Angel Carbajal v. ROBERT NEUSCHMID, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL CARBAJAL,
Petitioner-Appellant,
v.
ROBERT NEUSCHMID, Warden,
Respondent-Appellee.
No. 17-17443
D.C. No. 2:15-cv-01127-JKS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, District Judge, Presiding
Argued and Submitted September 9, 2019
San Francisco, California
Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.
Angel Carbajal, a state prisoner, appeals the district court’s dismissal of his
28 U.S.C. § 2254 habeas corpus petition challenging his state conviction on one
count of making a criminal threat. Carbajal argues the trial court improperly joined
that count with two unrelated counts and that he was prejudiced by the joinder.
FILED
OCT 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Carbajal petitioned for habeas relief to the California Supreme Court, which
summarily denied the petition in a single-line order with citation to two cases.
People v. Carbajal, No. C073292, 2014 WL 660141, at *1 (Cal. Ct. App. Feb. 21,
2014) (“The petition for writ of habeas corpus is denied. (See People v. Duvall
(1995) 9 Cal. 4th 464, 474; In re Swain (1949) 34 Cal. 2d 300, 304.)”). We read
the citations to Swain and Duvall to mean the California Supreme Court denied
Carbajal’s habeas application on a procedural ground—because he had not pleaded
facts with sufficient particularity—and did not render a decision on the merits.
Cross v. Sisto, 676 F.3d 1172, 1177 (9th Cir. 2012); Seeboth v. Allenby, 789 F.3d
1099, 1104, n.3 (9th Cir. 2015). “Where, as here, there is no state court decision
on the merits, the district court reviews the merits de novo.” Scott v. Ryan, 686
F.3d 1130, 1133 (9th Cir. 2013).
Carbajal contends the state violated his due process rights at his second trial
by consolidating counts related to two different, though similar, incidents.
Carbajal argues the state consolidated two weak cases to make a stronger case.
Carbajal notes the state presented the same evidence regarding the count of
conviction at both trials, but the first jury deadlocked on that count while the
second jury found him guilty. Carbajal argues the only difference between the
trials was the consolidation at the second trial of two additional counts for an
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unrelated incident. As to those two additional counts, the jury in the second trial
found Carbajal not guilty of one and deadlocked on the other.
The court may grant habeas relief for improper consolidation “only ‘if the
joinder resulted in an unfair trial. There is no prejudicial constitutional violation
unless simultaneous trial of more than one offense . . . actually render[ed]
petitioner's state trial fundamentally unfair and hence, violative of due process.’”
Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (quoting Sandoval v.
Calderon, 241 F.3d 765, 771–72 (9th Cir. 2001)) (alteration in original).
Unfairness rises to the level of a due process violation only “if the impermissible
joinder had a substantial and injurious effect or influence in determining the jury's
verdict.” Id. (quoting Sandoval, 241 F.3d at 772).
In evaluating prejudice, the court considers several factors to determine
whether the jury properly compartmentalized the evidence rather than considered it
cumulatively. Bean v. Calderon, 163 F.3d 1073, 1085 (9th Cir. 1998). These
factors include whether each crime was simple and distinct, cross-admissibility,
similarity of the cases, strength of the evidence, relative strengths of the joined
cases, jury instructions to consider the evidence of each count separately from the
evidence of the other counts, and a verdict indicating the jury was able to
compartmentalize—such as, in particular, an acquittal on the counts alleged to be
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prejudicial. See id.; Sandoval, 241 F.3d at 772; Davis, 384 F.3d at 638–39; United
States v. Johnson, 820 F.2d 1065, 1069–70 (9th Cir. 1987); Featherstone v. Estelle,
948 F.2d 1497, 1503–04 (9th Cir. 1991); Park v. California, 202 F.3d 1146,
1149–50 (9th Cir. 2000). “[T]he failure of the jury to convict on all counts is ‘the
best evidence of the jury's ability to compartmentalize the evidence’” and assess
the evidence related to another charge separately. Park, 202 F.3d at 1150 (quoting
United States v. Baker, 10 F.3d 1374, 1387 (9th Cir.1993)); Featherstone, 948 F.2d
at 1503–04; see Bean, 163 F.3d at 1085–86 (“[N]o such acquittal offered
affirmative evidence of the jury’s ability to assess the [] evidence separately.”).
Here, the acquittal on one joined charge and a failure to convict on the other
joined charge suggests that the jury was able to assess the evidence related to the
charges separately, and thus that there was no prejudice from joinder. Carbajal
threatened a neighbor, and allegedly his brother on a different date in a different
location, with a knife while yelling at each man that the man had killed Carbajal’s
daughter. The jury convicted him only of the single count related to his neighbor.
On the two counts involving his brother that form the basis of Carbajal’s claim of
prejudice, the jury found him not guilty of one and deadlocked on the second. The
jury’s failure to convict is the best evidence of both its ability to compartmentalize
and that Carbajal was not prejudiced by the consolidation. Park, 202 F.3d at 1150.
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Though the judge did not give a limiting instruction and the prosecutor urged the
jury to consider both of the similar incidents, the alleged crimes were simple and
distinct from one another as to time, place, and victim. Additionally, evidence for
the count on which Carbajal was convicted was much stronger, with a lucid victim
who called the police at the time the incident was happening. The jury’s failure to
convict Carbajal on either count related to his brother establishes that the jury was
able to compartmentalize and consider the evidence of each count separately from
the other counts and that Carbajal was not prejudiced by joinder. Id.
AFFIRMED.
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