                                                                             FILED
                           NOT FOR PUBLICATION
                                                                              OCT 28 2019
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANGEL CARBAJAL,                                  No.    17-17443

              Petitioner-Appellant,              D.C. No. 2:15-cv-01127-JKS

 v.
                                                 MEMORANDUM*
ROBERT NEUSCHMID, Warden,

              Respondent-Appellee.


                   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.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       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


                                           2
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


                                            3
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.


                                           4
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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