Dale Ray Hurd v. Ralph Diaz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DALE R. HURD, ) Case No. CV 20-3715-CJC (JPR) 11 ) Petitioner, ) 12 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 13 ) MAGISTRATE JUDGE RALPH DIAZ, CDCR Secretary, ) 14 ) Respondent. ) 15 ) 16 17 The Court has reviewed the Petition, records on file, and 18 Report and Recommendation of U.S. Magistrate Judge, which 19 recommends that judgment be entered denying the Petition and 20 dismissing the action with prejudice. See 28 U.S.C. § 636(b)(1). 21 Petitioner filed objections to the R. & R. on October 4, 2021; 22 Respondent did not reply. 23 Most of Petitioner’s objections simply reargue points made 24 in his Petition. A few warrant discussion, however. Petitioner 25 argues that the state court of appeal’s reasoned decision 26 rejecting his second ground for relief — that he was denied the 27 right to testify in his own defense by the exclusion of his 28 testimony about his wife’s alleged statements (see Pet. at 6; 1 id., Mem. P. & A. at 53-64)1 — is entitled to no deference 2 because the court of appeal did not address the federal component 3 of the claim (see Objs. at 3-5). 4 This argument is meritless because the court of appeal 5 explicitly found that excluding the testimony did not violate his 6 “constitutional [due process] right” to present a complete 7 defense or testify on his own behalf. (See Lizarraga, Lodged 8 Doc. 8 at 34 (alteration in original).)2 What’s more, in 9 reaching its finding that any alleged error was harmless, the 10 court of appeal applied the prejudice standards for federal 11 constitutional errors and state-law errors. (See id. at 37 12 (assuming error of constitutional magnitude but finding no 13 resulting prejudice under Chapman v. California, 386 U.S. 18, 24 14 (1967)); id. at 34-37 (holding that trial court misapplied state 15 law in excluding testimony but finding no resulting prejudice 16 under People v. Watson, 46 Cal. 2d 818, 836 (1956)). Indeed, as 17 noted in the 2017 Report and Recommendation rejecting this same 18 claim, “[t]he [c]ourt of [a]ppeal found that the trial court’s 19 ruling was error but, ‘under the facts of this case, it was not 20 prejudicial under any standard of review.’” (See Lodged Doc. 1 21 at 4 (quoting Lizarraga, Lodged Doc. 8 at 32) (emphasis 22 23 24 1 For nonconsecutively paginated documents, the Court uses the 25 pagination generated by its Case Management/Electronic Case Filing 26 system. 27 2 Citations to documents in “Lizarraga” refer to those lodged or filed in Hurd v. Lizarraga, No. CV 16-3427-CJC (JCG) (C.D. Cal. 28 filed May 18, 2016). 2 1 added).)3 2 In a related argument, Petitioner contends that the 2017 3 Report and Recommendation’s conclusion that he suffered no 4 prejudice from the testimony’s being excluded is erroneous 5 because it was based in part on witness testimony that 6 incorrectly and improperly relayed out-of-court statements from 7 his son, Charlie. (See Objs. at 25-30.) The Court already 8 addressed this objection when it accepted the 2017 Report and 9 Recommendation, explaining why it was meritless. (See Lizarraga, 10 Order Accepting R. & R. at 1-2, ECF No. 34.) 11 Petitioner offers no good reason to revisit it now. He 12 claims the prosecutor “conce[ded]” that in fact Charlie never 13 heard his mother say she refused to sign the divorce papers, and 14 therefore the three witnesses’ testimony that Charlie told them 15 that was “misleading.”4 (Objs. at 29; see also id. at 25-31.) 16 But the prosecutor made no such concession. Instead, he merely 17 acknowledged that based on a witness’s testimony at what appears 18 19 3 As noted in the R. & R., the Ninth Circuit denied Petitioner’s request for a certificate of appealability and the 20 Supreme Court denied his petition for writ of certiorari. (R. & R. at 4.) 21 22 4 In truth, only one witness – Charlie’s uncle – testified that Charlie said he had heard his mother refuse to sign the 23 divorce papers. (Compare Lizarraga, Lodged Doc. 3, 2 Rep.’s Tr. at 1036 (Charlie’s uncle stating that he heard Charlie tell 24 investigating detective that he “heard [his mother] say she wouldn’t sign the papers”), with id. at 1022 (Charlie’s neighbor 25 testifying that after shooting, Charlie “said that Daddy tried to 26 get Mommy to write something”) & (id., 7 Rep.’s Tr. at 2541 (investigating detective testifying that “Charlie told me that 27 Daddy was upstairs and Mommy was downstairs. Daddy called Mommy upstairs to write the papers. He told me he heard a gunshot from 28 upstairs, heard Mommy scream, come down the stairs by herself.”).) 3 1 to have been a hearing during Petitioner’s second trial, in 1994, 2 Charlie possibly only surmised that his mother refused to sign 3 the divorce papers rather than having heard her refuse to do so. 4 (See id. at 76 (“That is his conclusion. I mean, he’s digesting 5 information and that is his conclusion.”).)5 But during that 6 same hearing, another witness – Charlie’s uncle – testified that 7 he heard Charlie tell an investigating detective that in fact he 8 heard his mother refuse to sign the papers. (Id. at 68.) The 9 uncle’s testimony at Petitioner’s third trial was consistent with 10 his 1994 testimony. (See Lizarraga, Lodged Doc. 3, 2 Rep.’s Tr. 11 at 1036.) Petitioner has not shown that that testimony was false 12 or that the prosecutor conceded that it or any of the witnesses’ 13 testimony concerning Charlie’s out-of-court statements about his 14 mother’s murder was false or misleading. 15 Finally, Petitioner continues to maintain that California’s 16 financial-gain special-circumstance statute, California Penal 17 Code section 190.2(a)(1), is unconstitutionally vague. (See 18 Objs. at 17-24.) The R. & R. convincingly explained why it is 19 not (see R. & R. at 12-14), and moreover after the R. & R. was 20 issued the Ninth Circuit so held, foreclosing Petitioner’s claim, 21 see Noguera v. Davis, 5 F.4th 1020, 1053-54 (9th Cir. 2021). 22 23 5 The Court is unable to set forth the prosecutor’s complete 24 statement on this issue because the relevant exhibit to Petitioner’s Objections includes only a portion of it. (See Objs. 25 at 76.) It is clear from the portion of the transcript that 26 Petitioner has included, however, that the prosecutor had additional thoughts on the issue. (See id.) Indeed, the 27 transcript cuts off precisely when the prosecutor was in the process of identifying “the appropriate way to handle” the issue. 28 (Id.) 4 1 Having reviewed de novo those portions of the R. & R. to 2||}which Petitioner objects, see 28 U.S.C. § 636(b) (1) (C), the Court 3 || accepts the findings and recommendations of the Magistrate Judge. 4]| It THEREFORE IS ORDERED that Judgment be entered denying the 5 |] Petition and dismissing this action with prejudice. 6 7 parep: Pecember LQ, 2027 Ls LEE CORMAC J. CARNEY 8 U.S. DISTRICT JUDGE 9 10 1.3 14 16 17 18 20 A. 22 23 24 25 26 27 28