Omar Cebrero v. Rosemary Ndoh ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMAR CEBRERO, No. 18-16333
Petitioner-Appellant, D.C. No.
1:16-cv-00173-DAD-JLT
v.
ROSEMARY NDOH, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted February 12, 2021
San Francisco, California
Before: BERZON, CHRISTEN, and BADE, Circuit Judges.
Omar Cebrero appeals the district court’s denial of his petition for habeas
corpus relief challenging his state conviction for kidnapping and felony murder.
We granted a certificate of appealability with respect to three issues, 28 U.S.C.
§ 2253(c)(1), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review de novo a district court’s denial of a habeas corpus petition. See
Lambert v. Blodgett, 393 F.3d 943, 964–65 (9th Cir. 2004). Our review is subject
to the deferential standards established by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) as to “any claim that was adjudicated on the
merits in State court proceedings.” 28 U.S.C. § 2254(d); see also Cone v. Bell, 556
U.S. 449, 472 (2009). When AEDPA deference applies, we may only grant relief
if the petitioner shows that the last reasoned decision of the state courts “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court,” id. § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” id. § 2254(d)(2).
1. Cebrero contends that the state trial court’s failure to sua sponte
instruct the jury on the defense of duress violated his due process right “to present
a complete defense.” Bradley v. Duncan, 315 F.3d 1091, 1098–99 (9th Cir. 2002)
(quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). A defendant is only
entitled to an instruction for a recognized defense where there is “evidence
sufficient for a reasonable jury to find in his favor.” Id. at 1098 (quoting Mathews
v. United States, 485 U.S. 58, 63 (1988)). The California Court of Appeal’s
(“Court of Appeal”) opinion, the last reasoned state court decision, concluded that
Cebrero was not entitled to a sua sponte duress instruction under California law
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because there was no evidence of a “demand that he participate” in the kidnapping
of the victim.
Cebrero has not shown entitlement to habeas relief under § 2254(d)(1)
because he did not present sufficient evidence for a reasonable jury to find duress.
See Bradley, 315 F.3d at 1098; see also Menendez v. Terhune, 422 F.3d 1012,
1029–30 (9th Cir. 2005). While one of Cebrero’s co-conspirators, Luis Valencia,
threatened him, no one demanded that he participate in the kidnapping to avoid
“imminent death.” People v. Petznick, 7 Cal. Rptr. 3d 726, 736 (Ct. App. 2003)
(citation omitted). Indeed, the evidence only supports that Valencia threatened to
kill Cebrero if he (1) did not remain silent in the victim’s presence so that the
victim in the trunk would not identify him, or (2) discussed the kidnapping or the
subsequent burning of the victim with others. Sometime after Cebrero received the
first threat, he joined Valencia while another co-conspirator decided to stay behind,
and the men then drove out to the countryside and eventually arrived at the field
where the victim’s burning occurred. Therefore, Cebrero had no due process right
to a duress instruction because it was not supported by the evidence.1
We also reject Cebrero’s argument that the Court of Appeal’s decision was
based on an unreasonable determination of the facts. Cebrero argues that there is
1
We do not decide whether clearly established federal law establishes a due
process right to a sua sponte jury instruction on a defense that is supported by
sufficient evidence.
3
evidence supporting that he feared for his life, but none of the evidence supplies
the missing demand that he participate in a crime to avoid “imminent death.” Id.;
see also People v. Steele, 253 Cal. Rptr. 773, 775 (Ct. App. 1988). Thus, the
evidence Cebrero cites does not “go[] to a material factual issue,” Milke v. Ryan,
711 F.3d 998, 1008 (9th Cir. 2013) (citation omitted), rendering it irrelevant to our
review under § 2254(d)(2).
2. Cebrero also argues that there was insufficient evidence to support the
felony murder special circumstance finding. When the sufficiency of the evidence
underlying a conviction is challenged, we review “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation omitted). To establish that
Cebrero was guilty of special circumstance felony murder as an aider and abettor
under California law, the prosecution had to establish that Cebrero was “a major
participant” who acted “with reckless indifference to human life.” Cal. Penal Code
§ 190.2(d). Cebrero challenges the Court of Appeal’s determination that the
evidence was sufficient to find he was a major participant.2
2
Cebrero asserts that the Court of Appeal’s decision is contrary to, or an
unreasonable application of, Tison v. Arizona, 481 U.S. 137 (1987). In Tison, the
Supreme Court held that the Eighth Amendment forbids a death sentence for a
defendant convicted of felony murder unless there was “major participation in the
4
To qualify as a major participant, “a defendant’s personal involvement must
be substantial, greater than the actions of an ordinary aider and abettor to an
ordinary felony murder.” People v. Banks, 351 P.3d 330, 338 (Cal. 2015)
(citations omitted).3 Several factors are relevant:
What role did the defendant have in planning the criminal enterprise
that led to one or more deaths? What role did the defendant have in
supplying or using lethal weapons? What awareness did the defendant
have of particular dangers posed by the nature of the crime, weapons
used, or past experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to facilitate
or prevent the actual murder, and did his or her own actions or inaction
play a particular role in the death? What did the defendant do after
lethal force was used?
Id. at 338–39 (footnote omitted).
The Court of Appeal’s determination that the evidence sufficiently supported
that Cebrero was a major participant is not unreasonable. There was evidence that
Cebrero had a financial stake in the drugs the victim purportedly sold without
felony committed, combined with reckless indifference to human life.” Id. at 157–
58. However, Tison is inapplicable to Cebrero’s due process claim challenging the
sufficiency of the evidence underlying his conviction because Tison dealt only with
application of the death penalty. California, however, has “codif[ied] the holding
of Tison” for sentences of life imprisonment without parole. People v. Banks, 351
P.3d 330, 332 (Cal. 2015) (citing Cal. Penal Code § 190.2(d)). So the standard, as
codified, is pertinent state law applicable to the sufficiency of the evidence
question.
3
While Banks post-dates the Court of Appeal’s decision, it is a clarification
of section 190.2(d). See In re Scoggins, 467 P.3d 198, 201 (Cal. 2020).
Consequently, section 190.2(d) as clarified by Banks was the law at the time of
Cebrero’s conviction. See Fiore v. White, 531 U.S. 225, 228 (2001).
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obtaining payment; that he suspected that it was possible that the victim would be
killed; that he permitted the continued use of his car once he joined the other
participants after the initial kidnapping; that he was present during planning stages,
including when Valencia obtained the bottle of gasoline that was used to light the
victim on fire; and that he watched the victim scream as she was engulfed in
flames and did not try to help her. The jury could also have credited testimony
from a jailhouse informant that Cebrero helped remove the bound victim from his
car immediately before Valencia and another individual lit the victim on fire.
This evidence relates to several of the factors outlined in Banks and weighs
in favor of finding Cebrero a major participant. Cal. Penal Code § 190.2(d); see
Banks, 351 P.3d at 338–39. A reasonable jury therefore could have found Cebrero
was a major participant, and the Court of Appeal’s decision to affirm his
conviction was not an unreasonable application of Jackson.
3. Finally, Cebrero asserts that he is entitled to habeas relief because he
submitted evidence on state post-conviction review that his conviction was based
in part on false testimony. It is unclear if there has been a decision on the merits as
to this particular claim because the California Superior Court wrongly determined
that the claim was procedurally barred, and both the California Court of Appeal
and the California Supreme Court subsequently issued unreasoned summary
denials. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). We need not resolve
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whether AEDPA deference applies because this claim fails even under de novo
review. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
To prevail on a due process claim based on false testimony, a petitioner must
show that “the false testimony was material.” Jones v. Ryan, 691 F.3d 1093, 1102
(9th Cir. 2012) (quoting Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en
banc)). False testimony is material when there is “any reasonable likelihood that
the false testimony could have affected the judgment of the jury.” Reis-Campos v.
Biter, 832 F.3d 968, 976 (9th Cir. 2016) (citation omitted).
Cebrero challenges part of the trial testimony of Luis Vazquez, one of
Cebrero’s co-conspirators and the government’s witness, as false, based on
Vazquez’s post-trial declaration. On state habeas, Cebrero presented a declaration
in which Vazquez states that his previous testimony was false. Specifically,
Vazquez declared that he omitted during his testimony that he gestured to a
holstered gun when Cebrero joined the co-conspirators after the victim was
kidnapped. Cebrero argues that this evidence is material because it would have
supported his defense that he was a victim during the kidnapping and killing.
The government argued during closing argument that “if you believe that the
defendant was a victim in all of this, you should let him go,” and the court
instructed the jury that “[a] co-participant in a crime is a perpetrator or anyone who
aided and abetted the perpetrator [which] does not include a victim or innocent
7
bystander.” Therefore, we must consider whether the false testimony was
reasonably likely to have affected the jury’s view of Cebrero as a victim, with or
without a duress instruction.
First, there is no evidence that Cebrero saw Vazquez gesture to his gun. In
his closing argument, Cebrero’s defense counsel argued that Cebrero was
threatened by three co-conspirators, none of whom were Vazquez. Further,
Cebrero never made any mention of being threatened with a gun during his
interview with detectives. Cebrero submitted no declaration on state habeas filling
these gaps.
Second, Cebrero’s participation began before his interaction with Vazquez
and continued in Vazquez’s absence. For example, there was evidence from the
jailhouse informant that Cebrero had loaned his car to some of the other
co-conspirators to prove he was not responsible for the missing drugs. And
Vazquez was not present when, according to the jailhouse informant, Cebrero
helped remove the victim from the car shortly before her burning.
Thus, there is no reasonable likelihood that evidence that Vazquez gestured
to a gun would have affected the jury’s verdict. See Reis-Campos, 832 F.3d at
977–78. Crucial details—such as the victim owing Cebrero money for the missing
drugs, Cebrero’s presence during planning stages, Cebrero’s recognition that his
co-conspirators contemplated killing the victim, and Cebrero’s role in removing
8
the victim from his car—are independently supported by Cebrero’s interview with
detectives or the testimony of the jailhouse informant who testified against
Cebrero. See Jones, 691 F.3d at 1106 (holding false evidence was not material
where there was “overwhelming evidence of guilt unrelated” to false evidence). It
is unlikely that any impeachment value with regard to Vazquez from Cebrero’s
new evidence would affect the jury’s verdict. We therefore reject Cebrero’s due
process claim.
AFFIRMED.
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