-examination of Andres Lopez, and raised
15 additional claims of error. (Id. at 25-75.) The California Court of Appeal rejected all of
16 Petitioners claims and affirmed the judgment. (Lodgment No. 7, People v. Dominguez,
17 No. D060019, slip op. at 2.)
18 Dominguez then raised the same claims in a petition for review with the California
19 Supreme Court. (Lodgment No. 10, Petition for Review at 4-64, People v. Dominguez,
20 [No. S212163] (Cal. Oct. 2, 2013).) The California Supreme Court denied the petition
21 without comment or citation, and denied Petitioners request for publication. (Lodgment
22 No. 11, People v. Dominguez, No. S212163, order at 1 (Cal. Oct. 2, 2013).) Dominguez
23 did not pursue collateral review in state courts. Instead, on December 8, 2014, he filed a
24 Petition for Writ of Habeas Corpus in federal court [ECF No. 1].
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1 II. STANDARD OF REVIEW

2 The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C.A.
3 2244 (West 2006), applies to all federal habeas petitions filed after April 24, 1996.
4 Woodford v. Garceau, 538 U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320,
5 326 (1997)). AEDPA sets forth the scope of review for federal habeas corpus claims:
6 The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas corpus
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in behalf of a person in custody pursuant to the judgment of a State
8 court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
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10 28 U.S.C.A. 2254(a) (West 2006); see Reed v. Farley, 512 U.S. 339, 347 (1994);
11 Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991). Because Dominguezs Petition
12 was filed on December 8, 2014, AEDPA applies to this case. See Woodford, 538 U.S. at
13 204.
14 Section 2254(d) reads as follows:
15 An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
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granted with respect to any claim that was adjudicated on the merits in
17 State court proceedings unless the adjudication of the claim--
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(1) resulted in a decision that was contrary to, or involved
19 an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
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21 (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
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presented in the State court proceeding.
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24 28 U.S.C.A. 2254(d). For purposes of applying 2254(d)(1), [c]learly established
25 federal law consists of holdings of the United States Supreme Court at the time of the
26 state court decision. . . . Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing
27 Williams v. Taylor, 529 U.S. 362, 412 (2000)). Nonetheless, circuit court precedent
28 may be persuasive in determining what law is clearly established and whether a state
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1 court applied that law unreasonably. Id. (quoting Maxwell v. Roe, 606 F.3d 561, 567
2 (9th Cir. 2010)).
3 Section 2254(d)(1) contains two independent clauses: a contrary to clause and
4 an unreasonable application clause. See Williams v. Taylor, 529 U.S. at 404. A state
5 prisoner is not required to satisfy both clauses of 2254(d)(1). Id. at 404-05. He need
6 only show that the state court's decision was contrary to federal law, or, an
7 unreasonable application of federal law. Id.
8 A state court decision is contrary to clearly established federal law if it applies a
9 rule contradicting a holding of the Supreme Court or reaches a result different from
10 Supreme Court precedent on materially indistinguishable facts. Price v. Vincent, 538
11 U.S. 634, 640 (2003). In Williams, the Supreme Court offered an example of a state
12 court decision that would be contrary to clearly established federal law:
13 A state court decision will certainly be contrary to our clearly established
precedent if the state court applies a rule that contradicts the governing law
14
set forth in our cases. Take, for example, our decision in Strickland v.
15 Washington. If a state court were to reject a prisoner's claim of ineffective
assistance of counsel on the grounds that the prisoner had not established by
16
a preponderance of the evidence that the result of his criminal proceeding
17 would have been different, that decision would be [contrary to] our clearly
established precedent because we held in Strickland that the prisoner need
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only demonstrate a reasonable probability that . . . the result of the
19 proceeding would have been different.
20 529 U.S. at 405-06 (internal citations omitted).
21 Under the unreasonable application clause of 2254(d)(1), a federal habeas
22 court may grant the writ if the state court identifies the correct governing legal principle
23 from [the Supreme Court's] decisions but unreasonably applies that principle to the facts
24 of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams,
25 529 U.S. at 413); accord Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this
26 regard, a federal habeas court may not issue the writ simply because that court
27 concludes in its independent judgment that the relevant state-court decision applied
28 clearly established federal law erroneously or incorrectly. Rather, that application must
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1 also be unreasonable. Williams, 529 U.S. at 411; see also Schriro v. Landrigan, 550
2 U.S. 465, 473 (2007) (same). It is not enough that a federal habeas court, in its
3 independent review of the legal question, is left with a firm conviction that the state court
4 was erroneous. Lockyer, 538 U.S. at 75 (quoting Andrade v. Atty Gen. of California,
5 270 F.3d 743, 753 (9th Cir. 2001) (internal quotation marks omitted)). A state court's
6 determination that a claim lacks merit precludes federal habeas relief so long as
7 fairminded jurists could disagree on the correctness of the state court's decision.
8 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541
9 U.S. 652, 664 (2004)). Accordingly, to obtain habeas corpus from a federal court, a
10 state prisoner must show that the state court's ruling on the claim being presented in
11 federal court was so lacking in justification that there was an error well understood and
12 comprehended in existing law beyond any possibility for fairminded disagreement. Id.
13 at 103.
14 If a state prisoner is able to satisfy 2254(d)(1)'s contrary to clause or its
15 unreasonable application clause, the federal habeas court must then review the state
16 prisoner's claim to determine the appropriate relief. See Lafler v. Cooper, 566 U.S. ___,
17 ___, 132 S. Ct. 1376, 1389-90 (2012) (reviewing habeas petitioner's ineffective assistance
18 claim de novo and determining appropriate remedy after finding that state court's
19 adjudication of the claim was contrary to clearly established federal law); Panetti v.
20 Quarterman, 551 U.S. 930, 953 (2007) (holding that, when the requirement set forth in
21 2254(d)(1) is satisfied, [a] federal court must then resolve the claim without the
22 deference AEDPA otherwise requires.).
23 Pursuant to 2254(d)(2), the unreasonable determination clause, a state-court
24 factual determination is not unreasonable merely because the federal habeas court would
25 have reached a different conclusion in the first instance. Burt v. Titlow, 571 U.S. ___,
26 ___, 134 S. Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
27 Factual findings of a state court are presumed to be correct and can be reversed by a
28 federal habeas court only when the federal court is presented with clear and convincing
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1 evidence. See 28 U.S.C.A. 2254(e)(1) (West 2006); Miller-El v. Dretke, 545 U.S. 231,
2 240-41 (2005); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Crittenden v. Ayers, 624
3 F.3d 943, 950 (9th Cir. 2010); Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007).
4 A petitioner bears the burden of rebutting this presumption by clear and
5 convincing evidence. 28 U.S.C.A. 2254(e)(1); Miller-El v. Dretke, 545 U.S. at 240.
6 This standard is demanding but not insatiable . . . [d]eference does not by definition
7 preclude relief. Miller-El v. Dretke, 545 U.S. at 240 (alteration in original) (quoting
8 Miller-El v. Cockrell, 537 U.S. at 340). Factual findings may be infected with
9 substantive legal error where the fact-finding process itself is defective. The state court
10 fact-finding process is undermined where the state court has before it, yet apparently
11 ignores, evidence that supports a petitioners claim. See Miller-El v. Cockrell, 537 U.S.
12 at 346 (observing that state court ignored testimony that the district attorneys office had
13 manipulated the racial composition of the jury in the past); Taylor v. Maddox, 366 F.3d
14 992, 1001 (9th Cir. 2004) (making evidentiary findings without holding a hearing or
15 giving a petitioner an opportunity to present evidence are other examples of a flawed
16 fact-finding process).
17 [T]he presumption of correctness is equally applicable when a state appellate
18 court, as opposed to a state trial court, makes the finding of fact . . . . Sumner v. Mata,
19 455 U.S. 591, 593 (1982). But it is only the state court's factual findings, not its ultimate
20 decision, that are subject to 2254(e)(1)'s presumption of correctness. Miller-El v.
21 Cockrell, 537 U.S. at 341-42 (The clear and convincing evidence standard is found in
22 2254(e)(1), but that subsection pertains only to state-court determinations of factual
23 issues, rather than decisions.). Additionally, the United States Supreme Court has held
24 that, for claims adjudicated on the merits in the state courts, review under 2254(d)(1)
25 is limited to the record that was before the state court that adjudicated the claim on the
26 merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
27 When there is no reasoned decision from the states highest court, the Court looks
28 through to the underlying appellate court decision. Ylst v. Nunnmeaker, 501 U.S. 797,
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1 801-06 (1991). Where a state court's decision is unaccompanied by an explanation, the

2 habeas petitioner's burden still must be met by showing there was no reasonable basis for
3 the state court to deny relief. Harrington v. Richter, 562 U.S. at 98.
4 If the Court determines that the state court's decision was an objectively
5 unreasonable application of clearly established United States Supreme Court precedent,
6 the Court must review whether Petitioner's constitutional rights were violated without the
7 deference to the state court's decision that AEDPA otherwise requires. Panetti v.
8 Quarterman, 551 U.S. at 953-54; Amado v. Gonzalez, 758 F.3d 1119, 1131 (9th Cir.
9 2014).
10 III. DISCUSSION
11 In his first ground for relief, Petitioner argues that his second trial was barred by
12 double jeopardy principles because the trial judges dismissal of his first criminal case
13 was an acquittal. (Pet. 20, ECF No. 1.) Respondent claims that Dominguezs retrial did
14 not violate his right to be free from double jeopardy because his first case was not
15 dismissed for insufficiency of the evidence. (Respts Answer Attach. #1 Mem. P. & A.
16 13, ECF No. 5.) Thus, Dominguez fails to demonstrate that the state courts rejection of
17 this claim was contrary to, or an unreasonable application of, clearly established federal
18 law. (Id. at 22.)
19 A. State Court Decision
20 Because the California Supreme Court denied Dominguezs petition for review
21 without comment, (see Lodgment No. 11, People v. Dominguez, No. S212163, order at
22 1), the Court looks through to the California Court of Appeals decision. Ylst, 501
23 U.S. at 801-06. The state court rejected Petitioners double jeopardy claim:
24 Despite the requirement under section 1385 that the reason for
dismissal be set forth in an order entered upon the minutes, the trial court in
25
the instant case gave no such reason. Instead, the minute order merely
26 provides the case is dismissed without prejudice.
27
In any event, Black's Law Dictionary defines the term dismissal
28 without prejudice to mean a dismissal that does not bar the plaintiff from
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1 refiling the lawsuit within the applicable limitations period. (Black's Law
Dict. (9th ed. 2009) p. 537, col. 1.) The term without prejudice is further
2
defined to mean [w]ithout loss of any rights; in a way that does not harm or
3 cancel the legal rights or privileges of a party. (Id. at p. 1740, col. 1.)
Relying on [People v.] Hatch, [22 Cal. 4th 260, 991 P.2d 165 (2000),] as we
4
must, we conclude from the plain meaning of the words dismissal without
5 prejudice and without prejudice that the trial court in the first case did not
intend to foreclose the People from retrying Dominguez for the murder of
6
Moises. Indeed, if the court had intended to preclude retrial, at a minimum it
7 would have dismissed the case with prejudice. In any event, there is no
language in the minute order that the court viewed the evidence in the light
8
most favorable to the prosecution (see Hatch, supra, 22 Cal. 4th at p. 274)
9 and, if so, that it unambiguously found the evidence to convict insufficient
as a matter of law (see ibid.). In our view, the language of the minute order
10
unambiguously states the intent of the court not to preclude retrial.
11
The transcript from the dismissal hearing supports our conclusion.
12
The court commented on the record that either Andres's testimony or the
13 DNA evidence perhaps would be sufficient to prove beyond a reasonable
doubt that Dominguez murdered Moises, but that one would think this
14
evidence, when considered together, would be sufficient to convict. These
15 comments do not suggest, much less unambiguously, that the court found as
a matter of law the evidence insufficient to convict Dominguez for the
16
murder of Moises. (See Hatch, supra, 22 Cal.4th at p. 273.) Instead, these
17 comments show the trial court was merely assessing the evidencemuch
like a 13th juror. (See People v. Salgado (2001) 88 Cal. App. 4th 5, 10
18
[noting that double jeopardy does not preclude retrial when a dismissal is
19 based on the trial court's reweighing of the evidence as a thirteenth juror,
as opposed to a dismissal based on legal insufficiency of the evidence].)
20
21 We reach the same conclusion for the same reasons with respect to the
comment by the trial court that it agreed with the nine jurors who voted to
22
acquit. Again, this comment merely shows the court was assessing the
23 evidence, not making a legal determination regarding the sufficiency, or lack
thereof, of the evidence. (See People v. Salgado, supra, 88 Cal. App. 4th at
24
p. 10.) We also note the jury in Hatch voted 11 to one to acquit on count 1,
25 10 to two to acquit on count 2 and nine to three to acquit on count 3. (Hatch,
supra, 22 Cal. 4th at p. 266, fn. 2.) Nonetheless, our high court in Hatch
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held retrial of the defendant on these counts was permissible.
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In addition, we note that when the trial court stated it agreed with the
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1 nine jurors to acquit, it added the caveat that the People at this point in
time had not satisfied the prosecution's burden of proof. We conclude the
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use of the words at this point in timewhich was repeated several times by
3 the trial courtis similar to the use of the word would rather than
could that our high court in Hatch found suggest[ed] a reweighing of
4
evidence rather than an application of the substantial evidence standard.
5 (Hatch, supra, 22 Cal. 4th at p. 274.) Our conclusion is buttressed by the
fact the trial court coupled the words at this point in time with the words
6
without prejudice.
7
We thus reject Dominguez's contention that double jeopardy
8
principles barred his retrial.
9
10 (Lodgment No. 7, People v. Dominguez, No. D060019, slip op. at 19-22 (footnote
11 omitted).)
12 B. Double Jeopardy
13 The Fifth Amendment's Double Jeopardy Clause states that [n]o person shall . . .
14 be subject for the same offence to be twice put in jeopardy of life or limb. U.S. Const.
15 amend. V. The Fifth Amendment guarantee against double jeopardy, which is
16 enforceable against the States through the Fourteenth Amendment, bars (1) a successive
17 prosecution for the same offense after a defendant has been previously acquitted or
18 convicted; (2) relitigation of an issue that has been resolved in the defendant's favor in a
19 prior prosecution; and (3) multiple punishments for the same offense. Brown v. Ohio,
20 432 U.S. 161, 165 (1977); North Carolina v. Pearce, 395 U.S. 711, 717 (1969).
21 The Double Jeopardy Clause bars a second prosecution only if jeopardy attached in
22 the original proceeding. See Ex parte Lange, 85 U.S. (18 Wall.) 163, 168-69 (1873). In a
23 criminal proceeding, jeopardy attaches when the defendant faces the risk of a
24 determination of guilt. See Serfass v. United States, 420 U.S. 377, 391-92 (1975).
25 Consequently, in a jury trial, jeopardy attaches when a jury is empaneled and sworn, or,
26 in a bench trial, when the judge begins to receive evidence. United States v. Martin
27 Linen Supply Co., 430 U.S. 564, 569 (1977).
28
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1 Once jeopardy attaches, the Double Jeopardy Clause prohibits retrial after any
2 dismissal that operates as an acquittal. See Smalis v. Pennsylvania, 476 U.S. 140, 145-46
3 (1986). But a retrial following a hung jury does not violate the Double Jeopardy
4 Clause. Richardson v. United States, 468 U.S. 317, 324 (1984) (citing Logan v. United
5 States, 144 U.S. 263, 297-98 (1892)). [T]he protection of the Double Jeopardy Clause
6 by its terms applies only if there has been some event, such as an acquittal, which
7 terminates the original jeopardy. Id. at 325. [A] verdict of acquittal is final, ending a
8 defendant's jeopardy, and even when not followed by any judgment, is a bar to a
9 subsequent prosecution for the same offence. Green v. United States, 355 U.S. 184, 188
10 (1957) (citation omitted) (internal quotation marks omitted).
11 Whether the trial judge's ruling constitutes an acquittal for double jeopardy
12 purposes does not depend on the form of the ruling. Martin Linen, 430 U.S. at 571
13 (citing United States v. Sisson, 399 U.S. 267, 270 (1970) and United States v. Wilson,
14 420 U.S. 332, 336 (1975)). In Martin Linen, [a] hopelessly deadlocked jury was
15 discharged when unable to agree upon a verdict at the criminal contempt trial of
16 respondent corporations . . . . 430 U.S. at 565. The Court was presented with the
17 question of whether the government could appeal the trial court's dismissal of an
18 indictment or whether the appeal was barred by the Double Jeopardy Clause. Id. at 566-
19 67. The Court stated:
20 [W]e have emphasized that what constitutes an acquittal is not to be
controlled by the form of the judge's action. Rather, we must determine
21
whether the ruling of the judge, whatever its label, actually represents a
22 resolution, correct or not, of some or all of the factual elements of the
offense charged.
23
24 Id. at 571 (citation omitted). In evaluating the order that dismissed the case, the Court
25 explained that [t]here can be no question that the judgments of acquittal entered here by
26 the District Court were acquittals' in substance as well as form. Id. at 571-72. The trial
27 judge found that the prosecution had failed to present sufficient evidence to meet its
28 burden. Id. at 572.
14
14cv2890 BAS (RBB)
1 Even where the trial court does not expressly acquit a defendant, retrial may still be
2 prohibited if the court determines that the evidence was insufficient to prove guilt. See
3 Smalis, 476 U.S. at 144 (holding that sustaining a demurrer at the end of prosecution's
4 case-in-chief operated as an acquittal because the evidence was insufficient to establish
5 defendant's guilt). [A] trial court's finding of insufficient evidence . . . is the equivalent
6 of an acquittal . . . . Richardson, 468 U.S. at 325 n.5. A trial court's ruling constitutes a
7 judgment of acquittal for purposes of double jeopardy only when it is plain that the [trial
8 court] . . . evaluated the Government's evidence and determined that it was legally
9 insufficient to sustain a conviction. Manokey v. Waters, 390 F.3d 767, 774 (4th Cir.
10 2004) (alteration in original) (quoting United States v. Scott, 437 U.S. 82, 97 (1978)).
11 Thus, once [a] reviewing court has found the evidence legally insufficient, a second
12 trial is precluded. Marshall v. Bristol Super. Ct., 753 F.3d 10, 18 (1st Cir. 2014) (quoting
13 Burks v. United States, 437 U.S. 1, 18 (1978)) (internal quotation marks omitted). But a
14 dismissal based on the weight of the evidence does not prevent a retrial. See Tibbs v.
15 Florida, 457 U.S. 31, 42 (1982).
16 The United States Supreme Court has held that a state violates the Double
17 Jeopardy Clause if it prosecutes a defendant a second time on the same charges after the
18 judge at the first trial granted defendants motion for a new trial on the ground that the
19 evidence was legally insufficient to support a guilty verdict. See Hudson v. Louisiana,
20 450 U.S. 40, 41 (1981). In Hudson, a habeas petitioner challenged his murder conviction
21 on double jeopardy grounds, arguing that there was insufficient evidence to support the
22 verdict in his first trial:
23 Petitioner Tracy Lee Hudson was tried in Louisiana state court for
first-degree murder, and the jury found him guilty. Petitioner then moved
24
for a new trial, which under Louisiana law was petitioner's only means of
25 challenging the sufficiency of the evidence against him. The trial judge
granted the motion, stating: I heard the same evidence the jury did[;] I'm
26
convinced that there was no evidence, certainly not evidence beyond a
27 reasonable doubt, to sustain the verdict of the homicide committed by this
defendant of this particular victim.
28
15
14cv2890 BAS (RBB)
1 Id. (alteration in original). In setting aside the guilty verdict, the trial judge in Hudson
2 commented, [H]ow they concluded that this defendant committed the act from that
3 evidence when no weapon was produced, no proof of anyone who saw a blow struck, is
4 beyond the Court's comprehension. Id. at 43. In the second trial, the state presented
5 testimony from an additional witness, and the jury found the petitioner guilty. Id. at 42.
6 The Louisiana Supreme Court denied habeas relief on the ground that there was some
7 evidence supporting the verdict in the first prosecution. Id. The United States Supreme
8 Court reversed, explaining that retrial was precluded because the reviewing court has
9 found the evidence legally insufficient to support the guilty verdict. Id. at 43-44
10 (quoting Burks, 437 U.S. at 18).
11 The trial court's action is the legal equivalent of an acquittal if it constitutes a
12 ruling that the prosecution's evidence was insufficient to support a conviction, regardless
13 of whether that ruling is legally correct. See Evans v. Michigan, 568 U.S. ___, ___, 133
14 S. Ct. 1069, 1074 (2013) (explaining that although trial court erred in directing verdict of
15 acquittal at close of prosecution's case, defendant was acquitted for double jeopardy
16 purposes and could not be retried); Sanabria v. United States, 437 U.S. 54, 64 (1978)
17 (holding that retrial was barred where trial judge granted motion for judgment of acquittal
18 because of insufficient evidence even though some evidence had been erroneously
19 excluded); Fong Foo v. United States, 369 U.S. 141, 143 (1962) (holding that retrial was
20 barred when judge erroneously directed verdict of acquittal due to prosecutorial
21 misconduct and because three of the governments witnesses who had testified and a
22 fourth, who was in the process of testifying, lacked credibility).
23 C. The California Court of Appeals Unreasonable Application of United States
24 Supreme Court Law
25 The state courts rejection of Dominguezs double jeopardy claim was an
26 unreasonable application of Supreme Court case law within the meaning of
27 2254(d)(1). AEDPA does not require state and federal courts to wait for some nearly
28 identical factual pattern before a legal rule must be applied. Carey v. Musladin, 549
16
14cv2890 BAS (RBB)
1 U.S. 70, 81 (2006) (Kennedy, J., concurring in judgment). The statute permits a federal
2 court to find an application of a controlling principle unreasonable even when the case
3 involves a set of facts different from those of the case in which the principle was
4 announced. Lockyer v. Andrade, 538 U.S. at 76. The California Court of Appeals
5 decision identifie[d] the correct governing legal principle from [the Supreme Court's]
6 decisions but unreasonably applie[d] that principle to the facts of [Dominguezs] case."
7 Williams v. Taylor, 529 U.S. at 413.
8 The state court acknowledged that an acquittal for double jeopardy purposes can
9 occur when a trial court dismisses a case pursuant to section 1385 if it determines the
10 evidence to convict is insufficient as a matter of law. (Lodgment No. 7, People v.
11 Dominguez, No. D060019, slip op. at 13.) The court cited California precedent but
12 acknowledged that the double jeopardy clause of the California Constitution is
13 interpreted in a similar manner as the Fifth Amendments double jeopardy clause. (Id.
14 at 16.) Even where the state court decision does not specifically cite to relevant federal
15 case law, the deferential AEDPA review standard applies. Early v. Packer, 537 U.S. 3, 8
16 (2002) (holding that the state court is not required to cite United States Supreme Court
17 cases, or even be aware of them, to be entitled to AEDPA deference, so long as neither
18 the reasoning nor the result of the state-court decision contradicts them).
19 The state appellate court in Dominguez quoted from People v. Hatch, 22 Cal. 4th
20 260, 991 P.2d 165 (2000), which cited the rule announced in Martin Linen. (Lodgment
21 No. 7, People v. Dominguez, No. D060019, slip op. at 15.)
22 The reasoning and holding of Hatch govern the instant case. In
reaching its decision, the court in Hatch noted: [T]he United States
23
Supreme Court has long held that what constitutes an acquittal is not to
24 be controlled by the form of the judge's action. [Citation.] Rather, appellate
courts must determine whether the ruling of the judge, whatever its label,
25
actually represents a resolution, correct or not, of some or all of the factual
26 elements of the offense charged. [Citation.] If a trial court rules the
evidence is insufficient as a matter of law, then the ruling bars retrial even if
27
it is patently erroneous or the court has no statutory authority to make it.
28
17
14cv2890 BAS (RBB)
1 (Lodgment No. 7, People v. Dominguez, No. D060019, slip op. at 13 (alterations in

2 original) (quoting Hatch, 22 Cal. 4th at 270-71).) The majority opinion4 unreasonably
3 applied the Supreme Court law in evaluating Judge Frasers dismissal of Petitioners first
4 criminal case.
5 The question before the court of appeal was whether the dismissal of Dominguezs
6 first criminal case constituted an acquittal. [T]he protection of the Double Jeopardy
7 Clause by its terms applies only if there has been some event, such as an acquittal, which
8 terminates the original jeopardy. Richardson v. United States, 468 U.S. at 325. This
9 required the appellate court to determine the reasons for the dismissal. [A] trial court's
10 finding of insufficient evidence . . . is the equivalent of an acquittal . . . . Id. n.5.
11 Specifically, the appellate court had to examine the record to find whether Judge Fraser
12 dismissed Petitioners case due to the prosecutors failure to prove his guilt beyond a
13 reasonable doubt. See Hudson v. Louisiana, 450 U.S. at 45 n.5 (Burks precludes retrial
14 where the State has failed as a matter of law to prove its case despite a fair opportunity to
15 do so.) (citing Burks v. United States, 437 U.S. at 972). In holding the evidence
16 insufficient to sustain guilt, an appellate court determines that the prosecution has failed
17 to prove guilt beyond a reasonable doubt. Burks, 437 U.S. at 16 n.10 (citing Am.
18 Tobacco Co. v. United States, 328 U.S. 781, 787 n.4 (1946)).
19 The dismissal occurred during a status hearing held at the conclusion of
20 Petitioners first trial on November 4, 2010, when Judge Fraser stated his ruling and the
21 reasons for it in open court. (See Petrs Suppl. Lodgment Ex. 1, People v. Dominguez,
22 No. SCD225579, Rep.s Tr. vol. 20, 5253-54, Nov. 4, 2010.) The outcome of the hearing
23 was recorded in a clerks minute order. (Lodgment No. 1, Clerks Tr. vol. 1, 23, Nov. 4,
24 2010 (minutes).) The record before the appellate court included both the minute order
25
26
27 4
Justice McDonald filed a dissent which was not included in the original lodgments. The Court
received the dissenting opinion after ordering the parties to supplement the lodgments. (Mins., Jan. 12,
28 2016.)
18
14cv2890 BAS (RBB)
1 and the transcript of the hearing where Judge Fraser denied the Peoples motion to retry
2 the case and dismissed it without prejudice. (See Lodgment No. 7, People v. Dominguez,
3 No. D060019, slip op. at 10-11.)
4 The appellate court started its analysis by examining the minute order that reflected
5 the outcome of the hearing before Judge Fraser. (Id. at 19.) The clerks minutes
6 provided no reason for the dismissal; nonetheless, the majority attempted to extrapolate
7 the trial judges intended meaning from the order. (Id. at 19.) The majority consulted
8 Blacks Law Dictionary, which defined dismissal without prejudice as not barring the
9 plaintiff from refiling the lawsuit within the applicable limitations period. (Id. (quoting
10 Blacks Law Dict. 537 (9th ed. 2009).) Relying on this definition, the appellate court
11 concluded that the trial court in the first case did not intend to foreclose the People from
12 retrying Dominguez for the murder of Moises. (Id. at 20.) This was an unreasonable
13 application of the long-standing Supreme Court caselaw. Whether the trial court
14 intended to foreclose the People from retrying Dominguez was irrelevant. The state
15 appellate court was required to view Dominguezs claim in light of Martin Linen
16 namely, to examine whether the trial court dismissed the case for insufficiency of the
17 evidence. 430 U.S. at 571 ([W]e must determine whether the ruling of the judge,
18 whatever its label, actually represents a resolution, correct or not, of some or all of the
19 factual elements of the offense charged.). Here, the state appellate courts reasoning
20 contradicted the relevant Supreme Court law because it focused on the label, and not the
21 substance, of the trial courts order. See Panetti v. Quarterman, 551 U.S. at 953-54
22 (citing Early v. Packer, 537 U.S. at 8).
23 In Dominguezs case, the court of appeal observed that [d]espite the requirement
24 under section 1385 that the reason for dismissal be set forth in an order entered upon the
25 minutes, the trial court . . . gave no such reason. Instead, the minute order merely
26 provides the case is dismissed without prejudice. (Lodgment No. 7, People v.
27 Dominguez, No. D060019, slip op. at 19.) From the minute order, the majority gleaned
28 the trial courts intention: In our view, the language of the minute order unambiguously
19
14cv2890 BAS (RBB)
1 states the intent of the court not to preclude retrial. (Id. at 20.) It reasoned that if the
2 [trial] court had intended to preclude retrial, at a minimum it would have dismissed the
3 case with prejudice. (Id.) The state court acknowledged that a double jeopardy
4 analysis requires more. [The court] must determine whether the ruling of the judge,
5 whatever its label, actually represents a resolution, correct or not, of some of the factual
6 elements of the offense charged. Martin Linen, 430 U.S. at 571. Even so, the California
7 Court of Appeal unreasonably applied this rule. The trial courts intent with regard to
8 further criminal proceedings, however, is not the test for establishing whether the
9 dismissal was based on insufficient evidence.
10 The fact that the trial judge contemplates that there will be a new trial is not
11 conclusive on the issue of double jeopardy . . . . United States v. Scott, 437 U.S. at 92.
12 Indeed, the trial judge's characterization of his own action cannot control the
13 classification of the action for purposes of [double jeopardy and] appellate jurisdiction.
14 United States v. Jorn, 400 U.S. 470, 478 n.7 (1971) (citing United States v. Sisson, 399
15 U.S. 267, 290 (1970)). [T]he vital safeguard of the Double Jeopardy Clause is not
16 measured by the intention or discretion of the trial court or [the appellate] court.
17 Availability of the constitutional safeguard is a question of law . . . . United States v.
18 Bowline, 593 F.3d 944, 951 (10th Cir. 1979). Judge Fraser may have believed Petitioner
19 should be retried, but this is not determinative of whether the trial courts disposition of
20 the case constituted an acquittal. Clearly established federal law dictates that a dismissal
21 for insufficient evidence bars a retrial even where an acquittal is based upon an
22 egregiously erroneous foundation. Sanabria v. United States, 437 U.S. at 64 (quoting
23 Fong Foo v. United States, 369 U.S. at 143).
24 The majoritys attempt to assign meaning to the clerks minutes was an objectively
25 unreasonable application of clearly established law. See Martin Linen, 430 U.S. at 571.
26 The minute order provided no reasons for dismissal; it merely summarized the outcome
27 of the hearing. The trial judge stated the reasons for dismissing the case at the hearing,
28 and the courts oral ruling should have served as the starting point for determining
20
14cv2890 BAS (RBB)
1 whether the dismissal was an acquittal based on insufficiency of the evidence. The trial
2 judges oral ruling is the strongest evidence of the grounds for the dismissal. See
3 Mannes v. Gillespie, 967 F.2d 1310, 1315 (9th Cir. 1992). By shifting its analysis to the
4 written minutes, the appellate court avoided the substance of Judge Frasers ruling and
5 focused on the label instead. That is contrary to Supreme Court guidance. See Evans
6 v. Michigan, 568 U.S. at ___, 133 S. Ct. at 1078 (Our decision turns not on the form of
7 the trial court's action, but rather whether it serve[s] substantive purposes' or
8 procedural ones) (quoting United States v. Scott, 437 U.S. at 98 n.11); Martin Linen,
9 430 U.S. at 571. This unreasonable application of Martin Linen is not cured by the
10 remainder of the state courts discussion.
11 The majority argued that double jeopardy did not preclude retrial because Judge
12 Fraser was merely assessing the evidence much like a 13th juror. (Lodgment No. 7,
13 People v. Dominguez, No. D060019, slip op. at 21.) The state court relied on People v.
14 Salgado, 88 Cal. App. 4th 5, 105 Cal. Rptr. 2d 373 (2001), but that cases double
15 jeopardy discussion has limited application here because Salgado involved a post-
16 conviction dismissal of a jury's verdict.
17 In Salgado, a jury convicted defendant of carjacking and assault with a firearm. Id.
18 at 8, 105 Cal. Rptr. 2d at 376. After the guilty verdict, the trial court granted its own
19 motion for new trial of the carjacking count and dismissed that count after finding the
20 evidence legally insufficient to support the verdict. Id. The prosecution appealed both
21 orders, arguing the court exceeded its authority in granting a new trial, and that granting a
22 new trial and dismissing the count were inconsistent rulings. Id. at 9, 105 Cal. Rptr. 2d at
23 377.
24 The Salgado court noted that the record showed the dismissal was based on a
25 conclusion that there was insufficient evidence to support the conviction as a matter of
26 law. Id. at 10, 105 Cal. Rptr. 2d at 378. It was clear the court applied the proper
27 substantial evidence test, viewed the evidence in the light most favorable to the
28 prosecution, and concluded no reasonable trier of fact could convict. Id. The court
21
14cv2890 BAS (RBB)
1 examined the entire record when interpreting the trial courts minute order. Id. (citing
2 People v. Smith, 33 Cal. 3d 596, 599, 659 P.2d 1152, 189 Cal. Rptr. 862 (1983)). It
3 noted that trial judge repeatedly used the phrase insufficient evidence, and that this
4 was a term of art showing that the court found the evidence to be legally insufficient to
5 support a conviction. Id. (citing Mannes v. Gillespie, 967 F.2d at 1315-16). The
6 dismissal for insufficiency of evidence was an appealable order because it occurred after
7 a verdict of guilty by the jury. Id. at 11, 105 Cal. Rptr. 2d at 378. Appellate review did
8 not offend the Double Jeopardy Clause.
9 Even if it is the functional equivalent of an acquittal, appellate review of a
dismissal for legal insufficiency will not result in another trial. Where the
10
jury convicts and the court then acquits, an error in the court's ruling can
11 be corrected by restoring the jury verdict and entering judgment accordingly.
12 Id. at 13, 105 Cal. Rptr. 2d at 380. If [there had been no conviction and] the carjacking
13 count had been dismissed after a jury deadlock . . . , the dismissal would have terminated
14 Salgado's prosecution since a retrial would violate the prohibition against double
15 jeopardy. Id. at 12, 105 Cal. Rptr. 2d at 379 (citing Martin Linen, 430 U.S. at 569, 574;
16 Hatch, 22 Cal. 4th at 271-72, 92 Cal. Rptr. 2d at 89, 991 P.2d at 173).
17 The procedural posture of Salgado differs from this case because Dominguezs
18 first trial did not result in a guilty verdict. The jury deadlocked nine to three in favor of
19 acquittal, and the trial judge declared a mistrial. (Lodgment No. 7, People v. Dominguez,
20 No. D060019, slip op. at 10.) Following the mistrial, Judge Fraser denied the Peoples
21 motion to retry Dominguez and dismissed the case, stating that the district attorney failed
22 to meet his burden of proof. (Petrs Suppl. Lodgment Ex. 1, People v. Dominguez, No.
23 SCD225579, Rep.s Tr. vol. 20, 5253-54.) The post-conviction dismissal in Salgado
24 followed the trial judges review of the entire record in the light most favorable to the
25 jurys verdict and his conclusion that there was no substantial evidence which would
26 permit any rational jury to find Salgado guilty of carjacking beyond a reasonable doubt.
27 Salgado, 88 Cal. App. 4th at 15, 105 Cal. Rptr. 2d at 381.
28
22
14cv2890 BAS (RBB)
1 The dismissal of Dominguezs first case did not reverse a jurys verdict. The
2 majoritys conclusion that Judge Fraser was merely assessing evidence and acting like a
3 thirteenth juror was an unreasonable application of double jeopardy principles stated in
4 Tibbs v. Florida, 457 U.S. at 41-42, and Martin Linen, 430 U.S. at 571. Tibbs outlines
5 the distinctions between the prosecution failing to produce sufficient evidence and the
6 trial judge concluding that a guilty verdict is against the weight of the evidence, and
7 discusses their double jeopardy ramifications.
8 Burks and Greene implement the principle that [t]he Double
Jeopardy Clause forbids a second trial for the purpose of affording the
9
prosecution another opportunity to supply evidence which it failed to muster
10 in the first proceeding. Burks, supra, at 11, 98 S. Ct., at 2147. This
prohibition, lying at the core of the Clause's protections, prevents the State
11
from honing its trial strategies and perfecting its evidence through
12 successive attempts at conviction. Repeated prosecutorial sallies would
unfairly burden the defendant and create a risk of conviction through sheer
13
governmental perseverance. See Green v. United States, 355 U.S. 184, 187-
14 88, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199 (1957); United States v. DiFrancesco,
449 U.S., at 130, 101 S. Ct., at 433. For this reason, when a reversal rests
15
upon the ground that the prosecution has failed to produce sufficient
16 evidence to prove its case, the Double Jeopardy Clause bars the prosecutor
from making a second attempt at conviction.
17
18 As we suggested just last Term, these policies do not have the same
force when a judge disagrees with a jury's resolution of conflicting evidence
19
and concludes that a guilty verdict is against the weight of the evidence. See
20 Hudson v. Louisiana, 450 U.S. 40, 44-45, n.5, 101 S. Ct. 970, 972-73, n.5,
67 L. Ed. 2d 30 (1981). A reversal on this ground, unlike a reversal based
21
on insufficient evidence, does not mean that acquittal was the only proper
22 verdict. Instead, the appellate court sits as a thirteenth juror and disagrees
with the jury's resolution of the conflicting testimony. This difference of
23
opinion no more signifies acquittal than does a disagreement among the
24 jurors themselves. A deadlocked jury, we consistently have recognized,
does not result in an acquittal barring retrial under the Double Jeopardy
25
Clause. Similarly, an appellate court's disagreement with the jurors'
26 weighing of the evidence does not require the special deference accorded
verdicts of acquittal.
27
28 Tibbs v. Florida, 457 U.S. at 41-42.
23
14cv2890 BAS (RBB)
1 The California Court of Appeals conclusion that the trial judge was assessing or
2 weighing the evidence, and not making a legal determination regarding the sufficiency,
3 or lack thereof, of the evidence, is an unreasonable application of the United States
4 Supreme Court ruling in Tibbs. The weight of the evidence refers to a determination
5 [by] the trier of fact that a greater amount of credible evidence supports one side of an
6 issue or cause than the other. Id. at 38. Judges commonly distinguish between the
7 weight and the sufficiency of the evidence. Id. at 44. Judge Fraser did not resolve any
8 questions of credibility, an approach that would indicate reweighing of evidence.
9 Furthermore, in discussing the evidence presented at trial, Judge Fraser stated that he put
10 aside the evidence the defense put on and discussed the Peoples evidence, as well as the
11 burden of proof. (Petrs Suppl. Lodgment Ex. 1, People v. Dominguez, No.
12 SCD225579, Rep.s Tr. vol. 20, 5253.) As noted by the dissent, Judge Fraser did not
13 mention the weight of the evidence, but referred numerous times to whether the
14 prosecution met its burden of proof. (Petrs Suppl. Lodgment Ex. 3, People v.
15 Dominguez, No. D060019, slip op. at 13 (McDonald, J., dissenting).) Because the jury
16 did not reach a verdict in Dominguezs first trial, there was no occasion to set aside a
17 verdict as against the weight of the evidence. A reversal based on the weight of the
18 evidence . . . can occur only after the State both has presented sufficient evidence to
19 support conviction and has persuaded the jury to convict. Tibbs, 457 U.S. at 42-43; see
20 Mannes v. Gillespie, 967 F.2d 1310, 1315 (9th Cir. 1992) (same).
21 These considerations led Justice McDonald to find, Judge Fraser dismissed the
22 murder case against Dominguez because of a failure of proof beyond a reasonable doubt,
23 the practical equivalent of an acquittal. (Petrs Suppl. Lodgment Ex. 3, People v.
24 Dominguez, No. D060019, slip op. at 16 (McDonald, J., dissenting).) As a result,
25 double jeopardy principles barred a second murder trial. (Id.)
26 The Ninth Circuit has addressed double jeopardy in a similar setting before. In
27 Mannes, the court granted the writ of habeas corpus on double jeopardy grounds,
28 applying the legal principles announced in Hudson v. Louisiana, 450 U.S. 40. Mannes,
24
14cv2890 BAS (RBB)
1 967 F.2d at 1315. The petitioner in Mannes was charged in state court with three counts
2 of murder and other charges arising from driving while intoxicated. When the jury could
3 not reach a verdict on the murder counts, the court declared a mistrial. Two weeks later,
4 the trial court dismissed the murder charges pursuant to section 1385. Id. at 1313-14.
5 The court's minute order dismissing the charges stated there was insufficient evidence as
6 to several elements and no likelihood a retrial would result in a unanimous verdict. Id. at
7 1314-15. The prosecution refiled the murder charges and Mannes objected, arguing that
8 retrial would violate double jeopardy. Id. at 1312. After Mannes exhausted her state
9 remedies, she sought a writ of habeas corpus from the federal court to enjoin the
10 prosecution. She argued that the dismissal was equivalent to an acquittal and therefore
11 retrial was barred by double jeopardy. The court granted her relief, and the Ninth Circuit
12 affirmed granting of the writ prohibiting any further prosecutions. Id. at 1316.
13 Applying United States Supreme Court precedent, the Mannes court explained that
14 if the dismissal was based on the finding that the prosecution had failed as a matter of law
15 to prove its case, double jeopardy principles barred any future attempts to convict.
16 Mannes, 967 F.2d at 1314-15 (citing Hudson v. Louisiana, 450 U.S. at 40). The trial
17 judge's ruling that the evidence presented at trial was insufficient to convict petitioner of
18 murder was an acquittal for the purposes of the Double Jeopardy Clause. A judgment of
19 acquittal entered after a deadlocked jury is dismissed terminates jeopardy and prevents
20 retrial. Id. at 1316 (citations omitted). Like Dominguez, the dismissal of charges
21 against Mannes was not based on the weight of evidence because the order did not refer
22 to weight but instead mentioned insufficient evidence several times; the judge did not
23 resolve any questions of credibility, and there was no occasion to set aside the verdict as
24 against the weight of the evidence because no verdict was reached. See id. at 1315.
25 Relying on Hudson, 450 U.S. at 44-45 & n.5, and Martin Linen, 430 U.S. at 572, 575-76,
26 the Ninth Circuit held that retrial was barred by the Double Jeopardy Clause and affirmed
27 the grant of the writ. Id. at 1316.
28
25
14cv2890 BAS (RBB)
1 The Mannes case is instructive because here, like in Mannes, the trial judge
2 dismissed the case under section 1385. The minute order in Mannes stated that [t]here is
3 insufficient evidence in this case that the defendant acted with implied malice as
4 required for a verdict of guilty of murder, and concluded [t]here is no likelihood that a
5 retrial on these counts will result in a unanimous verdict of guilty of murder. Id. at
6 1315. In this case, Judge Fraser dismissed the case after discussing the prosecutions
7 failure to meet its burden of proof: I think the D.A. has failed to meet their burden at
8 this point in time. Based on that, I'm going to dismiss this case . . . . (Petrs Suppl.
9 Lodgment Ex. 1, People v. Dominguez, No. SCD225579, Rep.s Tr. vol. 20, 5253.) The
10 court explained that based on the current state of the evidence, [the shooters identity]
11 can't be proven. (Id. at 5254.)
12 The state court majority relied on People v. Hatch, 22 Cal. 4th 260, 991 P.2d 165,
13 92 Cal. Rptr. 2d 80 (2000), to support their conclusion that the Judge Fraser did not
14 intend to preclude the retrial of Dominguez. (Lodgment No. 7, People v. Dominguez,
15 No. D060019, slip op. at 19.) In Hatch, the Supreme Court of California reversed an
16 order granting a habeas corpus petition after concluding that retrial after a dismissal
17 under section 1385 was not barred by the double jeopardy principles under the facts of
18 [that] case. 22 Cal. 4th at 263, 991 P.2d at 168, 92 Cal. Rptr. 2d at 83. Specifically, the
19 court held that dismissal under section 1385 was not an acquittal for legal insufficiency
20 unless the trial court clearly applied the substantial evidence standard. Id. at 273; 991
21 P.2d at 174, 92 Cal. Rptr. 2d at 90.
22 The California Supreme Court observed that the trial court's minute order did not
23 indicate that the court viewed the evidence in light most favorable to the prosecution
24 because the order only stated no reasonable jury would convict. Id. at 274; 991 P.2d at
25 175, 92 Cal. Rptr. 2d at 91. The court distinguished would from could and found
26 that the ambiguities in the trial court's order made it impossible to conclude that the trial
27 court intended to dismiss for lack of sufficient evidence as a matter of law. Id.
28 Accordingly, the state supreme court declined to construe the section 1385 dismissal in
26
14cv2890 BAS (RBB)
1 this case as an acquittal for double jeopardy purposes. Id. at 275; 991 P.2d at 175, 92
2 Cal. Rptr. 2d at 91. The court distinguished Hudson v. Louisiana, explaining that the
3 record in the Hatch case was ambiguous and suggest[ed] that the trial court dismissed
4 the case based on a reweighing of the evidence, which did not result in a double
5 jeopardy bar to retrial. Id. at 275-76; 991 P.2d at 176, 92 Cal. Rptr. 2d at 92. The court
6 stated that Mannes v. Gillespie, 967 F.2d 1310, was inapplicable because the trial court
7 never used the term insufficient evidence, a term of art defined in the Mannes Ninth
8 Circuit decision. Id. at 276; 991 P.2d at 176, 92 Cal. Rptr. 2d at 92.
9 The record in this case does not contain the ambiguities the California Supreme
10 Court noted in Hatch. On the contrary, Judge Fraser expressly applied the substantial
11 evidence standard to view the evidence and concluded that it failed to meet the
12 prosecutions burden of proof. (See Petrs Suppl. Lodgment Ex. 3, People v.
13 Dominguez, No. D060019, slip op. at 11 (McDonald, J., dissenting).) He put aside the
14 evidence the defense put on, indicating he viewed the evidence in the light more
15 favorable to the prosecution. (Id.) The trial judge added, [B]ased on the current state
16 of the evidence, [whether Dominguez or someone else pulled the trigger] cant be
17 proven. (Id. at 12 (alterations in original).) The dissent in Dominguez observed that
18 [i]n essence, this was a finding that a reasonable jury could not find the defendant guilty
19 beyond a reasonable doubt based on the prosecutions evidence. (Id.) The appellate
20 majority was required to consider Judge Frasers sufficiency of the evidence analysis and
21 give proper weight to his conclusion: I think the D.A. has failed to meet their burden at
22 this point in time. (Petrs Suppl. Lodgment Ex. 1, People v. Dominguez, No.
23 SCD225579, Rep.s Tr. vol. 20, 5253-54.) The reason for the dismissal was that the
24 evidence presented at trial was legally insufficient to meet the burden of proof.
25 Clearly established federal law required the state court to determine whether,
26 regardless of what label is attached to the dismissal, the reason for the dismissal was
27 insufficiency of the evidence to prove the defendants guilt beyond a reasonable doubt.
28 See Martin Linen, 430 U.S. at 571. Instead, the majority emphasized that the trial judge
27
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1 intended that Dominguez could be retried. This was an unreasonable application of the
2 Supreme Courts decisions in Martin Linen, 430 U.S. at 571, and Hudson v. Louisiana,
3 450 U.S. at 41-43. See Williams, 529 U.S. at 407-09. Furthermore, the mistaken belief
4 that a dismissal based on a failure of proof or insufficiency of the evidence would not
5 preclude a retrial does not affect the double jeopardy bar to a second trial for the same
6 offense. See Fong Foo v. United States, 369 U.S. at 143. And it is contrary to United
7 States v. Scott, 437 U.S. at 92 (The fact that the trial judge contemplates that there will
8 be a new trial is not conclusive on the issue of double jeopardy . . . .).
9 The state court also concluded that the trial judge was merely re-weighing the
10 evidence and acting as a thirteenth juror when he discussed the prosecutions failure of
11 proof. Because the jury did not reach a verdict in Dominguezs first trial, the appellate
12 courts conclusion was also an unreasonable application of clearly established Supreme
13 Court law, Tibbs v. Florida, 457 U.S. 31. When the California Court of Appeal held that
14 Dominguez could be prosecuted again because the dismissal of his first criminal case was
15 not based on the insufficiency of the evidence, it committed an error well understood
16 and comprehended in existing law beyond any possibility for fairminded disagreement.
17 White v. Woodall, 572 U.S. ___, ___, 134 S. Ct. 1697, 1702 (2014) (quoting Harrington
18 v. Richter, 562 U.S. at 103).
19 Because the state courts decision involved an objectively unreasonable application
20 of the clearly established law, it is not entitled to AEDPA deference. Milke v. Ryan, 711
21 F.3d 998, 1003 (9th Cir. 2013).
22 D. The California Court of Appeals Unreasonable Determination of Facts
23 Factual determinations by state courts are presumed correct absent clear and
24 convincing evidence to the contrary . . . . Miller-El v. Cockrell, 537 U.S. at 340 (citing
25 28 U.S.C. 2254(e)(1)). [W]here the state courts plainly misapprehend or misstate the
26 record in making their findings, and the misapprehension goes to a material factual issue
27 that is central to petitioner's claim, that misapprehension can fatally undermine the fact-
28 finding process, rendering the resulting factual finding unreasonable. Taylor v.
28
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1 Maddox, 366 F.3d 992, 1001 (9th Cir. 2004). Similarly, AEDPAs presumption of
2 correctness does not apply to state court findings arrived at through the use of erroneous
3 legal standards. Caliendo v. Warden of Calif. Mens Colony, 365 F.3d 691, 698 (9th
4 Cir. 2014) (citing Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir. 2002)).
5 In addition to an unreasonable application of Supreme Court law, the California
6 Court of Appeals opinion was based on unreasonable determination of the facts. The
7 majority mischaracterized the minute order and the rationale given by Judge Fraser at the
8 hearing. The minutes show that the prosecutors motion to retry the case was denied at
9 the same time the court dismissed the case under Penal Code section 1385. (Lodgment
10 No. 1, Clerks Tr. vol. 1, 23, Nov. 4, 2010 (minutes).) The prosecutor was asked, What
11 would change [if the case was set for a retrial]? What new evidence would you have?
12 (Petrs Suppl. Lodgment Ex. 1, People v. Domiguez, No. SCD225579, Rep.s Tr. vol.
13 20, 5251.) Judge Fraser continued, Correct me if Im wrong. Youre going to roll on
14 the same trial and just hope that 12 different people see it differently? (Id.) The
15 prosecutor answered, Mostly, yes. At this time we dont see any new evidence arising.
16 We discussed re-testing the gloves. At this point, other than that, there would be no other
17 witnesses I could see in the foreseeable future coming forward. (Id. at 5251-52.)
18 In this context, Judge Fraser denied the motion to retry and dismissed the case. He
19 concluded that the prosecutions evidence was legally insufficient, and he would not
20 allow the People to proceed with a retrial based on the evidence that had been presented.5
21 The majoritys conclusion that the minute order unambiguously states the intent of the
22 court not to preclude retrial was not supported by the record.
23 State court findings may be unreasonable under 2254(d)(2) where the state court
24 has before it, yet apparently ignores, evidence that supports petitioner's claim. Taylor,
25
26
5
The insides of the gloves were tested for the retrial and found to contain a mixture of DNA from at
27 least four individuals, with Moises being a major contributor to the mixture. Dominguez and Josue were
also identified as possible minor contributors to the mixture. (Lodgment No. 7, People v. Dominguez,
28 No. D060019, slip op. at 8 (footnote omitted).)
29
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1 366 F.3d at 1001 (citing Miller-El, 537 U.S. at 346). To fatally undermine the state fact-
2 finding process, and render the resulting finding unreasonable, the overlooked or ignored
3 evidence must be highly probative and central to petitioner's claim. Id. In other words,
4 the evidence in question must be sufficient to support petitioner's claim when considered
5 in the context of the full record bearing on the issue presented in the habeas petition. Id.
6 For the state court of appeal, the determinative issue was whether the dismissal of
7 the murder charge following the mistrial in the first case constituted a finding of
8 evidentiary insufficiency, thereby barring retrial on the murder charge under double
9 jeopardy principles. (Petrs Suppl. Lodgment Ex. 3, People v. Dominguez, No.
10 D060019, slip op. at 1 (McDonald, J., dissenting).) The majoritys opinion briefly
11 acknowledges the trial courts discussion of the prosecutions failure of proof: [W]e
12 note that when the trial court stated it agreed with the nine jurors to acquit, it added the
13 caveat that the People at this time had not satisfied the prosecutions burden of proof.
14 (Lodgment No. 7, People v. Dominguez, No. D060019, slip op. at 21.) Yet, the trial
15 judge mentioned the prosecutors burden of proof four times and emphasized it was the
16 only matter involved in his decision to dismiss the case . . . . (Petrs Suppl. Lodgment
17 Ex. 3, People v. Dominguez, No. D060019, slip op. at 11 (McDonald, J., dissenting).)
18 The question in this case, though, is one of did the D.A. meet their
burden? That's the question. I put aside the evidence the defense put on
19
because the defense evidence simply confirmed the fact that he's the shot-
20 caller for Shelltown. The question, is as I indicated before, did the D.A.
meet their burden with Lopez, Zepeda or the DNA? And any of those
21
individually would be enough, perhaps, to prove beyond a reasonable doubt;
22 and together you would think they would be, but we have nine people that
essentially said the D.A. failed to meet their burden.
23
24 That's what this case is all about. It is about the D.A. meeting his
burden of proof, which is beyond a reasonable doubt. He has shown by a
25
preponderance the defendant is the murderer. He has even probably shown
26 by clear and convincing evidence the defendant is the murderer. At this
point he has failed to meetI agree with the nine jurors. If I was to sit and
27
make a call on this case without a jury, I think the D.A. has failed to meet
28
30
14cv2890 BAS (RBB)
1 their burden at this point in time. Based on that, I'm going to dismiss this
case . . . .
2
3 (Petrs Suppl. Lodgment Ex. 1, People v. Domiguez, No. SCD225579, Rep.s Tr. vol.
4 20, 5253-54.) The trial court explained that based on the current state of the evidence,
5 that cant be proven. (Id. at 5254.) Judge Frasers questions to the prosecutor before he
6 denied the Peoples motion to retry support the conclusion that he dismissed the case for
7 legal insufficiency of the evidence. (See id. at 5251.) The majority overlooks the trial
8 judges comments and fails to address the fact that Judge Fraser discussed evidentiary
9 insufficiency with the prosecutor before making his ruling. Instead, the opinion
10 concludes that the trial court was assessing the evidence, not making a legal
11 determination regarding the sufficiency, or lack thereof, of the evidence. (Lodgment
12 No. 7, People v. Dominguez, No. D060019, slip op. at 21.)
13 The appellate courts failure to acknowledge the evidence in the record that
14 supports Dominguezs claim makes the state courts fact-finding process defective. See
15 Taylor, 366 F.3d at 1008 (Failure to consider key aspects of the record is a defect in the
16 fact-finding process.). The majority mischaracterized and did not give proper
17 consideration to Judge Frasers pronouncements about the Peoples failure to satisfy the
18 burden of proof. This evidence was highly probative and central to Petitioners claim.
19 Id. at 1001. Because the majority opinion fails to take into account the trial courts
20 repeated statements about the burden of proof as well as the discussion between the judge
21 and the prosecutor before the motion to retry was denied, the state court opinion was
22 based on an unreasonable determination of the facts in light of the evidence presented in
23 the state court proceeding. 28 U.S.C.A. 2254(d)(2). [W]here the state court's legal
24 error infects the fact-finding process, the resulting factual determination will be
25 unreasonable and no presumption of correctness can attach to it. Taylor, 366 F.3d at
26 1001.
27 //
28 //
31
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1 E. Relief Under AEDPA

2 A finding that the state courts decision was objectively unreasonable does not end
3 a federal habeas courts inquiry. See Butler v. Curry, 528 F.3d 624, 641 (9th Cir. 2008)
4 (citing 28 U.S.C. 2241(c)(3)). A federal court's power to grant habeas corpus relief to a
5 state inmate depends on the inmate being in custody in violation of the Constitution or
6 laws . . . of the United States. 28 U.S.C.A. 2241(c)(3) (West 2006). Thus, if a federal
7 court finds the state court's holding was contrary to, or an unreasonable application of,
8 clearly established federal law, or was based on an unreasonable determination of the
9 facts, [a] federal court must then resolve the constitutional claim without the deference
10 AEDPA requires. Panetti v. Quarterman, 551 U.S. at 953; Frantz v. Hazey, 533 F.3d
11 724, 739 (9th Cir. 2008). The court must apply a de novo standard of review in
12 determining whether a constitutional violation has occurred. Butler v. Curry, 528 F.3d at
13 641.
14 If the state court's decision was contrary to, or an unreasonable application of,
15 Supreme Court law, or if the state court unreasonably determined the facts, the reviewing
16 court must determine whether the error is subject to a harmless error review.
17 Constitutional errors fall into two categories trial error and structural error. Arizona v.
18 Fulminante, 499 U.S. 279, 306-10 (1991). Trial errors include most constitutional
19 errors. Id. at 306. They occurred during presentation of the case to the jury and they
20 effect may be quantitatively assessed in the context of other evidence presented in order
21 to determine whether [they were] harmless beyond a reasonable doubt. United States v.
22 Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (alteration in original) (quoting Fulminante,
23 499 U.S. at 307-08). The second category is structural errors. They are not subject to a
24 harmless error analysis because they affec[t] the framework within which the trial
25 proceeds, and are not simply an error in the trial process itself. Id. at 148-49
26 (alteration in original) (quoting Fulminante, 499 U.S. at 309-10).
27 Here, the decision of the California Court of Appeal was an unreasonable
28 application of the clearly established law of the Supreme Court, and was based on an
32
14cv2890 BAS (RBB)
1 unreasonable determination of facts. It also resulted in a denial of Dominguezs

2 constitutional right to be free from double jeopardy and was a structural error. See Price
3 v. Georgia, 398 U.S. 323, 331 (1985) (rejecting the contention that a second jeopardy
4 can be harmless error). Accordingly, Petitioners Fifth Amendment claim to be free from
5 double jeopardy entitles him to federal habeas corpus relief.
6 F. Confrontation Clause on Retrial
7 In his second ground for relief, Dominguez argued that his Sixth Amendment right
8 to confront witnesses was violated when the trial court in his second trial improperly
9 limited his cross-examination of Andres Lopez. (Pet. 6, ECF No. 1.) Specifically,
10 Petitioner contends that on retrial, he was not allowed to impeach Lopez with his
11 previous testimony about the lighting in the park and about his misidentification of
12 Jonathan Quintanilla, a.k.a. Crooks. (Id. Attach. # 1 Mem. P. & A. 34-35.)
13 Andres Lopez testified at Petitioners second trial and admitted he did not
14 understand big words and sometimes got confused while testifying in court.
15 (Lodgment No. 3, Rep.s Appeal Tr. Vol 11, 1134, Apr. 7, 2011.) On cross-examination,
16 defense counsel attempted to impeach Lopez with his prior inconsistent statements about
17 the lighting in the park:
18 Q. On direct yesterday, you talked about there being a lot of lights in the
park where you were standing. Do you remember that?
19
20 A. Yes.
21
Q. You indicated a light above the trees. Do you remember?
22
A. Yes.
23
24 ....
25
Q. Okay. Im going to read you your testimony from, again, October 7th
26 [2010].
27
....
28
33
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1 [Defense counsel]: Just to remind us, because there was a little break in time,
were talking about your testimony yesterday where you talked about there
2
being lights in the park. Okay?
3
The Court: Now hes going to read you from an earlier time that you
4
testified and ask you some questions about that compared to what you said
5 yesterday. Do you understand?
6
The witness: Yes.
7
The Court: Okay.
8
9 By [defense counsel]:
10
Q. Question: It was nighttime.
11
Answer: Yeah, it was night.
12
13 ....
14
Question: It was fully dark.
15
Answer: Yes.
16
17 Question: Okay. And where you were standing, there were no lights
on, correct?
18
19 Answer: Yes.
20
When you testified to that at the prior hearing, Andres, Im going to ask
21 you again, is that because you didnt understand the questions that you
answered that way, or is it because you were not telling the truth in court?
22
23 A. What do you mean?
24
Q. When you answered that, the last part of what I just read, you were asked
25 if there were any lights in the park where you were standing. Your answer
was No.
26
27 Did you say that because you were confused, that you didnt
understand the question, or did you say it because you werent telling the
28
34
14cv2890 BAS (RBB)
1 truth in court?
2
The Court: Mr. Speredelozzi, Im not sure I see the inconsistency youre
3 trying to point out. The question you read said where he was standing. It
doesnt say when. I assume it means when he was urinating. He was under
4
the trees, and there may not have been any lights under the trees.
5
....
6
7 Mr. Speredelozzi: He testified yesterday there were lights by the long line
of trees.
8
9 The Court: The Court sustains its own objection to the question.
10 (Lodgment No. 3, Rep.s Appeal Tr. vol. 12, 1298-1302, Apr. 8, 2011.)
11 Lopez also testified that when he arrived at the park, he saw a lot of people there,
12 including either Yogi or Crooks. (Id. vol. 11, 1181, Apr. 7, 2011.) On cross-
13 examination, defense counsel intended to inquire about the prior statement the witness
14 made regarding Crooks, and attempted to read the previous testimony to the jury. (Id.
15 vol. 12, 1304-06, Apr. 8, 2011.) The trial judge questioned the impeachment value of
16 these statements:
17 The Court: Why are we reading so much testimony? What is the thrust of
18 the question going to be?
19 Mr. Speredelozzi: Its going to be identifying that Crooks was there and
20 having him describe what Crooks looks like.
21 The Court: How is that inconsistent with what he said here? He said he was
22 unsure if Crooks or Yogi were there. How is that inconsistent?
23 Mr. Speredelozzi: On [page] 130 the question is: But youre certain he
24 was there? And the answer was, Yeah.
25 The Court: Not sufficient to warrant impeachment. Sustained.

26 (Id. at 1306.)
27 Petitioner claims that the trial court erred in excluding the impeachment material
28 because these statements showed that Andres L. had misidentified a person who was at
35
14cv2890 BAS (RBB)
1 the park the night of the shooting and was coached after the first trial to avoid
2 impeachment on that issue. (Pet. Attach. # 1 Mem. P. & A. 35, ECF No. 1.)
3 Respondent argues that the trial court properly limited Petitioners cross-examination of
4 Lopez, and that the state courts rejection of this claim was neither contrary to, nor an
5 unreasonable application of, clearly established federal law. (Respts Answer Attach. #1
6 Mem. P. & A. 25, ECF No. 5.) Respondent claims that Lopez was impeached
7 repeatedly; the jury was aware of his prior inconsistent statements; and any further
8 impeachment of an obviously mentally challenged witness would be repetitive,
9 harassing, and only marginally relevant. (Id. at 28.)
10 Because the California Supreme Court denied Dominguezs petition for review
11 without comment, (see Lodgment No. 11, People v. Dominguez, No. S212163, order at
12 1), the Court looks through to the California Court of Appeals decision. Ylst, 501
13 U.S. at 801-06.
14 The state appellate court framed the background for Petitioners cross-examination
15 claim as follows:
16 [O]n retrial Andres testified there were lights on above the trees and near a
bathroom in the park. The defense attempted to impeach Andres with his
17
testimony from the first trial, when he was asked, Where you were standing
18 [in the park], there were no lights on, correct? Andres responded, Yes.
19
The trial court sua sponte suggested there was limited impeachment
20 value in this line of questioning because the question from the first trial
asked about the lighting from where Andres was standing, which the court
21
noted was different than the questions about lighting asked of Andres on
22 retrial. Because the court found there was a difference between the where
and the when regarding Andres's testimony on this subject matter, it
23
sustained its own objection to the question.
24
Next, the defense unsuccessfully attempted to impeach Andres based
25
on his testimony in the retrial that on the night Moises was killed he saw
26 Dominguez talking to gang members Yogi or Crooks, but not both, with
Andres's preliminary hearing testimony that he saw both Yogi and Crooks in
27
the park that night. The defense contended Andres's prior testimony was
28 subject to impeachment because Crooks was incarcerated on the day Moises
36
14cv2890 BAS (RBB)
1 was murdered.
2
Outside the presence of the jury, the court stated on the record it found
3 Andres was not being evasive when he testified on retrial he could not
remember whether Crooks was at the park when Moises was killed. In
4
making this finding, the court noted that although competent, in its view
5 Andres possessed the mental capacity of a five- or seven-year-old child
when it came to understanding various concepts. The court further noted
6
that Andres had been impeached myriad times by the defense during cross-
7 examination and that from that point forward it intended to place some
limits on what we might call traditional impeachment methods of Andres in
8
light of his cognitive and memory issues.
9
10 (Lodgment No. 7, People v. Dominguez, No. D060019, slip op. at 44-45.) The appellate
11 court rejected Dominguezs confrontation claim, concluding that the trial court did not
12 abuse discretion in limiting Petitioners cross-examination of Lopez:
13 Here, . . . Andres was subject on retrial to a lengthy and vigorous
cross-examination and recross-examination by the defense. The record
14
supports the finding of the trial court that Andres had difficulty
15 understanding and responding to certain questions, including those requiring
him to contemplate statements he made at different times, in multiple
16
proceedings, to various people, which difficulty, the record shows, grew
17 worse as his cross-examination progressed. The record also supports the
finding of the trial court that Andres repeatedly was impeached by the
18
defense during cross-examination.
19
We therefore conclude the trial court properly exercised its discretion
20
when, towards the end of Andres's lengthy cross-examination in
21 Dominguez's retrial, it limited that cross-examination. (See People v.
Feaster (2002) 102 Cal. App. 4th 1084, 1091-1092 [noting a court abuses its
22
discretion in limiting cross-examination when the resulting injury [is]
23 sufficiently grave to manifest a miscarriage of justice]; see also People v.
Greenberger, supra, 58 Cal. App. 4th at p. 350 [noting the determination
24
whether a defendant has been denied the right of confrontation is focused on
25 the individual witness].)
26
In any event, given the showing in the record that Andres was
27 repeatedly impeached by the defense, we conclude any alleged error in
28
37
14cv2890 BAS (RBB)
1 limiting his lengthy cross-examination was harmless. (See People v.

Watson, supra, 46 Cal. 2d at p. 836.)
2
3 (Id. at 47.)
4 "The Sixth Amendment's Confrontation Clause provides that, [i]n all criminal
5 prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
6 against him.' We have held that this bedrock procedural guarantee applies to both federal
7 and state prosecutions." Crawford v. Washington, 541 U.S. 36, 42 (2004) (alteration in
8 original) (quoting Pointer v. Texas, 380 U.S. 400, 406 (1965)). The Confrontation
9 Clause "guarantees the defendant a face-to-face meeting with witnesses appearing before
10 the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016 (1988). The right to cross-
11 examination . . . is essentially a functional right designed to promote reliability in the
12 truth-finding functions of a criminal trial. Kentucky v. Stincer, 482 U.S. 730, 737
13 (1987).
14 [A] criminal defendant states a violation of the Confrontation Clause by showing
15 that he was prohibited from engaging in otherwise appropriate cross-examination
16 designed . . . to expose to the jury the facts from which jurors . . . could appropriately
17 draw inferences relating to the reliability of the witness. Delaware v. Van Arsdall, 475
18 U.S. 673, 680 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). [T]he
19 Confrontation Clause is generally satisfied when the defense is given a full and fair
20 opportunity to probe and expose [testimonial] infirmities [such as forgetfulness,
21 confusion, or evasion] through cross-examination, thereby calling to the attention of the
22 factfinder the reasons for giving scant weight to the witness' testimony. Delaware v.
23 Fensterer, 474 U.S. 15, 22 (1985) (per curiam); Davis, 415 U.S. at 316 ([T]he cross-
24 examiner is . . . permitted to delve into the witness' story to test the witness' perceptions
25 and memory, [and] . . . has traditionally been allowed to impeach, i.e., discredit, the
26 witness.); Pennsylvania v. Ritchie, 480 U.S. 39, 51-52 (1987) ([T]he right to cross-
27 examine includes the opportunity to show [not only] that a witness is biased, [but also]
28 that the testimony is exaggerated or [otherwise] unbelievable.). Cross-examination need
38
14cv2890 BAS (RBB)
1 not imply conscious or malicious fabrication on the part of the witness so long as it
2 otherwise bears on the witness's reliability or credibility. Fowler v. Sacramento Cty.
3 Sheriffs Dept, 421 F.3d 1027, 1036 (9th Cir. 2005) (citing Van Arsdall, 475 U.S. at
4 680).
5 [T]he Confrontation Clause guarantees only an opportunity for effective cross-
6 examination, not cross-examination that is effective in whatever way, and to whatever
7 extent, the defense might wish. Kentucky v. Stincer, 482 U.S. at 739 (quoting
8 Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). A criminal defendant does not have an
9 unfettered right to offer testimony that is incompetent, privileged, or otherwise
10 inadmissible under standard rules of evidence. Taylor v. Illinois, 484 U.S. 400, 410
11 (1988). Defendants must comply with established rules of procedure and evidence
12 designed to assure both fairness and reliability in the ascertainment of guilt and
13 innocence. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). To that end, the United
14 States Supreme Court explained that the Confrontation Clause does not prevent a trial
15 judge from imposing any limits on defense counsel's inquiry into the potential bias of a
16 prosecution witness. Delaware v. Van Arsdall, 475 U.S. at 679. On the contrary, trial
17 judges retain wide latitude insofar as the Confrontation Clause is concerned to impose
18 reasonable limits on such cross-examination based on concerns about, among other
19 things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation
20 that is repetitive or only marginally relevant. Id. Cross-examination is [s]ubject
21 always to the broad discretion of a trial judge to preclude repetitive and unduly harassing
22 interrogation. Davis v. Alaska, 415 U.S. at 316; Alford v. United States, 282 U.S. 687,
23 694 (1931) (holding that a trial court may exercise a reasonable judgment in determining
24 when [a] subject [on cross-examination] is exhausted and has a duty to protect [the
25 witness] from questions which go beyond the bounds of proper cross-examination merely
26 to harass, annoy or humiliate); Wood v. Alaska, 957 F.2d 1544, 1551-52 (9th Cir. 1992)
27 (explaining that even relevant cross-examination may properly be excluded if its
28 probative value is outweighed by other legitimate interests).
39
14cv2890 BAS (RBB)
1 The right to confrontation ensures a defendant's opportunity to demonstrate any

2 possible bias of the adverse witness as well as his motivation for testifying. Davis v.
3 Alaska, 415 U.S. at 316 (The partiality of a witness is . . . always relevant as
4 discrediting the witness and affecting the weight of his testimony. (quoting 3A J.
5 Wigmore, Evidence 940, at 775 (Chadbourne rev. 1970))). A violation of the
6 Confrontation Clause may occur where the trial court forecloses all inquiry into a
7 witness bias. See Fowler, 421 F.3d at 1041. But the court may impose limitations on
8 cross-examination that are reasonable and not arbitrary or disproportionate to the
9 purposes they are designed to serve. Id. at 1037 (quoting Van Arsdall, 475 U.S. at 679;
10 and Michigan v. Lucas, 500 U.S. 145, 151 (1991) (internal quotation marks omitted)).
11 Violations of the Confrontation Clause are subject to harmless-error analysis. See,
12 e.g., Lilly v. Virginia, 527 U.S. 116, 139-40 (1999); Coy v. Iowa, 487 U.S. 1012, 1021-
13 22 (1988); Delaware v. Van Arsdall, 475 U.S. at 683-84; Winzer v. Hall, 494 F.3d 1192,
14 1201 (9th Cir. 2007) (Violation of the Confrontation Clause is trial error subject to
15 harmless-error analysis because its effect can be quantitatively assessed in the context of
16 other evidence presented to the jury.) (citations omitted). [T]he denial of the
17 opportunity to cross-examine an adverse witness does not fit within the limited category
18 of constitutional errors that are deemed prejudicial in every case. Van Arsdall, 475 U.S.
19 at 682 (citing Harrington v. California, 395 U.S. 250, 253-54 (1969)).
20 The trial court permitted defense counsel to impeach Lopez on several subjects.
21 The jury knew that Lopez made statements to the police to receive a lighter sentence for
22 his crime:
23 Q. When you were at the police station, you had just been arrested for
vandalism, right?
24
25 A. Right.
26
Q. And it was then the detectives told you that you had to help them with a
27 case so youd get less jail time or youd help yourself, right? Do you
understand the question?
28
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1
A. Yes, but that can you repeat that again?
2
3 Q. Yes, Andres, I will.
It was at that time at the police station that you were worried about how
4
much time in jail you might have to do, werent you?
5
A. Yes.
6
7 Q. And you were visited by some detectives, and, as you stated in the
interview, you wanted to when you were talking to them, you were
8
thinking about how much jail time you might have to do, right?
9
A. I was thinking?
10
11 Q. Yeah.
12
A. Well, yes.
13
14 (Lodgment No. 3, Rep.s Appeal Tr. vol. 12, 1291-92, Apr. 8, 2011.) Petitioners counsel
15 was also allowed to explore whether Lopez was truthful in his police interview about
16 what he saw on the day of the shooting:
17 Q. And as indicated by the transcript, one of the things you told [the police]
is that you saw Smokey when he got shot, right?
18
19 A. Right.
20
Q. And then you indicated to [the prosecutor] that that wasnt true, you
21 didnt actually see Smokey when he got shot; you just told him that because
they told you to say that, right?
22
23 [The Prosecutor:] Objection.
24
25 (Id. at 1292.) The jury was made aware of his prior inconsistent statements and the
26 benefit Lopez expected to gain by speaking to the police. From these facts,
27 reasonable jurors could infer Lopezs potential bias and motive in testifying. There
28 is no constitutional violation as long as the jury receives sufficient information to
41
14cv2890 BAS (RBB)
1 appraise the biases and motivations of the witness. United States v. Shabani, 48
2 F.3d 401, 403 (9th Cir. 1995) (quoting United States v. Feldman, 788 F.2d 544,
3 554 (9th Cir. 1986)).
4 The trial court did not improperly restrict further questioning of Lopez. See
5 Wood v. Alaska, 957 F.2d at 1551-52 (explaining that relevant cross-examination
6 may be excluded if its probative value is outweighed by other interests). The jury
7 heard sufficient testimony to assess Lopezs cognitive abilities and decide whether
8 his confusion and inability to remember were attributable to poor memory or being
9 deliberately evasive. Dominguez does not explain how the excluded additional
10 impeachment material would give the jury a significantly different impression of
11 [Lopez's] credibility. Van Arsdall, 475 U.S. at 680. Petitioner cannot show that
12 he was prohibited from engaging in otherwise appropriate cross-examination.
13 See id.
14 Moreover, under federal law, even if constitutional error is found, a federal
15 habeas court must also assess the prejudicial impact of the error under the Brecht
16 standard. Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (citing Brecht v. Abrahamson,
17 507 U.S. 619 (1993)). Habeas relief is warranted only if the error had a
18 substantial and injurious effect or influence in determining the jury's verdict.
19 Brecht, 507 at 637-38.
20 The state court concluded that given the showing in the record that Andres
21 was repeatedly impeached by the defense, . . . any alleged error in limiting his
22 lengthy cross-examination was harmless. (Lodgment No. 7, People v.
23 Dominguez, No. D060019, slip op. at 47.) There is no indication here that the jury
24 lacked sufficient information to evaluate the credibility of Andres Lopez.
25 Dominguez was afforded the opportunity to cross-examine Lopez, and the Sixth
26 Amendment guarantees that opportunity, not the right to cross-examine in
27 whatever manner Petitioner deems appropriate. See Kentucky v. Stincer, 482 U.S.
28 at 739. Based on the foregoing, the Court concludes that the California Court of
42
14cv2890 BAS (RBB)
1 Appeals rejection of Petitioner's Confrontation Clause claim neither was contrary

2 to, nor involved an unreasonable application of, clearly established federal law, as
3 determined by the United States Supreme Court. Accordingly, Petitioners second
4 claim should be DENIED.
5 IV. CONCLUSION
6 The Court submits this Report and Recommendation to United States District
7 Judge Cynthia Bashant under 28 U.S.C. 636(b)(1) and Local Civil Rule HC.2 of the
8 United States District Court for the Southern District of California. For the reasons
9 outlined above, IT IS HEREBY RECOMMENDED that the district court issue an Order
10 (1) approving and adopting this Report and Recommendation and (2) directing that
11 Judgment be entered granting the Petition.
12 IT IS ORDERED that no later than September 20, 2016, any party to this action
13 may file written objections with the Court and serve a copy on all parties. The document
14 should be captioned Objections to Report and Recommendation.
15 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the
16 Court and served on all parties no later than October 4, 2016. The parties are advised that
17 failure to file objections within the specified time may waive the right to raise those
18 objections on appeal of the Courts order. See Turner v. Duncan, 158 F.3d 449, 455 (9th
19 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).
20 Dated: August 23, 2016
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14cv2890 BAS (RBB)

Dominguez, Florencio - Report and Recommendation Granting Writ of Habeas Corpus

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Case 3:14-cv-02890-BAS-RBB Document 9 Filed 08/23/16 Page 1 of 43

1 The subsequent procedural history was described by the California Court of

1 II. STANDARD OF REVIEW

1 801-06 (1991). Where a state court's decision is unaccompanied by an explanation, the

1 (Lodgment No. 7, People v. Dominguez, No. D060019, slip op. at 13 (alterations in

1 E. Relief Under AEDPA

1 unreasonable determination of facts. It also resulted in a denial of Dominguezs

25 The Court: Not sufficient to warrant impeachment. Sustained.

1 limiting his lengthy cross-examination was harmless. (See People v.

1 The right to confrontation ensures a defendant's opportunity to demonstrate any

1 Appeals rejection of Petitioner's Confrontation Clause claim neither was contrary

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