Plascencia v. Alameida , 467 F.3d 1190 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARA PLASCENCIA, 
Petitioner-Appellant, No. 05-56458
v. D.C. No.
EDWARD S. ALAMEIDA, JR.,  CV-03-02128-
Director, California Department of IEG/WM
Corrections, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Argued and Submitted
June 8, 2006—Pasadena, California
Filed November 3, 2006
Before: Stephen Reinhardt and Stephen S. Trott,
Circuit Judges, and James L. Robart,* District Judge.
Opinion by Judge Trott
*The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
18149
PLASCENCIA v. ALAMEIDA 18153
COUNSEL
Allen R. Bloom, San Diego, California, for the petitioner-
appellant.
Marilyn L. George, Deputy Attorney General, San Diego,
California, for the respondent-appellee.
OPINION
TROTT, Circuit Judge:
Petitioner Mara Plascencia appeals the district court’s
denial of her petition for a writ of habeas corpus. Plascencia
18154 PLASCENCIA v. ALAMEIDA
was convicted by a jury in state court of the murder of Teresa
Silva and sentenced to a prison term of fifty years to life.
Plascencia claims the trial court (1) violated her Sixth
Amendment right to confront adverse witnesses when it
restricted cross-examination of three witnesses, (2) erred in
admitting impermissible evidence, and (3) imposed an uncon-
stitutional sentence enhancement. In addition to these claims,
Plascencia avers her trial counsel was ineffective for failing
to investigate the criminal background of two jailhouse infor-
mants and for failing to object to the admission of certain evi-
dence. We disagree and affirm the district court’s denial of
Plascencia’s habeas petition.
I
In July 1998, the victim Teresa Silva and the father of her
children, Manuel Galdamez, became involved in a dispute
with a person whose car was blocking the couple’s garage.
The person was related to Plascencia. Later that day, Plascen-
cia and her cousin, “Yeni” Haro, went to Silva and Gal-
damez’s apartment, angry that their relative had been
“disrespected.” Yeni, Silva, and Galdamez lived in the same
complex. Plascencia and Yeni challenged Silva to a fight, and
the three fought just outside Silva’s residence — complete
with hair pulling and fisticuffs. Later that day, in yet another
battle, Silva and her sisters Joanna and Lisa fought with Plas-
cencia, Yeni, and Yeni’s mother. Silva was armed with a
baseball bat which she used against Yeni’s mother, knocking
her unconscious.
Some three months later, Silva and Galdamez were home
with their three children, Jesse, Ruben, and Maria. At approx-
imately 8:00 p.m., Galdamez and Ruben went to the garage.
Jesse and Maria remained in the apartment with Silva. While
Galdamez and Ruben were gone, someone knocked on the
door of the apartment. Jesse, who was ten years old at the
time, answered the door. The person at the door told Jesse to
get his mother and waited at the door while Jesse complied.
PLASCENCIA v. ALAMEIDA 18155
When Silva approached the door, followed by Jesse’s sister,
the visitor shot her twice at close range. The shooter then fled.
Galdamez heard the gun shots from the garage and ran back
to the apartment. When his father returned, an astute Jesse
called 911 to report the shooting. During that call Jesse did
not name the assailant but described her as a female having
blonde hair with dark streaks. Galdamez saw Silva and asked
Jesse who shot her. According to Galdamez, Jesse answered,
“Mara [Plascencia] . . . [t]hat girl that’s always with [Yeni].”
When the police arrived, Officer Kathleen Bergman inter-
viewed Galdamez. Galdamez described to Officer Bergman
the July incidents involving Silva, Mara Plascencia, and Yeni
Haro and then stated, “Yeni did it.” Galdamez made no men-
tion at that time of Jesse’s statement implicating Plascencia.
Several police officers escorted Jesse and his siblings out
of their apartment to the apartment of a neighbor, Christal
Robertson. At Robertson’s apartment, Jesse described the
shooting to Officer Rizzo, who asked Jesse whether he knew
who the shooter was and whether the shooter was someone in
the apartment complex. Jesse responded, “Yeni.” Officer
Rizzo showed Jesse a picture of Yeni and asked him whether
the person in the picture shot his mother; Jesse answered,
“No, that’s Yeni.” Shortly thereafter, another officer, Officer
Gill, interviewed Jesse. Jesse initially told Officer Gill that he
was unsure who shot his mother, recounting instead that Silva
was in a fight with Yeni several months before. Later in the
interview, however, Jesse told Gill that Plascencia, not Yeni,
shot his mother.
Detective Gloria Boyce also interviewed Jesse. Jesse told
Detective Boyce that “Mara” or “Maraca” shot his mother.
Jesse said he recognized Mara Plascencia from the alterca-
tions in July and from her association with Yeni. Detective
Boyce then showed Jesse a picture of Yeni, and Jesse said,
“This is Yeni, and she is not the one who shot my mom.”
Later that evening, Detective Boyce again interviewed Jesse
18156 PLASCENCIA v. ALAMEIDA
and showed him a picture of Plascencia, whom Jesse identi-
fied as the shooter.
Silva was pronounced dead at 8:40 p.m. that night from a
gunshot wound to her chest. A single bullet, which could have
been fired from either a .357 or .38 caliber handgun, was
recovered from Silva’s kitchen.
At approximately 1:30 a.m. the next morning, the police
went to Plascencia’s apartment, which was located just min-
utes from the apartment in which Silva was killed. Plascencia
was not at home, but her stepfather told police she had been
home at approximately 7:00 p.m. or 7:30 p.m., he did not
know what time she left, and when he saw her she had auburn
colored hair. Plascencia’s boyfriend, whom the police also
contacted, attempted unsuccessfully to page her numerous
times.
At 6:00 p.m. on the day after Silva’s murder, Plascencia
turned herself in to the San Diego Police Department. She
was detained at the Las Colinas Women’s Facility and placed
in a cell with three other inmates, including Jeannie Johnson
and Debra Moore. Subsequently, in separate tape recorded
interviews, Johnson and Moore claimed that while in jail,
Plascencia had confessed to both of them at the same time to
killing Silva. According to Johnson and Moore, who were
clearly angling for a deal on their own cases, the killing
occurred because Silva had “messed with her family.” There
were, however, suspicious discrepancies in their stories, the
kind of contextual discrepancies that suggest fabrication.
Johnson claimed that Plascencia made the confession in the
morning at about 8:00 or 9:00 a.m. Moore said that Plascencia
made the confession after lunch in the early afternoon. Moore
stated that Plascencia was laughing when she demonstrated
the shooting by holding up an imaginary gun in her left hand.
Moore also told police that Plascencia used a .357 caliber
handgun, drove away from the scene, and that Plascencia
acknowledged being under the influence of a drug called
PLASCENCIA v. ALAMEIDA 18157
“roaches.” Johnson said, however, that Plascencia was not
laughing but rocking and banging her head against the wall
when she made the confession. Johnson said nothing about
the caliber of gun or of Plascencia’s getaway. Both Johnson
and Moore stated that Plascencia was acting strangely while
in custody.
Moore, who in the past had “snitched” in exchange for
assistance, requested help from the district attorney’s office to
obtain a parole transfer. Although she stated to the interview-
ing officer that she did not want them to feel like “I’m asking
for a deal or nothing, which I’m not,” Moore did say that she
wanted to see about “getting the case against her dropped.”
Moore even tried to get an assurance from the investigating
officer that her story was the one the prosecution was going
to use.
After giving her original statement to the investigating offi-
cer, Moore later called him and said that Plascencia had also
told her the gun she used was hidden in the bedroom or the
basement of Plascencia’s mother’s house. Moore told the offi-
cer that she had initially withheld evidence about the gun in
the house. She told a second officer that she wanted her case
dropped. She informed the second officer that she would not
testify against Plascencia and then go to prison with her.
Moore said that if she did, the moment she got to prison she
was going to get a “snitch jacket.” Moore indicated also that
Johnson, because of her “snitching,” was going to have a lot
of trouble when she went to prison.
On November 20, 1998, Plascencia was charged by infor-
mation in San Diego Superior Court. The Information charged
Plascencia with murdering Silva in violation of California
Penal Code § 187(a). The Information alleged also that Plas-
cencia had used a firearm during the murder and inflicted
great bodily injury or death in violation of California Penal
Code §§ 12022.5(a)(1) and 12022.53(d).
18158 PLASCENCIA v. ALAMEIDA
At a preliminary hearing, the prosecution called Jeannie
Johnson and Debra Moore to the stand to testify about Plas-
cencia’s supposed confession. Johnson recounted a statement
by Plascencia in which Plascencia supposedly admitted shoot-
ing the victim twice after asking a little boy to call his mother
to the door. Moore, however, took a different tack. Consistent
with her threat that she would not testify and then go to jail
with Plascencia, Moore claimed a lapse of memory when she
took the stand. Nonetheless, Plascencia was held to answer,
and the case proceeded to trial.
At trial, the inconsistent statements and identification Jesse
gave to the investigating officers at the time of the incident
were admitted into evidence, over objection, through the
investigating officers. The officers further testified as to the
inconsistency between Jesse’s initial statement to his father,
Galdamez — that Plascencia was the shooter — and Gal-
damez’s subsequent statement to Officer Bergman that “Yeni
did it.”
After the investigating officers finished testifying, the pros-
ecution called on Galdamez to testify to the jury. On cross-
examination defense counsel asked Galdamez who he told the
investigating officer “did this.” The prosecution objected and
the court sustained the objection. However, when confronted
later in cross-examination with his statement, “Yeni did it,”
Galdamez responded that he did not remember making the
statement.
The prosecution then called Jesse to the stand.1 On the
stand, Jesse identified Plascencia as the person who shot his
mother. In addition to Jesse and Galdamez, the prosecution
called on Robertson, the neighbor, and Silva’s sister, Joanna,
to testify. On cross examination, defense counsel attempted to
1
Jesse’s sister, Maria, also testified. She witnessed the actual shooting
and said that a woman did it, but she did not get a good look at the
woman’s face.
PLASCENCIA v. ALAMEIDA 18159
question Robertson regarding what Jesse had told him, but the
trial court sustained objections to this line of questioning as
hearsay. Defense counsel was also not permitted to question
Joanna regarding her prior convictions for drug possession
and theft because defense counsel admitted that he could not
prove the existence of the convictions.
After hearing from these witnesses, the prosecutor called
Jeannie Johnson and Debra Moore to testify. At this time,
Johnson and Moore were incarcerated in Chowchilla State
Prison on felony convictions involving cocaine, facts brought
out by the prosecutor on direct examination. Both jailhouse
informants testified repeatedly that they could not remember
or did not know anything about the case, and that they did not
remember being interviewed about Silva’s murder. The prose-
cutor attempted to refresh their memories by playing the
beginning portions of their taped interviews. When their
memories were not refreshed, with Johnson denying that it
was her voice on the tape, the prosecutor gave up trying to
elicit evidence from them, and defense counsel had an oppor-
tunity to cross-examine.
Defense counsel declined the opportunity to cross-examine
Moore. Defense counsel asked Johnson only six questions.
The first four questions pointedly addressed Johnson’s previ-
ous drug convictions. In the last two questions, defense coun-
sel asked Johnson if Plascencia had confessed to her. Johnson
responded that she had not.
The prosecution then called the officers who had inter-
viewed Johnson and Moore when they gave their separate
statements regarding Plascencia’s alleged confession. Plas-
cencia’s attorney attempted unsuccessfully to exclude these
statements as hearsay, saying, “In fact, I think that if the Court
does not sustain my objection, it rises to the level of a due
process violation under the Constitution of the United States,”
citing the Confrontation Clause. Through these officers, the
prosecution was able, over the continuing objection of the
18160 PLASCENCIA v. ALAMEIDA
defense, to play the tape recordings of the interviews to the
jury.
In an attempt to corroborate information in Johnson’s and
Moore’s taped statements, the prosecuting attorney introduced
evidence that Plascencia had Rohypnol, the active ingredient
in the drug “roaches,” in her blood stream when she was
arrested. A toxicologist proffered expert testimony regarding
the drug’s effects and its common methods of use. Plascen-
cia’s defense counsel objected unsuccessfully to the expert
testimony on relevance grounds.
In a clear attempt to explain how the two jailhouse infor-
mants obtained, without talking to her, the information in
Plascencia’s alleged confessions, defense counsel called
Edward Hayes as a witness. Hayes was a friend of Silva’s par-
ents. Hayes testified that he learned about the murder from
Silva’s parents and from the television and later talked about
the murder with his girlfriend, Kim Jones, who was incarcer-
ated at the same institution as Johnson, Moore, and Plascen-
cia. Thus, defense counsel suggested that Plascencia had not
confessed to Moore and Johnson; rather, the two jailhouse
informants had obtained sufficient information from Kim
Jones to piece together and to fabricate a confession to trade
to the prosecution for leniency in their own cases.
During closing arguments, the prosecutor attempted to
explain Jesse’s inconsistent identifications of the person who
shot his mother. The prosecutor instructed the jury to consider
what Jesse had been through and how difficult it would be to
witness your mother’s murder and then have to recount the
story during a criminal trial.2
2
Plascencia’s attorney presented an expert witness, Dr. Scott Fraser,
whose testimony was designed to undercut the child Jesse’s eyewitness
identification and to support a motion to exclude the identification as
untrustworthy. The motion was denied.
PLASCENCIA v. ALAMEIDA 18161
On July 23, 1999, the jury found Plascencia guilty on all
counts. The superior court sentenced Plascencia to fifty years
to life in state prison: twenty-five years to life for murder and
a consecutive twenty-five years to life term for the firearm use
enhancement. On May 3, 2002, the California Court of
Appeal affirmed Plascencia’s conviction and sentence. That
same day, without written analysis or citation of authority, the
California Court of Appeal denied Plascencia’s related state
petition for a writ of habeas corpus, which included a claim
of ineffective assistance of counsel. On July 31, 2002, the
California Supreme Court issued a summary denial of Plas-
cencia’s petitions for review of her direct appeal and her state
habeas petition.
On October 29, 2003, Plascencia filed a petition for a writ
of habeas corpus in the district court. She raised six claims.
Plascencia argued that the trial court (1) violated her Sixth
Amendment right to confront adverse witnesses when it
restricted cross-examination of three witnesses — Galdamez,
Robertson, and Joanna Silva; (2) erred in admitting sympathy
and victim impact evidence; (3) erred in admitting highly
prejudicial and improper evidence of Plascencia’s drug use;
(4) erred in admitting improper opinion testimony in which
police officers suggested Plascencia evaded arrest; and (5)
imposed an unconstitutional sentence enhancement. She fur-
ther argued (6) that her attorney rendered ineffective assis-
tance of counsel when he failed to investigate the
“background, motives, and interests” of Jeannie Johnson and
Debra Moore, the jailhouse informants, and failed to object to
testimony regarding sympathy and victim impact evidence,
evidence of Plascencia’s drug use, and police opinion testi-
mony.
On June 2, 2005, the magistrate judge issued a report rec-
ommending the denial of Plascencia’s petition. The district
judge adopted the magistrate judge’s report and recommenda-
tion. Plascencia timely appealed.
18162 PLASCENCIA v. ALAMEIDA
II
We review de novo a district court’s decision to grant or
deny a 28 U.S.C. § 2254 habeas petition. Little v. Crawford,
449 F.3d 1075, 1079 (9th Cir. 2006). Plascencia contends that
her petition for a writ of habeas corpus should have been
granted for the same six reasons submitted to the district
court.
We must “defer to the state court’s determination of the
federal issues unless that determination is ‘contrary to, or
involved an unreasonable application of, clearly established
Federal law.’ ” Himes v. Thompson, 336 F.3d 848, 852 (9th
Cir. 2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 71
(2003)). When reviewing a state court’s summary denial of a
habeas petition, we “look through” the summary disposition
to the last reasoned decision. See Shackleford v. Hubbard, 234
F.3d 1072, 1079 n.2 (9th Cir. 2000) (citing Ylst v. Nunne-
maker, 501 U.S. 797, 803-04 (1991)).
III
A
We first address Plascencia’s sixth claim, that her trial
counsel rendered ineffective assistance when he (1) failed to
investigate the backgrounds, motives, and interests of Johnson
and Moore, and (2) failed to object to the sympathy/victim
impact, drug use, and police opinion testimony. Because there
is no reasoned state court decision denying this claim, we
“perform an independent review of the record to ascertain
whether the state court decision was objectively unreason-
able.” Himes, 336 F.3d at 853 (internal quotation marks and
citations omitted). Accordingly, with regard to Plascencia’s
claim of ineffective assistance of counsel, the only claim not
addressed by a reasoned state court opinion, we will grant
Plascencia relief only if our independent review establishes
that the denial of that claim was an objectively unreasonable
PLASCENCIA v. ALAMEIDA 18163
application of Strickland v. Washington, 466 U.S. 668, 687
(1984). In so doing, we examine the complete state court
record of the trial.3
[1] Per Strickland, to establish ineffective assistance of
counsel, Plascencia must show that (1) her counsel’s repre-
sentation was deficient, falling “below an objective standard
of reasonableness,” and (2) the deficient representation preju-
diced the outcome of her trial, i.e., there is a reasonable prob-
ability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. Williams, 529
U.S. 362, 390-91 (2000).
1.
[2] We begin by examining Plascencia’s claim that her
counsel’s representation was deficient for failing to investi-
gate the “background, motives, and interests” of Johnson and
Moore, the jailhouse informants. Plascencia claims that had
trial counsel done so, he would have discovered the snitches
were criminals, abused drugs, and were generally untrustwor-
thy. In Sanders v. Ratelle, we held that an attorney is ineffec-
tive where the attorney neither conducted a reasonable
investigation nor had a strategic reason for failing to do so. 21
F.3d 1446, 1456 (9th Cir. 1994) (citing Hendricks v. Vasquez,
974 F.2d 1099, 1109 (9th Cir. 1992)). Specifically, Plascencia
alleges that her attorney “ignored the testimony of the
snitches knowing that the testimony of the snitches would, in
some form or another, be admitted before the jury.” The
record, however, does not support this argument. In fact,
when his motion to exclude the informants’ out-of-court state-
ments failed, counsel mounted a sustained frontal attack on
the informants and their statements. Instead of merely attack-
ing the general credibility of Johnson and Moore, whose per-
3
Neither side has graced us with defense counsel’s opening statement,
which would be germane to Plascencia’s claim of deficient representation.
The trial transcript simply says, “reported, but not transcribed herein.”
18164 PLASCENCIA v. ALAMEIDA
sonal veracity was already put at issue by (1) their own
conflicting statements, (2) the fact in evidence that they were
in jail on felony controlled substance offenses of their own,
and (3) the testimony of the officers who took their initial
statements implicating Plascencia, Plascencia’s counsel dem-
onstrated how Johnson and Moore could have pieced together
the information they provided to the police without talking to
Plascencia. Plascencia’s counsel elicited testimony from
Edward Hayes that he knew Silva’s parents, had spoken with
them about the murder, had watched television coverage of
the case, and had provided that information to his girlfriend,
Kim Jones, who was incarcerated in the same cell with John-
son, Moore, and Plascencia. Counsel argued this point to the
jury, pointing out also that Johnson received information
about the shooting from her father — as revealed by her taped
statement.
[3] By strategically taking this approach to the testimony,
Plascencia’s counsel was able to counter the prosecution’s
closing argument of “how else would Moore and Johnson
have this information” unless it came from the defendant.
Given the fact that the prosecution made such an argument,
and the unpredictable nature of Johnson and Moore as wit-
nesses on direct and cross-examination, Plascencia’s coun-
sel’s decision to focus on the lack of integrity and the
suspicious nature of the information was not only strategic,
but professional and intelligent.
Moreover, Plascencia’s counsel took the extraordinary step
before trial of securing a “keep separate” order with respect
to his client and Johnson and Moore during their time in jail
prior to the trial. As he explained to the jury in closing argu-
ment, this step was designed to prevent the two witnesses
from having an opportunity before trial to iron the inconsis-
tencies out of their respective stories and to claim new admis-
sions or threats from the defendant. This tactic is the mark of
a wise and experienced lawyer, not one who has no educated
PLASCENCIA v. ALAMEIDA 18165
feel for the challenging task of attacking alleged confessions
related by jailhouse informants.
To appreciate counsel’s strategy and tactics with respect to
his defense against Johnson and Moore, one need only to
review his closing argument to the jury, in which he tied
together his attacks on their credibility and on their character.
Counsel began by reviewing California’s jury instruction
requiring the jury to view “with caution” any evidence of an
alleged oral confession made out of court. He then reviewed
in detail how Johnson and Moore could have concocted infor-
mation about the crime, using information from Edward
Hayes through cellmate Kim Jones, pointing out that Moore
said on the tape recording that she had talked about the crime
with Kim Jones, who had told Moore, “I’m going to use this
to get out of my case,” which is precisely what jailhouse
informants bent on securing their own freedom at any price
frequently do. See Commonwealth of N. Mariana Islands v.
Bowie, 243 F.3d 1109, 1123 (9th Cir. 2001); U.S. v. Bernal-
Obeso, 989 F.2d 331, 334 (9th Cir. 1993). Counsel then
explained how a jailhouse informant uses false information as
barter or currency to obtain leniency in her own case, a pro-
cess which, given the nature of criminal informants, suggests
a motive to manufacture evidence. This characteristic of jail-
house informants explains the standard jury instruction advis-
ing jurors to examine with great care the testimony of a
witness who might receive value in return for testimony. See
9th Cir. CRIM. JURY INSTR. 4.9 (2003); CALJIC 3.20.4
4
CALJIC 3.20
The testimony of an in-custody informant should be viewed
with caution and close scrutiny. In evaluating this testimony, you
should consider the extent to which it may have been influenced
by the receipt of, or expectation of, any benefits from the party
calling that witness. This does not mean that you may arbitrarily
disregard this testimony, but you should give it the weight to
which you find it to be entitled in the light of all the evidence in
this case.
18166 PLASCENCIA v. ALAMEIDA
Counsel reminded the jurors of the base character and
background of the informants:
Now just to be clear — remember. That’s why you
view these admissions and confessions with caution,
just for that reason. Remember where this is coming
from. It’s not coming from good folks like you. It’s
coming from people who take drugs. It’s coming
from people who don’t care about anyone else. It’s
coming from people who time and time again have
been inside jail. You don’t know how they think.
You don’t. Don’t think well of them. They see a
newbie on the block, oh boy, are they going to have
fun. And that’s what they did.
Then, counsel attacked Johnson’s and Moore’s stories by
reviewing in detail the glaring inconsistencies between them,
and offered an explanation for their refusal to testify during
the trial:
Now about inconsistencies between Jeannie Johnson
and Debra Moore? Debra Moore says, “She was
laughing while she was telling us this story.” Jeannie
Johnson says, “She was smiling and rocking back
and forth.” Debra Moore says someone drove her
there. Jeannie Johnson says no one drove her there;
never mentioned that. Debra Moore says it’s a three
fifty-seven. Jeannie Johnson says she never men-
tioned a gun. Debra Moore says Mara told them this
story after lunch. We know what time lunch is; we
heard it. Jeannie Johnson says it was after breakfast.
“In-custody informant” means a person, other than a codefen-
dant, percipient witness, accomplice, or coconspirator whose tes-
timony is based upon statements made by a defendant while both
the defendant and the informant are held within a correctional
institution.
PLASCENCIA v. ALAMEIDA 18167
Debra Moore says, “She demonstrated the shooting
in front of us.” Jeannie Johnson doesn’t remember
any awful, grotesque demonstration.
Now we’ve been told information that snitches don’t
tell the truth, they say, “I don’t remember,” when
they take the stand because they’re so scared. Well
what about all the stories we hear about these
snitches testifying? Are they not scared? Why do
they do it all the time? Snitches testify. You know
the number one biggest reason for a snitch not testi-
fying? Because they know they’re not telling the
truth, and they know they’re going to get in big trou-
ble. We also know that snitches love to embellish.
This is a textbook example of exposing fabricated testimony.
The essence of the story recounted by two witnesses to the
same event may be the same, but it comes apart like a dollar
watch when details are explored, details that fabricators do
not anticipate, such as what time it was, who was sitting
where, how was she behaving, etc.
In addition, through police witnesses Renee Hill and Oscar
Valdez, counsel demonstrated that Moore had deceived the
authorities on material issues and most probably lied in court.
Finally, from counsel’s use of police reports and other discov-
ery materials, it is clear that he was well prepared for the trial
and to cross-examine the prosecution’s witnesses in an
attempt to unmask them as liars.
[4] In summary, and contrary to Plascencia’s claim, counsel
did not “ignore the testimony of the snitches” — far from it.
This said, we certainly do not disagree that a failure to look
into the background of an informant could constitute deficient
representation under appropriate circumstances, but this is not
such a case.
Moreover, the supposedly overlooked background informa-
tion, to which Plascencia now refers, about Johnson’s and
18168 PLASCENCIA v. ALAMEIDA
Moore’s general untrustworthiness, was either known by the
jury, obvious from the testimony, or of minimal additional
probative value, if any. The absence of this marginal back-
ground information now claimed to be consequential is cer-
tainly not significant enough to undermine confidence in the
outcome of the trial.
[5] Accordingly, we determine that Plascencia’s counsel’s
representation met Strickland’s standard of reasonableness,
and even if we were to assume it did not, we would find no
prejudice.
2.
[6] Plascencia’s argument that her counsel’s performance
was deficient for failing to object to sympathy/victim impact
testimony, evidence of drug use, and police opinion testimony
is equally unpersuasive. As explained infra at III D, we dis-
agree with Plascencia’s characterization of the evidence. We
find no support for Plascencia’s assertions that law enforce-
ment ever provided opinion testimony, and we disagree that
sympathy or victim impact evidence was presented at trial.
Accordingly, we reject Plascencia’s contention that her coun-
sel was deficient for not objecting to this evidence. We agree,
however, with Plascencia’s claim that her counsel should
have made a relevancy objection to the toxicologist’s testi-
mony regarding the drug Rohypnol.
[7] In addition to showing that her counsel’s representation
was deficient, Plascencia must show “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Williams,
529 U.S. at 390-91 (quoting Strickland, 466 U.S. at 688, 694).
“A reasonable probability is a probability sufficient to under-
mine confidence in the outcome” of the trial. Sanders, 21 F.3d
at 1461 (quotation marks and internal citation omitted). Here,
any prejudicial effect was at best minute. The evidence of
drug use was limited to tangential issues that did not prejudice
PLASCENCIA v. ALAMEIDA 18169
the outcome of Plascencia’s trial. Accordingly, this claim
does not satisfy Strickland’s second prong.5
3.
[8] We therefore conclude that the state court decision
denying Plascencia’s ineffective assistance claim was not
contrary to, or an unreasonable application of, Strickland or
an unreasonable determination of the facts in light of the evi-
dence presented.
B
[9] We address next Plascencia’s first claim, that the trial
court violated her Sixth Amendment right to confront adverse
witnesses when it restricted cross-examination of Galdamez,
Robertson, and Joanna Silva. “The Sixth Amendment to the
Constitution guarantees the right of an accused in a criminal
case to be confronted with the witnesses against him.” Davis
v. Alaska, 415 U.S. 308, 315 (1974). Nevertheless, “trial
judges retain wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things . . .
interrogation that is repetitive or marginally relevant.” Dela-
ware v. Van Arsdall, 475 U.S. 673, 679 (1986). Here, any lim-
itation on cross-examination imposed by the trial court was
reasonable or harmless.
Plascencia argues that the California Court of Appeal ruling
— that the trial court sustained properly an objection on hear-
say grounds to defense counsel’s inquiry of whether Gal-
damez initially told police officers that Yeni shot Silva — was
an unreasonable interpretation of the facts and an unreason-
able interpretation of the law. Whether it was or not, the error
5
Judging from the requests of the jurors during deliberations, they
focused on the strength of Jesse’s identification, not the snitches’ recorded
statements.
18170 PLASCENCIA v. ALAMEIDA
— if any — was not prejudicial. The statement had already
come into the record. Moreover, defense counsel was permit-
ted to ask a variation of the question later during cross-
examination. Thus, even if there was an isolated violation of
Plascencia’s right under the Confrontation Clause, that viola-
tion would not have had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993).
Similarly, Plascencia argues the California Court of Appeal
unreasonably erred in determining that the trial judge cor-
rectly restricted the cross-examination of Robertson on the
basis that the evidence sought was “unnecessary and cumula-
tive.” Plascencia asserts that the trial court’s decision not to
allow hearsay testimony from Robertson regarding Jesse’s
statements to officers in Robertson’s apartment violated her
Sixth Amendment rights.
[10] The trial court determined that because Jesse’s initial
statement to the investigating officers was previously put into
the record by multiple police officers, including the officer
who took the statement from Jesse, the evidence was unneces-
sary and cumulative. There is nothing unreasonable about this
conclusion. The testimony was repetitive and cumulative;
therefore, it was reasonable in both law and fact for the court
to determine that the evidence was unnecessary. Accordingly,
the limitations imposed on Plascencia’s Sixth Amendment
rights are not a basis for granting her habeas petition.
[11] Plascencia argues also that the trial court committed
constitutional error when it restricted the cross-examination of
Joanna Silva regarding her prior criminal convictions for petty
theft and drug possession. We disagree. The California Court
of Appeal ruled correctly that the trial court did not err
because defense counsel was not prepared to prove the fact of
the convictions or that the crimes demonstrated “moral turpi-
tude,” which is required under California law. See People v.
Castro, 38 Cal. 3d 301 (1985); California Evid. Code § 788.
PLASCENCIA v. ALAMEIDA 18171
Accordingly, Plascencia’s Sixth Amendment arguments
regarding the cross-examination of Joanna Silva, in addition
to those of Galdamez and Robertson, are unpersuasive. Van
Arsdall, 475 U.S. at 677.
C
In her second claim, Plascencia contends the trial court
erred in allowing sympathy and victim impact evidence in the
form of testimony and photographs, and in the prosecuting
attorney’s closing argument. We disagree.
[12] With regard to the testimony given by Galdamez and
Lisa and Joanna Silva, Plascencia fails to identify any
improper question asked by the prosecution that could plausi-
bly be construed to inflame the passions of the jury. Indeed,
the California Court of Appeal concluded correctly that the
challenged testimony was “no more than proper background
and foundation evidence explaining the relationships of the
witnesses and the circumstances leading up to Silva’s mur-
der.”
Plascencia further contends the trial court erred by allowing
several premortem pictures of Silva, including several of
Silva with her children. We need not determine whether the
trial court erred in this respect. Even if the admission of the
photographs was improper, the error could not have had “a
substantial and injurious effect on the jury’s verdict.” Brecht,
507 U.S. at 623. Both Jesse and his sister Maria testified at
the trial, giving the jury the opportunity to observe their rela-
tionships with their mother. We conclude, therefore, that the
admission of the challenged evidence did not violate Plascen-
cia’s due process rights.
[13] Plascencia next argues that the prosecutor’s multiple
references to Jesse in his closing argument were inappropri-
ate. Specifically, Plascencia contends that the prosecutor’s
admonitions to consider what Jesse had been through were
18172 PLASCENCIA v. ALAMEIDA
improper. Plascencia’s argument takes the prosecutor’s com-
ments out of context. The prosecutor’s statements were made
to help explain Jesse’s inconsistent identifications of the
shooter. There is no indication that the prosecutor ever
directed the jury to consider what Jesse had been through for
the purposes of determining Plascencia’s guilt. We, therefore,
reject this argument as well.
D
In her third and fourth claims, Plascencia avers the trial
court erred in allowing improper testimony to be presented to
the jury. Plascencia contends the trial court improperly
allowed a toxicology expert to give testimony regarding the
effects and common method of Rohypnol use. Plascencia
argues also that the trial court erred in allowing police opinion
testimony regarding her guilt and the police’s perception that
she was attempting to elude them. Both claims fail to provide
a basis for granting Plascencia’s habeas petition.
[14] Plascencia’s argument with respect to police opinion
testimony is without merit. There is no testimony in which
any law enforcement officer or witness stated an opinion con-
cerning Plascencia’s potential culpability or that she was on
the run. The evidence to which Plascencia objects is the testi-
mony investigating officers were able to determine from the
witnesses — primarily Jesse — Plascencia’s name and physi-
cal description, and that the police were initially unable to
locate her. The admission of this testimony was, in all
respects, proper. We turn, therefore, to the expert toxicolo-
gist’s testimony.
[15] The presence of drugs in Plascencia’s system was rele-
vant to corroborate Moore’s recorded statement that Plascen-
cia told her she had been taking the street drug “roaches.”
Moreover, testimony regarding the physical effects of Rohyp-
nol, an active ingredient in roaches, was also relevant to cor-
roborate Johnson’s and Moore’s descriptions of Plascencia’s
PLASCENCIA v. ALAMEIDA 18173
conduct. We recognize, however, that additional testimony —
that Rohypnol was often used as a “follow-up” to heroin or
cocaine or that it was often taken at “raves” — was irrelevant
and should not have been permitted. Nevertheless, to the
extent the trial court erred, we conclude that the admission of
this evidence did not render Plascencia’s trial “fundamentally
unfair.” See Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th
Cir. 1991).
E
Plascencia’s fifth claim is that the trial court erred in
imposing the weapons enhancement at her sentencing. Specif-
ically, Plascencia claims her twenty-five years to life sentence
for first degree murder, in addition to her twenty-five years to
life enhancement for using a firearm, is cruel and unusual
punishment and double jeopardy in violation of the Fifth,
Eighth, and Fourteenth Amendments.
The guarantee against double jeopardy includes three dis-
tinct constitutional protections. “It protects against a second
prosecution for the same offense after acquittal. It protects
against a second prosecution for the same offense after con-
viction. And it protects against multiple punishment for the
same offense.” North Carolina v. Pearce, 395 U.S. 711, 717
(1969); Brown v. Ohio, 432 U.S. 161, 165 (1977). Here, Plas-
cencia contends that by imposing an additional twenty-five
years for her use of a firearm, the trial court violated the third
of these guarantees. We disagree.
[16] In Missouri v. Hunter, 459 U.S. 359, 366 (1983), the
Supreme Court made clear that the protection against multiple
punishments for the same offense did not necessarily preclude
cumulative punishments in a single prosecution. The key to
determining whether multiple charges and punishments vio-
late double jeopardy is legislative intent. Id. at 368-69. When
the legislature intends to impose multiple punishments, dou-
ble jeopardy is not invoked. Id.
18174 PLASCENCIA v. ALAMEIDA
[17] Here, the language of California Penal Code
§ 12022.53 is clear. Subsection (d) provides for a 25 year
enhancement when a “firearm is used” to commit murder.
There is, therefore, no question as to what the California leg-
islature intended. As described by the California Court of
Appeal, the California legislature has simply determined that
“a criminal offender may receive additional punishment for
any single crime committed with a firearm.” Accordingly, we
reject Plascencia’s double jeopardy argument.
We reject also Plascencia’s claim that the enhancement vio-
lates the prohibition against cruel and unusual punishment.
Plascencia’s sentence is neither extreme nor “grossly dispro-
portionate” to the crime. See Harmelin v. Michigan, 501 U.S.
957, 996-97 (1991) (rejecting a similar argument to a sentence
more harsh than the sentence Plascencia received).
CONCLUSION
The state court’s decision was neither contrary to nor
involved an unreasonable application of federal law, and it did
not engage in an unreasonable determination of the facts. We
therefore affirm the district court’s denial of Plascencia’s peti-
tion for a writ of habeas corpus.
AFFIRMED.