Pullen v. Lizarraga

Filing 28

FINDINGS and RECOMMENDATIONS to Deny 1 Petition for Writ of Habeas Corpus; Twenty-One Day Objection Deadline signed by Magistrate Judge Jennifer L. Thurston on 4/24/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 5/18/2017. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONOVAN DEWAYNE PULLEN,

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Petitioner,

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v.
JOE LIZARRAGA,

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No. 1:16-cv-00118-DAD-JLT (HC)
FINDINGS AND RECOMMENDATION
TO DENY PETITION FOR WRIT OF
HABEAS CORPUS
[TWENTY-ONE DAY OBJECTION
DEADLINE]

Respondent.

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Petitioner is currently serving a sentence of 25 years and 4 months for convictions

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stemming from an assault on his wife. In this instant habeas action he claims: 1) The trial court

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denied him his Fourteenth Amendment due process rights by denying his Trombetta/Youngblood

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motion based on the prosecution’s willful failure to preserve evidence; 2) The prosecutor

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committed misconduct during closing argument by violating a mid-trial agreement about the

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inadmissibility of the victim’s prior criminal record in violation of his due process rights; and 3)

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The trial court abused its discretion and violated Petitioner’s constitutional rights during the

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sanity phase of the trial by refusing to investigate a juror’s alleged inattention, and then by

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denying Petitioner’s motion for a new sanity trial. As discussed below, the Court finds the claims

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to be without merit and recommends the petition be DENIED.

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I.

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PROCEDURAL HISTORY
Petitioner was convicted in the Fresno County Superior Court on December 14, 2012, of
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corporal injury to a spouse/cohabitant (Cal. Penal Code § 273.5(a)), assault by means likely to

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produce great bodily injury (Cal. Penal Code § 245(a)(4)), and criminal threats (Cal. Penal Code

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§ 422). People v. Pullen, No. F066371, 2015 WL 847688, at *1 (Cal. Ct. App. 2015). Special

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allegations that Petitioner personally inflicted great bodily injury under circumstances involving

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domestic violence (Cal. Penal Code § 12022.7(e)), one prior strike conviction (Cal. Penal Code

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§§ 667(b)–(i), 1170.12(a)–(d)), one prior serious felony enhancement (Cal. Penal Code §

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667(a)(1)), and four prior prison term enhancements (Cal. Penal Code § 667.5(b)), were found to

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be true. Id.

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Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth

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DCA”). The Fifth DCA affirmed the judgment on February 26, 2015. Id. Petitioner filed a

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petition for review in the California Supreme Court, and the petition was summarily denied on

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June 10, 2015. Id.

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On January 4, 2016, Petitioner filed the instant petition for writ of habeas corpus in this

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Court. (Doc. No. 1.) Respondent filed an answer on May 24, 2016. (Doc. No. 21.) Petitioner

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filed a traverse on July 25, 2016. (Doc. No. 27.)

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II.

FACTUAL BACKGROUND

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The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision1:

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Defendant's Prior Acts of Domestic Violence

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Defendant and Luevater Fulmer (Fulmer) had known each other since they were
children and lived together for several years before their marriage.

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In 2003, defendant and Fulmer argued because he accused her of cheating on him.
Fulmer started to leave their apartment. Defendant hit her and knocked her out,
and Fulmer did not remember anything after that. Fulmer woke up in the hospital
four days later. Her jaw had been broken in three places, and she had a shattered
cheek bone. Fulmer testified her “whole memory lapsed” as a result of the
incident. Defendant was convicted of assault by means likely to produce great
bodily injury, with a great bodily injury enhancement.

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In 2004, defendant and Fulmer were married.

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In June 2009, defendant and Fulmer argued because he wanted to have sex and she

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The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1).
Therefore, the Court will rely on the Fifth DCA’s summary of the facts. Moses v. Payne, 555 F.3d 742, 746 (9th Cir.
2009).

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refused. Defendant grabbed her neck and pinned her to the wall. Defendant warned
Fulmer that he would snap her neck if she moved.

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Defendant's Statements to Joann Espinoza
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In August 2009, defendant and Fulmer were living in an apartment complex. One
day, defendant saw their neighbor, Joann Espinoza (Espinoza), as she was about to
drive out of the parking lot. Defendant asked for a ride and she agreed.

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Espinoza testified defendant got into her car, and he was very upset and distraught.
Defendant said he and Fulmer were fighting. He said Fulmer was having sex with
“other guys behind his back.” Defendant said he wanted to kill Fulmer because she
caused him too much anguish. Espinoza told defendant to leave the relationship if
it was that bad. Defendant did not appear under the influence, and he did not
threaten to kill himself.
Espinoza testified she did not take defendant's threat to kill Fulmer seriously. She
did not tell Fulmer, and she did not call the police because “it's just the way people
talk.” [N.3]
[N.3] It was stipulated that Espinoza had a misdemeanor conviction for
grand theft (§ 487) in 2000.

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THE CHARGED OFFENSES
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Fulmer testified that around 1:00 a.m. on September 1, 2009, she was sitting on a
chair in front of their apartment. [N.4] Two men walked past her. She did not
know them.

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[N.4] Fulmer testified she may have consumed a beer and smoked
marijuana on August 30, 2009.
Defendant arrived at the apartment complex on his bicycle and saw the two men.
Defendant raised his voice and accused Fulmer of talking to the men. He asked
why they rushed away. Fulmer replied the men did not speak to her, and they just
walked by. Defendant did not believe her. He accused her of cheating and flirting
with the men.
Fulmer testified she did not want to argue with defendant, and she went inside
their apartment. Defendant followed her. Fulmer sat on the couch and watched
television. She was going to smoke marijuana. Defendant stood in front of the
television and asked why she was cheating on him. Fulmer again denied she talked
to the men.
Defendant ran up to Fulmer and repeatedly punched her in the head. Fulmer tried
to block the blows, and she kicked him away from her. She tried to escape out the
door, but defendant grabbed her around the neck. He threw her to the floor, sat on
top of her, choked her with both hands, and said he was going to kill her. Fulmer
could not breathe and was gasping for air. She thought she was going to die. She
tried to scratch and punch defendant. Fulmer testified “everything went black,”
and she briefly lost consciousness.
Fulmer woke up and discovered defendant was still sitting on top of her stomach
in the living room. His hands were around her neck and he said, “‘Bitch, I'm gonna
kill you.’” Defendant squeezed her throat, and Fulmer again lost consciousness.
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When she woke up, defendant was still on top of her. He said: “‘Bitch, I'm gonna
kill you, and then I'm gonna kill myself. They gonna find both of us dead up in this
house.’” Fulmer believed defendant was going to kill her because “he never
choked me out like that before.” He choked her with more force than he used
during the previous month's incident. Fulmer tried to punch and kick defendant,
but he stayed on top of her. Defendant started to squeeze her neck again, and
Fulmer turned to her side to protect herself.
As Fulmer turned, defendant grabbed her head and slammed it on the living room
floor three times. Fulmer passed out again and was unconscious for a longer period
of time.
Fulmer testified that when she woke up, she was still lying on the living room
floor, and her head was in a large pool of blood. She tried to sit up, but her hands
slipped and smeared the blood on the floor. Defendant was sitting on the living
room floor with his back against the wall, and said, “I'm going back to jail.”
Defendant also said: “I promised God I wouldn't hurt you no more,” and “I
promised you that I wouldn't hurt you no more.” Fulmer knew he was talking
about the previous domestic violence incidents.
Fulmer and defendant got up and sat on the couch. She tried to keep him calm so
she could escape. Fulmer told defendant she forgave him, and they would keep
things quiet. Defendant grabbed her hand and said he did not know what he was
going to do next. After 30 minutes, Fulmer felt she was going to pass out from her
injuries, and blood was running down the side of her head. Defendant positioned a
fan to blow on her, but she still felt like she was going to faint. Defendant walked
Fulmer to the closet to get a towel. He walked her into the bathroom, wet the
towel, and then walked her back to the couch. Fulmer pressed the towel on her
head and tried to stop the blood. There was blood all over her shirt.
Defendant told Fulmer that he was going to kill himself. He dragged her to the
kitchen and grabbed a steak knife from the drawer. Fulmer tried to resist and get
away, but defendant pulled her down to the dining room floor, and sat next to her.
Defendant and Fulmer sat together on the dining room floor. Defendant said he
was going to kill himself. Fulmer told him no. Defendant repeated that he was
going to kill himself. He pressed the knife against his own stomach, but he did not
break the skin. Fulmer testified defendant never threatened her with the knife or
placed it against her stomach.
Fulmer testified as defendant pressed the knife to his stomach, he stopped and said,
“‘No I'm not gonna kill myself.... You kill me because I don't want to lose my soul
in hell.’” Fulmer repeatedly refused. Defendant placed Fulmer's hand on the knife
handle and tried to push her hand down so the knife was on his stomach.

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After a few minutes, Fulmer resisted defendant and pushed away the knife.
Defendant let her go and said he was just going to kill himself. Fulmer ran to the
door. Defendant told her to take her cell phone. Fulmer was afraid he was going to
stop her, so she ran out of the apartment without her cell phone.
Fulmer testified that when she ran out of the apartment, defendant was still sitting
on the dining room floor, and he was holding the knife.

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The 911 Call

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Fulmer pounded on Espinoza's door for help. Espinoza testified Fulmer was
screaming and crying, and said she had to call 911 because defendant had beat her.
Fulmer was bleeding from her forehead. Espinoza gave Fulmer the telephone and a
towel to stop the bleeding. Espinoza testified Fulmer was shaken and distraught.

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At 3:00 a.m., Fulmer called 911 and told the dispatcher that defendant “‘choked
me out’” and “‘busted my head on the floor.’” Fulmer said defendant was trying to
kill himself, that she was afraid for her life, and she was scared to go home
because she might find her husband lying on the floor dead. [N.5]
[N.5] The 911 recording was played for the jury. The parties were unable
to agree as to whether the transcription was true and accurate. The court
instructed the jury to make that determination.
As Fulmer waited for the police to arrive, she was still crying and upset. Espinoza
testified Fulmer said defendant tried to kill her, that he had choked her and tried to
use a knife to stab her in the stomach. [N.6]
[N.6] At trial, Fulmer denied that she told Espinoza that defendant
threatened to cut her with the knife and testified that never happened.

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The Initial Investigation
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At 3:13 a.m., Officer Pierce Masse arrived at the apartment complex with his field
training officer and six to eight additional officers. [N.7] He spoke to Fulmer
outside Espinoza's apartment. Masse testified Fulmer's face, neck and shirt were
covered with blood. Her left eye, cheek, and forehead were swollen. There was a
one-inch laceration on her left eye, and she had scrapes and bruises on her knees,
left wrist, and minor swelling on her left forearm. She held a towel against the left
side of her head, through which blood was seeping. Masse called an ambulance for
Fulmer.
[N.7] Officer Masse testified that when he investigated this case, he had
been a peace officer for about five weeks, he was still in training with his
training officer, and he had graduated from the six-month program at the
police academy.

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Officer Masse testified Fulmer was upset but calm. Fulmer said defendant was in
her apartment, he had a knife, and he said that he was going to kill himself. Fulmer
gave her consent for the officers to enter her apartment.

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Officer Masse asked the dispatcher to call the cell phones for both Fulmer and
defendant so they could talk to defendant. Defendant did not answer.

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Entry into the Apartment and Discovery of Defendant

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Officer Masse and other officers approached Fulmer's apartment. Masse opened
the outer security door, and the front door was already open. Masse looked inside
and saw defendant lying face down on the dining room floor in a pool of blood.
Defendant was on his right side and his right hand was over his head. His left hand
was lying in the blood. [N.8] He was not moving. A knife was on the floor, about
eight feet away from defendant.

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[N.8] Upon reviewing a photograph taken of the dining room, Fulmer
testified that it showed a large pool of blood, and that she did not bleed that
much from her head wound.
The officers rushed in and placed defendant in handcuffs before he could react or
grab the knife. Defendant looked at Officer Masse with a blank stare. Masse
discovered defendant had a large laceration on his left wrist, which was bleeding
and covered with blood. Defendant was taken into custody and a second
ambulance was called for him. Masse was unable to obtain a statement from
defendant.

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Fulmer's Statement at the Scene
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After defendant was taken into custody, Officer Masse conducted a longer
interview with Fulmer as she was being treated by paramedics at the apartment
complex. Fulmer said defendant arrived at their apartment on his bicycle just as
three men walked by. Defendant asked why she was talking to them and accused
her of cheating on him. Fulmer said she walked into the apartment and sat on the
couch because she did not want to argue with him. Defendant punched her in the
face. Fulmer said she was stunned, and she kicked at him to get away. Defendant
punched her eight or 10 times, grabbed her throat with both hands, and choked her.
Fulmer struggled and defendant said he was going to kill her. She lost
consciousness.
Fulmer said when she woke up, defendant still had his hands around her throat. He
again said he was going to kill her. He squeezed her throat and she passed out.
Fulmer said she woke up, and defendant threw her to the floor, sat on top of her,
and started to choke her again. Fulmer said she tried to kick and scratch him, but
he was larger than her. Defendant slammed her head into the ground, and she
might have lost consciousness.

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Fulmer said defendant eventually helped her up, and they sat on the couch. He
apologized, but then he dragged her to the kitchen. Defendant grabbed a knife and
said he was not going to kill her, but he was going to make Fulmer kill him.
Defendant held the knife against his abdomen and placed Fulmer's hand against
the knife. Defendant again said he was going to make Fulmer kill him. Fulmer
tried to calm defendant and pleaded with and apologized to him. Defendant calmed
down, and she threw the knife on the floor. Fulmer said they sat and talked for
nearly two hours, and she tried to keep him calm. Defendant apologized for
hurting her. Defendant suddenly became angry again and told her to leave because
he was going to kill himself. Fulmer ran to the neighbor's home and called 911.

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Espinoza's Statement

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After he spoke to Fulmer, Officer Masse interviewed Espinoza, who was initially
reluctant to answer questions. Espinoza said Fulmer ran into her apartment and
asked to call 911. Espinoza said she did not hear defendant and Fulmer arguing,
and she did not see what happened.

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Espinoza told Officer Masse about the prior incident when she gave defendant a
ride. Defendant was upset and said he was planning to kill Fulmer because she was
cheating on him. Espinoza said defendant seemed really serious, and he was not
joking when he said that. However, Espinoza did not tell Fulmer about the threat
or report it to the police. [N.9]

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[N.9] Espinoza was reluctant to testify and explained that prior to trial, her
former boyfriend had been held in jail with defendant. He told Espinoza
that defendant had confronted him and threatened Espinoza.

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Crime Scene Evidence

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Officer Masse testified that when he initially entered the apartment and found
defendant, he also found two separate pools of blood. One pool was on the dining
room floor. Defendant was lying in this pool of blood, and his left hand was
bleeding into it. The second pool of blood was on the living room floor. Masse
testified the blood on the living room floor had been smeared, but there was no
blood trail or drops between the two pools of blood and the knife.

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Carmen Robles, the police department's crime scene technician, also testified that
she found two separate pools of blood on the living and dining room floors, and
there was no blood trail between the two locations. A kitchen knife was on the
dining room floor, and there was blood on the blade.
Both Officer Masse and Ms. Robles testified that blood samples were not taken
from the blood pools on the dining and living room floors, or from the knife.
Masse testified that he discussed the blood evidence with his field training officer
and Ms. Robles. Masse testified that he decided not to ask Ms. Robles to collect
any blood samples because there was no real question about the sources of the
blood. Masse testified that when he initially entered the apartment, defendant was
lying face down on the dining room floor, his left wrist was cut, it was bleeding,
and he was lying in the pool of blood. Masse testified that Fulmer said defendant
assaulted her in the living room, and the blood and smears on the living room floor
were consistent with her description of her struggle with defendant.

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Officer Masse testified his field training officer agreed with his decision not to
order the collection of blood samples. Ms. Robles collected the knife and
processed it for fingerprints, and the results were negative. [N.10]

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[N.10] In issue I, post, we will address defendant's claim that the People's
failure to obtain and preserve blood samples from the living and dining
room floors violated his due process rights under Trombetta and
Youngblood because the evidence would have been exculpatory and
supported his version of the incident. At trial, defendant claimed for the
first time that Fulmer assaulted and stabbed him in the living room, and his
blood was on the living room floor.

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Officer Masse conceded he did not absolutely know whose blood was on the
dining and living room floors. However, he believed the blood on the dining room
floor was from defendant based on the scene he encountered when he entered the
apartment. Masse further believed the blood on the living room floor was from
Fulmer based on the detailed account she gave of the assault.

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Officer Masse testified Fulmer was holding a towel to her head wound when he
initially contacted her at Espinoza's apartment. The towel did not appear to be
relevant evidence and he did not collect it. He did not collect Fulmer's bloody
shirt, and he did not find or collect the towel that defendant gave Fulmer in the
apartment to stop the bleeding. [N.11]

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[N.11] The defense also cross-examined Officer Masse about his failure to
collect a bloody “towel” depicted in photographs of the dining room area.
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However, additional trial evidence revealed the item was actually gauze
used by the paramedics to stop defendant's bleeding.

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Medical Evidence
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Fulmer
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Both Fulmer and defendant were taken to the hospital and treated in the emergency
room by Dr. Geoffrey Stroh. Dr. Stroh testified that Fulmer had a two-centimeter
laceration on her left temple, above her eye. It was superficial and not deep. She
needed three stitches to close the laceration.
Fulmer also had swelling, a superficial laceration, and abrasions on her left cheek
and the left side of her neck, swelling on her scalp, and scrapes on her knees. She
had redness on her chest which extended from the left upper side to the base of her
neck. There was also redness on her left forearm and right kneecap.

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A CT scan revealed a depressed fracture to Fulmer's right cheekbone. The bone
had been pushed inward, but it was still intact. Dr. Stroh was not sure whether the
fracture was a new injury and noted the radiology report failed to indicate whether
it was an old or healed injury.
Fulmer told the medical staff she had been choked, thrown against the floor, and
she lost consciousness. Dr. Stroh presumed Fulmer suffered a concussion based on
her head injuries and her description of losing consciousness.
Defendant
The paramedic who treated defendant at the apartment testified he was moaning
and unresponsive to commands. Defendant had a jagged cut to his left wrist that
was oozing blood. As the paramedics rendered care, defendant showed some
alertness. By the time defendant arrived at the hospital in police custody, he was
oriented and able to speak.
Dr. Stroh testified defendant had a three-centimeter laceration on his left wrist,
which consisted of one large cut and perhaps two smaller cuts. The wound was not
deep, it was superficial, and it was not bleeding. The wound was closed with a
suture. He did not have any other injuries. Defendant told the medical staff he cut
his left wrist with a steak knife while he was sitting down; he felt dizzy; and he
laid down.

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Dr. Stroh reviewed the photographs of the blood in the living and dining rooms.
He testified that either amount of blood could have come from Fulmer's scalp
wound or defendant's wrist laceration.

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DEFENSE EVIDENCE
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Defendant was the only defense witness.
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The Prior Domestic Violence Incidents
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Defendant testified he had a felony conviction in 1993 for stealing a truck. He
claimed Fulmer's brother loaned the truck to him; he did not know it was stolen;
and he was arrested because he had drugs in his pocket. Defendant admitted that in
2003, he was convicted for assault with means likely to cause great bodily injury
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and that he caused great bodily injury. Defendant testified he hit Fulmer “a couple
of times” when they argued about whether she had been “messing” with his
brother.
Defendant admitted he grabbed Fulmer in June 2009, but denied that he grabbed
her throat and pinned her against the wall. Defendant testified the incident
occurred because Fulmer wanted to smoke crack, she was irritable, and she was
“going off.”

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The Charged Offenses
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Defendant testified that he rode his bicycle to his apartment around 10:00 p.m. on
August 31, 2009, and saw two men walking away. He recognized one man as
someone he had beaten and thrown out of his apartment a few months earlier.

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Defendant went into the apartment and confronted Fulmer with his concerns about
the men. He believed the men were molesting their grandchildren because he had
seen “stuff” in his granddaughter's panties. He also believed Fulmer was cheating
on him. Defendant thought Fulmer had previously put something in his drink to
knock him out when their granddaughter spent the night, so he would not know
what was going on.
Defendant testified Fulmer became offensive, and said he was “trippin’ ” and
lying. Defendant threatened to report Fulmer for child molestation. They argued,
and Fulmer walked into the kitchen.
Defendant testified he sat on the couch and watched television. Fulmer walked up
to the couch, and he suddenly felt something hit his wrist. Fulmer was holding a
knife and defendant's left wrist was bleeding. Defendant pushed her back, jumped
off the couch, and punched her more than twice in the head. Fulmer “crunched”
down and defendant “clobbered her on the top of her head” two more times, and
she had a cut on her head.

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Defendant testified he was afraid Fulmer would stab him with the knife again, and
he would die. He used force to defend himself, even though Fulmer was smaller
than he was, because she was strong, a little dangerous, and tough when she was
angry. [N.12] He believed Fulmer stabbed him because she feared he would report
her involvement with the two men and their granddaughter's purported
molestation. [N.13]
[N.12] Defendant admitted he was a trained boxer who fought 40 bouts.
Defendant was six feet seven inches tall, and weighed 240 to 260 pounds.
Fulmer was five feet four inches tall and weighed 110 pounds.
[N.13] At trial, Fulmer testified she did not inflict any injuries on
defendant, she did not cut him with the knife, she did not knock him out,
and she did not try to kill him. She might have kicked him when she was
trying to push him away.
Defendant testified he “rushed” Fulmer to take away the knife. He “took her
down” to the living room floor. He held her hand and wrist and tried to get the
knife. Fulmer flipped around, and they wrestled on the floor. He finally got the
knife and threw it under the couch. Defendant lay on top of Fulmer's stomach with
all his weight.

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Defendant testified he picked up Fulmer, and they both stood up. His arm was
bleeding, and he took off his tank top shirt and wrapped it around the wound. They
went into the kitchen, and Fulmer used a dish towel to stop her bleeding. They
talked about their argument, and Fulmer smoked “weed.”

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About an hour later, defendant told Fulmer he would patch himself up. Fulmer said
she would help fix his wound. However, Fulmer ran out the door and left.
Defendant panicked when she left and felt “something was going to go bad”
because he was on parole, and there was marijuana in the apartment. He walked to
the dining room table and passed out. His wrist was still wrapped in his shirt.
[N.14] Defendant testified the knife was not in the dining room when he passed
out. He did not remember being handcuffed. He woke up when he heard the
ambulance siren.

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[N.14] Officer Masse testified that when he entered the apartment,
defendant was lying on the floor and nothing was wrapped around his wrist
wound. Masse never saw a bloody shirt in the apartment.

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Defendant testified the blood found on the living room floor resulted from Fulmer
stabbing his wrist. He did not know whose blood was on the dining room floor
where he was found. “It wasn't tested.... It could have been somebody else['s]
blood. It could be her blood. ....” Defendant admitted Fulmer was injured and
bleeding after he hit her, but “it wasn't that much blood.” Defendant did not know
whether the knife on the dining room floor was the same weapon that Fulmer used
to stab him, and thought it might be covered in paint or tomato paste instead of
blood.
Defendant denied Fulmer's entire account of the incident. He claimed he never put
his hands around Fulmer's neck, choked her, slammed her head on the floor,
apologized for beating her again, threatened to kill himself, asked Fulmer to kill
him with the knife, or slit his own wrist. However, defendant “guess[ed]” he might
have caused her injuries. Defendant denied making the statements attributed to
him by Fulmer, Espinoza, Officer Masse, and the hospital staff.

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Defendant testified he spoke to Officer Masse at the hospital and said that Fulmer
slit his wrist. Defendant told Masse that Fulmer put something in his drink to
knock him out, she allowed someone to molest their granddaughter, and he could
not sleep because Fulmer left at night to cheat on him. Defendant denied that he
said there were naked children in his apartment.

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Defendant testified that after he was arrested, Fulmer wrote and visited him in jail,
put money in his jail account, and sent him photographs. He believed that Fulmer
did not want him to talk about her involvement in child molestation. [N.15]
Defendant claimed he tried to report Fulmer to child protective services, but it did
not investigate his allegations. [N.16]

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[N.15] Espinoza testified she spoke to Fulmer after defendant had been
taken into custody. Fulmer said she had second thoughts about the case and
felt bad about him going to jail.

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[N.16] Traci Morales of the Department of Social Services testified that in
July 2012, she received a referral and investigated allegations that
defendant's granddaughter had been molested. Morales concluded the
allegations were unfounded and closed the case in August 2012.
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REBUTTAL

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Officer Masse interviewed defendant at the hospital at 5:38 a.m. Defendant was
coherent, cooperative, and respectful. Masse asked defendant about the cut on his
wrist. Defendant did not answer the question. Instead, defendant said Fulmer
smoked crack, and he could not sleep because she would leave the apartment and
cheat on him. Masse again asked what happened. Defendant said they argued
about why she was cheating on him; he was angry; he “snapped,” and his next
recollection was waking up on the floor with the cut on his wrist. Defendant said
he might have punched Fulmer, but he could not remember, and he was not sure.
Defendant never said Fulmer cut him with the knife.

3
4
5
6
7

Officer Masse testified defendant vaguely talked about child molestation and said
there were naked babies in the bedroom, and Fulmer was possibly responsible.
Masse asked for more details, but defendant could not provide the children's
names, why Fulmer was involved, or what happened. Defendant became
emotional. He said, “The babies, the babies” and sobbed. Masse testified he did
not include these statements in his report because defendant seemed to be rambling
and did not provide any information for following up.

8
9
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Officer Masse was asked to review the “nurses’ notes” from the hospital, which
indicated that defendant said: “F my wife. I don't want to kill myself.” Masse
testified he never heard defendant make this statement.

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12
13

Pullen, 2015 WL 847688, at *1–9.

14

III.

DISCUSSION

15

A.

16

Relief by way of a petition for writ of habeas corpus extends to a person in custody

17

pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or

18

treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,

19

529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as

20

guaranteed by the United States Constitution. The challenged conviction arises out of the Fresno

21

County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. §

22

2254(a); 28 U.S.C.§ 2241(d).

23

Jurisdiction

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

24

1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

25

enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases

26

filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA

27

and is therefore governed by its provisions.

28
11

1

B.

2

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless

Legal Standard of Review

3

the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision

4

that was contrary to, or involved an unreasonable application of, clearly established Federal law,

5

as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was

6

based on an unreasonable determination of the facts in light of the evidence presented in the State

7

court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003);

8

Williams, 529 U.S. at 412-413.
A state court decision is “contrary to” clearly established federal law “if it applies a rule

9
10

that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set

11

of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a

12

different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-

13

406).

14

In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that

15

an “unreasonable application” of federal law is an objective test that turns on “whether it is

16

possible that fairminded jurists could disagree” that the state court decision meets the standards

17

set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable

18

application of federal law is different from an incorrect application of federal law.’” Cullen v.

19

Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from

20

a federal court “must show that the state court’s ruling on the claim being presented in federal

21

court was so lacking in justification that there was an error well understood and comprehended in

22

existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

23

The second prong pertains to state court decisions based on factual findings. Davis v.

24

Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).

25

Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the

26

petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the

27

facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539

28

U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s
12

1

factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable

2

among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-

3

1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

4

To determine whether habeas relief is available under § 2254(d), the federal court looks to

5

the last reasoned state court decision as the basis of the state court’s decision. See Ylst v.

6

Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.

7

2004). “[A]lthough we independently review the record, we still defer to the state court’s

8

ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

9

The prejudicial impact of any constitutional error is assessed by asking whether the error

10

had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

11

Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)

12

(holding that the Brecht standard applies whether or not the state court recognized the error and

13

reviewed it for harmlessness).

14

C.

Review of Claims

15

The instant petition presents the following grounds for relief: 1) The trial court denied him

16

his Fourteenth Amendment due process rights by denying his Trombetta/Youngblood motion

17

based on the prosecution’s willful failure to preserve evidence; 2) The prosecutor committed

18

misconduct during closing argument by violating a mid-trial agreement about the inadmissibility

19

of the victim’s prior criminal record in violation of his due process rights; and 3) The trial court

20

abused its discretion and violated Petitioner’s constitutional rights during the sanity phase of the

21

trial by refusing to investigate a juror’s alleged inattention, and then by denying Petitioner’s

22

motion for a new sanity trial.

23

1.

Failure to Preserve Evidence

24

Petitioner contends that the investigating officers failed to preserve evidence of two pools

25

of blood, one in the living room and another in the dining room. He claims this evidence would

26

have supported his claim of self-defense and exonerated him. He argues that the trial court

27

violated his constitutional rights when it denied his motion to sanction the prosecution for its

28

failure to preserve that evidence.
13

1

In an undisturbed opinion, the Fifth DCA rejected the claim, as follows:

2

I.

3

Defendant contends the court violated his federal and state due process rights by
denying his pretrial motion, brought pursuant to Trombetta and Youngblood, to
sanction the prosecution because of Officer Masse's “willful failure” to collect and
preserve the blood on the living and dining room floors. Defendant argues the
blood evidence could have been exculpatory and shown that his blood was on the
living room floor. Defendant argues the blood evidence would have been
consistent with his trial testimony that he did not initiated the attack upon Fulmer,
but that she stabbed him in the living room. As we will explain, defendant's due
process rights were not violated in this case.

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Denial of Trombetta/Youngblood motion

A. Trombetta/Youngblood
We begin with the applicable legal standards. Law enforcement agencies have a
duty under the due process clause of the Fourteenth Amendment to preserve
evidence “that might be expected to play a significant role in the suspect's
defense.” (Trombetta, supra, 467 U.S. at p. 488, fn. omitted.) To fall within the
scope of this duty, the evidence “must both possess an exculpatory value that was
apparent before the evidence was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably
available means.” (Id. at p. 489.)
The state's responsibility is further limited when the defendant's challenge is based
on the failure to preserve potentially exculpatory evidence—that is, “evidentiary
material of which no more can be said than that it could have been subjected to
tests, the result of which might have exonerated the defendant.” (Youngblood,
supra, 488 U.S. at p. 57, italics added.) “[U]nless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.” (Id. at p. 58; People v.
DePriest (2007) 42 Cal.4th 1, 41–42.)
“The presence or absence of bad faith by the police for purposes of the Due
Process Clause must necessarily turn on the police's knowledge of the exculpatory
value of the evidence at the time it was lost or destroyed. [Citation.]” (Youngblood,
supra, 488 U.S. at pp. 56–57, fn. *.) It is significant whether the state knew the
evidence could form a basis for exonerating the defendant and failed to preserve it
as part of a conscious effort to circumvent its constitutional discovery obligation.
(Trombetta, supra, 467 U.S. at p. 488.) The negligent destruction of, or failure to
preserve, potentially exculpatory evidence, without evidence of bad faith, will not
give rise to a due process violation. (Youngblood, supra, 488 U.S. at p. 58.)
Thus, there is a distinction between Trombetta's “exculpatory value that was
apparent” criteria and the standard set forth in Youngblood for “potentially useful”
evidence. If the higher standard of apparent exculpatory value is met, the motion is
granted in the defendant's favor. But if the best that can be said of the evidence is
that it was “potentially useful,” the defendant must also establish bad faith on the
part of the police or prosecution. (See Youngblood, supra, 488 U.S. at p. 58;
Trombetta, supra, 467 U.S. at pp. 488–489; People v. Alvarez (2014) 229
Cal.App.4th 761, 773.)
“On review, we must determine whether, viewing the evidence in the light most
favorable to the superior court's finding, there was substantial evidence to support
14

1

its ruling” on a Trombetta/Youngblood claim. (People v. Roybal (1998) 19 Cal.4th
481, 510.)

2
B. Pretrial Motion
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Defendant filed a motion in limine pursuant to Trombetta and Youngblood, and
argued the People's failure to collect or preserve any samples from the two pools
of blood resulted in the intentional, bad faith loss and destruction of material
evidence in violation of his due process rights. Defendant argued the evidence
would have been exculpatory and shown that his blood was on the living room
floor, which would have supported his trial theory that Fulmer attacked him in the
living room with the knife. Defendant asked the court to fashion an appropriate
sanction.
At a pretrial hearing, however, defense counsel equivocated about the reason for
his Trombetta /Youngblood motion.
“[DEFENSE COUNSEL]: ... I have not received any additional
information, and it appears that the People do not intend to introduce any
information regarding the blood....
“THE COURT: Other than in the photographs?
“[DEFENSE COUNSEL]: Other than in the photographs. And because I
didn't have anything I prefer to file it and even if there is—it's not relevant
because we don't have—I cannot test the blood at this point. I cannot have
anything done to verify who is who, and that's why I'm submitting this
motion. And we have [a] report that testings were not done regarding the
blood, and that's why I didn't know whether there is something else that is
coming up or is not coming up, but at this point it appears that nothing is
coming up unless you intend some new test, DNA, or anything that that.”
The prosecutor was not sure if the blood had been preserved, and defense counsel
said he did not know.
“[DEFENSE COUNSEL]: So, Judge, obviously the motion may be without
merits. I just filed it because I didn't know what was coming up.” (Italics
added.)

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The court and the parties reviewed the reports and clarified the knife had been
preserved, tested for fingerprints, and the tests were negative, but the blood had
not been collected, preserved, or tested. Defense counsel stated:
“[DEFENSE COUNSEL]: Judge, I'm ready to withdraw the motion. If
nothing that I don't know regarding the blood is coming, I don't have to file
the motion because I don't know even that what is—
“THE COURT: Yeah. I don't think it's going to apply, but—
“[DEFENSE COUNSEL]: No, it's not applying at all. I mean, it's not
relevant. It doesn't apply.” (Italics added.)
After further discussion, however, defense counsel clarified his Trombetta
/Youngblood motion:

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3
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5
6

“[DEFENSE COUNSEL]: What it is, Judge, is that to advise the Court is
we don't know which blood is which, because the defendant the fact also
his blood was in the room, too, all over, so that's why I don't know, but this
indicated that there is no blood samples to test, so obviously there is ...
nothing coming up and we will go with this.”
The court replied:
“[I]t doesn't sound like there's a Trombetta issue and it sounds like
whatever reports relate to the I. Bureau work have been exchanged, so
whatever comes out, comes out. The People are subject to direct and crossexamination.”

7
C. Posttrial Motions
8
9
10

As set forth in the factual statement, Officer Masse was extensively questioned
about the nature and location of the blood in the apartment, and why he directed
the crime scene technician not to take any samples. The prosecution introduced
photographic evidence of the two separate pools of blood in the living and dining
rooms.

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19

After defendant was convicted in the guilt phase, the court convened the jury trial
on the sanity phase. Just before the sanity phase began, defendant personally
addressed the court outside the jury's presence. Defendant complained the court
never addressed his Trombetta motion. Defense counsel interrupted defendant and
advised the court:
“[I]t is my recollection that I have addressed way back during the guilty
trial. I explained to [defendant] it's not the right time to address motions in
limine when the jury found him guilty. [Defendant] indicates that I have
not addressed a motion that I filed, motion in limine regarding of not
collecting the blood and not collecting a Trombetta motion at that time
when we had, and he's been calling this a motion during the entire trial.
And I'm saying it in the record, I don't have the specific recollections what
was the ruling of the Court way back at the preliminary hearing [sic ]. I
know that now in the sanity phase, obviously, we cannot address any
motions. [¶] According to [defendant], the Court reserved the right of
ruling to that motion, according to him, and his recollection; right?”

20
21
22

Defendant said his attorney should know what happened. Defense counsel said he
did not specifically recall whether the court ruled on the Trombetta motion. The
court replied that it did. Defendant again addressed the court and complained it did
not rule on the Trombetta motion. Defense counsel clarified the Trombetta motion
was based on the prosecution's failure to collect the blood at the scene.

23
24
25
26
27

The court again said it had ruled on the motion, and it had not precluded the parties
from addressing the failure to collect and preserve the blood evidence. The court
further noted defense counsel extensively addressed the issue during crossexamination of the witnesses, raised it in closing argument, and the issue was
presented to the jury. Defendant complained there was no blood for the jury to
consider. The court again said it denied the motion prior to trial. Defendant said
his defense attorney did not talk about it. The court advised defendant not to be
disruptive and moved on to other evidentiary issues for the sanity phase.

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16

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D. Analysis
Defendant argues his due process rights were violated under Trombetta and
Youngblood because of Officer Masse's failure to collect and preserve the blood
found in the apartment. Defendant asserts Masse improperly made his decision
based on Fulmer's statement at the scene, and assumed Fulmer's version of events
was true and that her blood was on the living room floor. “Since the officers
believed Fulmer and made their assumptions accordingly, they reached an
expressed decision to not preserve any blood samples, including those on the towel
and shirt. This precluded [defendant] from proving both pools of blood on the
floor, or the bloody clothes, either were his alone or were a combination of his and
Fulmer's which would have supported his claim that he did, in fact, act in selfdefense.” [N.17]
[N.17] We note that while defendant filed a Trombetta/Youngblood motion
in limine, defense counsel appeared to initially withdraw the motion based
on his realization the prosecution had fully complied with discovery and
there were no undisclosed blood-evidence reports. As the pretrial
arguments continued, however, defense counsel clarified that the blood
evidence should have been collected and preserved by the investigating
officers. Defendant has thus preserved review of this issue.
Defendant's due process rights were not violated by the failure to collect and
preserve the blood samples found in the apartment. The blood evidence did not
“possess an exculpatory value that was apparent before [it] was destroyed.”
(Trombetta, supra, 467 U.S. at p. 489.) At trial, defendant testified that Fulmer
initiated the assault, and that she stabbed him with a knife while he was sitting on
the living room couch. However, defendant never accused Fulmer of stabbing him
until he testified at trial. At the time of the investigation, Fulmer reported that
defendant assaulted her in the living room, he beat her so violently that she lost
consciousness three times, and she was bleeding from her forehead. Fulmer said
she slipped in the blood when she tried to get up from the living room floor.
Fulmer also said that when she ran out of the apartment, defendant was sitting on
the dining room floor and holding a knife, but he had not stabbed himself.

18
19
20
21

When Officer Masse initially entered the apartment, he found defendant lying on
the dining room floor in a pool of blood. His left wrist was cut and bleeding, and
the knife was nearby. Masse found the second pool of blood in the living room. It
had been slightly smeared, consistent with Fulmer's description of how she got up
from the floor, but it was separate and apart from the blood in the dining room.
There were no trails or drops to connect the two pools of blood, or connect the
living room blood to the knife found in the dining room.

22
23
24
25
26

Defendant was not capable of speaking to the officers while he was still at the
scene. At the hospital, however, defendant told the medical staff that he cut his left
wrist with a steak knife while he was sitting down, he felt dizzy, and he laid down.
Officer Masse interviewed him at the hospital and asked about the cut on his wrist.
Defendant did not answer the question. Instead, he accused Fulmer of using drugs
and cheating on him. Defendant also said they argued, he was angry, he
“snapped,” and his next recollection was waking up on the floor with the cut on his
wrist. Defendant said he might have punched Fulmer, but he could not remember
and he was not sure. Defendant never said Fulmer cut him with the knife.

27
28

Based on the facts presented to Officer Masse that night, the blood evidence did
not “possess an exculpatory value that was apparent before [it] was destroyed....”
17

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3
4
5
6
7
8
9

(Trombetta, supra, 467 U.S. at p. 489.) It was reasonable to conclude that
defendant was lying in a pool of blood on the dining room floor which resulted
from cutting his own wrist given the nature of the wound, the nearby knife, and his
statements to Masse and the medical staff. It was also reasonable to conclude the
blood in the living room resulted from defendant's assault upon Fulmer because
she had not been stabbed with a knife, she had blunt force injuries, and there was
no blood trail which connected the two scenes.
At most, the blood evidence appeared “potentially useful” that night, and it “could
have been subjected to tests” that might have helped the defense. (Youngblood,
supra, 488 U.S. at pp. 57, 58.) However, there is no evidence of bad faith in this
case. It cannot be said that Officer Masse knew about the purported exculpatory
value of the blood evidence when he directed the crime scene technician not to
collect and preserve samples. (Id. at pp. 56–57, fn. *; People v. DePriest, supra, 42
Cal.4th at p. 42.) Defendant's vague statements at the hospital sought to justify the
incident. He admitted he had slashed his own wrist, that he never said anything
which undermined Fulmer's account of the assault, and that he never accused
Fulmer of assaulting him until his belated claim at trial.

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18

Defendant argues that it was unreasonable for Officer Masse to rely upon Fulmer's
account of the assault when he decided not to collect the blood samples. Defendant
asserts the scene in the living room was inconsistent with Fulmer's description of a
violent struggle in which she fought for her life, because the living room was not
otherwise disrupted aside from the blood and some movement of one table.
However, Fulmer described a scenario where defendant, who was substantially
larger than she, assaulted her on the couch, dragged her to the living room floor,
and repeatedly slammed her head on the floor. Fulmer's struggle to push defendant
off of her did not necessarily mean that the entire room would have been disrupted
in the process.
Defendant also complains his due process rights were violated because the police
failed to preserve the towels which Fulmer used to stop the bleeding from her head
wound, since the blood on those two towels might have been exculpatory. As with
the primary blood evidence, however, there was no apparent exculpatory value to
these two towels, they might have been potentially useful, and there is no evidence
of bad faith.

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While the court denied defendant's Trombetta/Youngblood motion, it did not
prohibit the defense from raising this issue at trial. Defense counsel extensively
cross-examined Officer Masse and the crime scene technician about their failure to
collect and preserve the blood samples, and obtained their concessions that they
were not absolutely certain about the sources for the two separate pool of blood. In
closing argument, defense counsel addressed Masse's failure to preserve the blood
found in the apartment, and argued the prosecution only presented “allegations”
about blood, it failed to introduce any real evidence about who the blood belonged
to, and the prosecution had failed to prove defendant's guilt beyond a reasonable
doubt.
We thus conclude the court properly denied defendant's Trombetta/Youngblood
motion. The alleged exculpatory value of the blood evidence was not apparent that
night. At most, the blood might have been “potentially useful,” and there is no
evidence of bad faith in Officer Masse's decision not to collect and preserve the
blood.
Pullen, 2015 WL 847688, at *9–13
18

1
2

a. Legal Standard
Due process requires that the prosecution disclose exculpatory evidence within its

3

possession. Brady v. Maryland, 373 U.S. 83, 87 (1963); Cooper v. Brown, 510 F.3d 870, 924

4

(9th Cir.2007). A due process violation occurs “when the State suppresses or fails to disclose

5

material exculpatory evidence”; in such a case, “the good or bad faith of the prosecution is

6

irrelevant.” Illinois v. Fisher, 540 U.S. 544, 547 (2004) (citing Brady, 373 U.S. at 83).

7

However, the Due Process Clause “requires a different result when . . . the State [fails] to

8

preserve evidentiary material of which no more can be said than that it could have been subjected

9

to tests, the results of which might have exonerated the defendant.” Arizona v. Youngblood, 488

10

U.S. 51, 57 (1988). Failure to preserve such “potentially useful evidence” does not violate due

11

process “unless a criminal defendant can show bad faith on the part of the police.” Id. at 58

12

(emphasis added). The presence or absence of bad faith turns on the government’s knowledge of

13

the apparent exculpatory value of the evidence at the time it was lost or destroyed. Id. at 56–57.

14
15

b. Analysis
The blood evidence at issue here was at best the sort of “potentially useful evidence”

16

referred to in Youngblood, and not the material exculpatory evidence addressed in Brady. Had

17

the blood pools been preserved and tested, the most the petitioner could hope for was that the

18

pools of blood would match the petitioner’s and would thus be consistent with the petitioner

19

having bled from his injury in the living room as well as in the kitchen. This in turn would lend

20

some support to his claim that he sustained the injury to his arm in the living room. To be sure,

21

the evidence would not have exonerated him in light of the overwhelming evidence against him,

22

which included Petitioner’s own statements to law enforcement at the scene.

23

In addition, Petitioner fails to show any bad faith on the part of law enforcement. There

24

was no indication that the identities of the contributors to the pools of blood were at all relevant.

25

All information at the time, which included Petitioner’s own statements at the scene, indicated

26

that the blood in the living room came from the victim as a result of Petitioner’s assault, and the

27

blood in the kitchen came from Petitioner’s self-inflicted wound. Therefore, a fair-minded jurist

28

could conclude that law enforcement did not act in bad faith in failing to preserve the blood
19

1

evidence for testing. Accordingly, Petitioner fails to demonstrate that the state court rejection of

2

his claim was an unreasonable application of Supreme Court precedent. The claim should be

3

denied.

4

2.

Prosecutorial Misconduct

5

Petitioner next alleges the prosecutor committed misconduct during closing arguments

6

when he violated a mid-trial promise not to talk about the victim’s prior criminal record, by

7

asking the jury to look at what he knew was a deficient and therefore misleading document

8

concerning the victim’s criminal history.

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Petitioner also raised this claim on direct appeal. In the last reasoned decision, which was
adopted by the California Supreme Court, the Fifth DCA denied the claim as follows:
Defendant raises an issue of prosecutorial misconduct based on the prosecutor's
closing argument about Fulmer's lack of a criminal record. As we will explain,
Fulmer had prior misdemeanor convictions, and the court held they were too
remote for impeachment purposes. In closing argument, the prosecutor criticized
defendant's trial claim that Fulmer used crack; the prosecutor asked the jury to
look at her record because she did not have a prior drug conviction. Defendant
objected and the court overruled it.
On appeal, defendant argues the prosecutor's argument about Fulmer's credibility
was false and misleading because Fulmer had a criminal record, which the court
excluded.
A. Prosecutorial Misconduct
“A prosecutor's misconduct violates the Fourteenth Amendment to the United
States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct
must be ‘of sufficient significance to result in the denial of the defendant's right to
a fair trial.’ [Citation.] A prosecutor's misconduct that does not render a trial
fundamentally unfair nevertheless violates California law if it involves ‘the use of
deceptive or reprehensible methods to attempt to persuade either the court or the
jury.’ [Citations.]” (People v. Cole (2004) 33 Cal.4th 1158, 1202.)
“When the issue ‘focuses on comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.’ [Citations.]
Moreover, prosecutors ‘have wide latitude to discuss and draw inferences from the
evidence at trial,’ and whether ‘the inferences the prosecutor draws are reasonable
is for the jury to decide.’ [Citation.]” (People v. Cole, supra, 33 Cal.4th at p.
1203.)
B. Motions in Limine
Defendant filed several pretrial motions in limine, including a motion to prohibit
the prosecutor “from making improper and unconstitutional [closing] argument to
20

1

the jury,” including any “[s]tatement, comment, remark or insinuation vouching
for the credibility or integrity of prosecution witnesses.”

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During the lengthy pretrial hearings, the court reviewed defendant's motion and
said: “I don't think it needs a lot of discussion.” The court asked the prosecutor
whether he understood his obligations, and he said that he did. Defense counsel
stated:
“[Y]our Honor, just for the record I had no doubt at all about [the
prosecutor]. I'm going just with the books when I do these motions.... I
apologize. [S]o I am going with the standard proceedings.”
The court acknowledged that defense counsel was just making a record.
C. Fulmer's Trial Testimony and the CLETS Report
Fulmer testified for the prosecution. On cross-examination, defense counsel asked
whether she tried to kill defendant, and she said no. Counsel asked if she had any
criminal record. Fulmer replied: “Not that I know of,” and then added, “Well, not
recently, no.” Defense counsel asked what she meant, and the court called for an
unreported bench conference. When the court returned to the record, it instructed
the jury that Fulmer's responses were stricken, and it was not to consider them for
any purpose.
On redirect examination, the prosecutor asked for another bench conference,
which was not reported. When the court returned to the record, the prosecutor said
that in light of defense counsel's questions, he moved to introduce exhibit No. 32,
Fulmer's certified CLETS “rap sheet” which showed “no arrests, no convictions in
her history.” Defense counsel did not object, and the court admitted it into
evidence. The prosecutor conducted his redirect examination but did not ask
Fulmer about her lack of a record.
D. Discovery of Fulmer's Prior Misdemeanor Conviction
During the next recess, the court stated the defense investigator had produced
certified records from Fresno County Municipal Court, which showed Fulmer had
a misdemeanor conviction for petty theft (§ 488) in 1989. There had been an
outstanding arrest warrant, and she failed to appear several times. She was
ultimately sentenced in 1992 or 1993 and received a two-year term on informal
probation. The prosecutor agreed the records were authentic.

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The court decided the prior misdemeanor conviction was too remote to be used to
impeach Fulmer's credibility because it had occurred 20 years earlier, and she did
not have any subsequent record.
“[T]he questions [defense counsel] presented to the witness I struck and
instructed the jury not to consider. I've admitted the certified CLETS of the
District Attorney's Office presented in Exhibit 32. You know, the only
other thing I would say is that this is now the second time in recent history
in trials that I've conducted here ... where, quite frankly, the CLETS
information isn't necessarily complete or accurate and, in fact, we've
already had an instance of it in this case....But, nevertheless, this issue as
far as I'm concerned is resolved. It would have been too remote in time to
use as an impeachable prior ... and I'm not going to change the record or
the complexion of the case for the jury at this time....”
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The court noted it had similarly excluded defendant's prior misdemeanor
conviction for criminal threats from 1997 because it was too remote.

2
Defense counsel asked:
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“Just not to mislead the jury, what will be court indication about the
CLETS information, People's exhibit with the indicat[ion] that she's never
had any record? And, obviously, and if counsel continues arguing that she's
never had any record, what will be the Court position....”
The prosecutor said: “I will not argue that. I can tell you that.” The court replied:
“It opens the door, then we'll have another issue.” The prosecutor added: “And I
can assure the Court I would not argue that she does not have a record based on
what we just had established through a Defense Exhibit.”

8
E. Further Discovery of Fulmer's Record
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After the defense rested and prior to rebuttal, the prosecutor advised the court that
he conducted further research and obtained a “STAR” report on Fulmer's prior
records. It showed that Fulmer had been cited for violating Vehicle Code section
14601 in 1990 and 1992 (driving on a suspended or revoked license), and the
charges were apparently dismissed for insufficient evidence. It also showed “a
filed DUI” in 1991 but “nothing” came of it. [N.18]
[N.18] The prosecutor also advised the court that the STAR records
revealed Espinoza's prior record. The parties subsequently stipulated to the
jury that Espinoza had a misdemeanor conviction for grand theft in 2000.
The court stated the new records did not change its ruling, and Fulmer could not be
impeached. [N.19]

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[N.19] On appeal, defendant does not challenge the court's decision to
prohibit impeachment of Fulmer with her prior misdemeanor conviction or
the Vehicle Code charges. While petty theft is a crime of moral turpitude,
the court did not abuse its discretion when it decided to exclude evidence
of Fulmer's 1989 misdemeanor conviction as too remote, particularly since
she did not suffer any subsequent convictions. (Cf. People v. Mendoza
(2000) 78 Cal.App.4th 918, 925–926; People v. Green (1995) 34
Cal.App.4th 165, 182–183.)
Defense counsel returned to the issue of Fulmer's prior misdemeanor theft
conviction in 1992, and its omission from the CLETS report, which had been
introduced into evidence. Defense counsel complained “the presentation by the
People is not complete, again, because they don't include the '92 record from the
[section] 488 that we have.” The court replied it had already ruled on the issue.
F. Closing Argument
The prosecutor did not address Fulmer's record in his initial closing argument. In
defense counsel's closing argument, he attacked Fulmer's credibility and argued
she gave inconsistent statements about the incident, and defendant's testimony was
more consistent with the evidence.

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In rebuttal argument, the prosecutor addressed asked the jury to review the
instruction regarding the factors to evaluate the credibility of the witnesses:
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“Was the witness' testimony influenced by a factor, such as bias or
prejudice, a personal relationship with someone involved in the case or a
personal interest in how this case is decided? You know, I think it's
interesting. The defendant during cross mentioned that he's a drug addict
and he mentioned that's why he didn't really care about [his prior
conviction] is because he had drugs in his pocket and he was going to get
popped for that anyway. And he made sure when Officer Masse questioned
him at the hospital and then when he was on the stand all these shots at his
wife, crack addict, crack. [N.21] Never once did she try to throw shots at
him. She didn't try to show anything else in there. She just answered the
questions, and you can look at her criminal history. You won't even see a
drug arrest, and I'll develop this further ....” (Italics added.)

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[N.21] At trial, defendant testified his prior domestic altercations with
Fulmer occurred when she wanted to smoke “weed” and “crack,” and she
cheated on him with various unknown men. Officer Masse testified that
when he interviewed defendant at the hospital, defendant said, among other
things, that Fulmer smoked crack, and he could not sleep because she
would leave the apartment and cheat on him.
Defense counsel objected to the prosecutor “looking to her criminal history
pursuant to the prior Court's indication.” The court overruled the objection and the
prosecutor moved to another topic.
Later in his rebuttal argument, the prosecutor again addressed defendant's attacks
on Fulmer's credibility:
“[Defendant] starts with two things trying to just, you know, make her look
not credible. She's, essentially, a whore and she's a crack addict and a
druggie. That's what he told the first officer....”

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Defense counsel did not object. The prosecutor argued that defendant tried to
“trash” Fulmer's credibility with his baseless allegations about child molestation,
which he didn't report to child protective services until three years after he was
arrested in this case, and which were deemed unfounded. “He already trashed her
physically on September 1st, 2009, and now he wants to trash her reputation and
just make her look like someone she isn't....” (Italics added.) Defense counsel did
not object.

20
G. Analysis
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Defendant asserts the prosecutor committed misconduct by introducing the CLETs
report which failed to list Fulmer's petty theft conviction, attesting that he would
not argue that she lacked a criminal record, and then arguing in rebuttal that
Fulmer was credible because she did not have a criminal record.
We first note there is no evidence the prosecutor intentionally or even negligently
withheld any information from the court or the defense about Fulmer's criminal
record. Both the court and the prosecutor expressed their frustration the CLETs
report was incomplete. Indeed, the court acknowledged that it had recently been
faced with incomplete and inaccurate CLETs reports in other cases. After the
defense investigator produced court records about Fulmer's petty theft conviction,
the prosecutor continued to investigate the matter and obtained the STAR report,
which disclosed Fulmer's dismissed cases for driving without a license and the
DUI, and Espinoza's prior conviction. The court found the prosecutor's further
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investigation demonstrated “the responsibility of a diligent prosecutor to follow
up” and to “make sure that every representation he's made to the Court on behalf
of the People is correct and accurate.” Defense counsel did not dispute the court's
finding or allege the prosecutor engaged in any misconduct as to the production of
Fulmer's criminal history.
We also note that while defense counsel objected to one portion of the prosecutor's
rebuttal argument, he did not raise a specific prosecutorial misconduct objection or
request an admonition, and he did not object to the prosecutor's subsequent
reference to Fulmer's credibility. “To preserve for appeal a claim of prosecutorial
misconduct, the defense must make a timely objection at trial and request an
admonition; otherwise, the point is reviewable only if an admonition would not
have cured the harm caused by the misconduct. [Citation.]” (People v. Price
(1991) 1 Cal.4th 324, 447; People v. Silva (2001) 25 Cal.4th 345, 373.) The
defendant will be excused from the necessity of either a timely objection and/or a
request for admonition if either would be futile. (People v. Hill (1998) 17 Cal.4th
800, 820.) There is nothing in the record to reflect that it would have been futile
for defense counsel to request an admonition after the first objection, or to lodge
further objections to subsequent rebuttal argument.
In any event, it is important to note the context in which the prosecutor addressed
Fulmer's record. Defendant testified that Fulmer assaulted him on the couch with
the knife and slit his wrist. Defendant also testified that Fulmer used crack, she
cheated on him with various unknown men, she previously put something in his
food to knock him out, and she and various unknown men were somehow involved
in molesting his grandchild. In his closing argument, defense counsel argued
Fulmer's account of the assault was not credible, and defendant's testimony was
more consistent with the evidence.

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In this light, the prosecutor used his rebuttal argument to undermine defendant's
trial accusations against Fulmer, particularly defendant's claim that she used crack:
“[Y]ou can look at her criminal history. You won't even see a drug arrest, and I'll
develop this further.... ” (Italics added.) Defense counsel immediately objected,
and the prosecutor moved on to another topic. Later in rebuttal, the prosecutor
again attacked defendant's claim that Fulmer was “a whore” and “a crack addict
and a druggie,” and accused defendant of “trashing” her reputation. Defense
counsel did not object to the latter statements.
The prosecutor did not misstate the record when he said that Fulmer's record did
not show “even” a drug arrest. He never said she did not have any criminal record,
and his rebuttal argument did not constitute prejudicial misconduct. Fulmer's
record consisted of Vehicle Code violations which were dismissed, a misdemeanor
petty theft conviction in 1989 which resulted in informal probation, and no other
citations, arrests, or convictions. The prosecutor did not misstate or mislead the
jury on this point—Fulmer's entire record had been obtained, and she did not have
any drug related arrests or convictions. In addition, the admission of the CLETs
report was not prejudicial, even though it failed to include the misdemeanor petty
theft conviction, since the court found it was too remote to be used for
impeachment and excluded it from evidence.
Pullen, 2015 WL 847688, at *13–17.
a. Legal Standard
Under clearly established federal law, a prosecutor's improper comments will be held to
24

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violate the Constitution only if they “so infected the trial with unfairness as to make the resulting

2

conviction a denial of due process.” Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 2153

3

(2012) (per curiam) (quoting Darden v. Wainright, 477 U.S. 168, 181–183 (1986)). Improper

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argument does not, per se, violate a defendant's constitutional rights. Mancuso v. Olivarez, 292

5

F.3d 939, 957 (9th Cir. 2002) (citing Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir.1996)). The

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Court must determine whether the alleged misconduct has rendered a trial fundamentally unfair.

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Darden, 477 U.S. at 183.

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To grant habeas relief, this Court must conclude that the state court's rejection of the
prosecutorial misconduct claim “was so lacking in justification that there was an error well

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understood and comprehended in existing law beyond any possibility for fairminded

11

disagreement.” Parker, 132 S.Ct. at 2155 (quoting Harrington, 131 S.Ct. at 767–87).

12

In determining whether the prosecutor's remarks rendered a trial fundamentally unfair, the

13

remarks must be analyzed in the context of the entire proceeding. Boyde v. California, 494 U.S.

14

370, 385 (1990); Darden, 477 U.S. at 179-182. Furthermore, counsel are “given latitude in the

15

presentation of their closing arguments, and courts must allow the prosecution to strike hard

16

blows based on the evidence presented and all reasonable inferences therefrom.” Ceja v. Stewart,

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97 F.3d 1246, 1253– 1254 (9th Cir.1996) (quoting United States v. Baker, 10 F.3d 1374, 1415

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(9th Cir.1993)). A reviewing court should consider challenged remarks in light of the realistic

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nature of closing arguments at trial. “Because ‘improvisation frequently results in syntax left

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imperfect and meaning less than crystal clear,’ ‘a court should not lightly infer that a prosecutor

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intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through

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lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.’”

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Williams v. Borg, 139 F.3d 737, 744 (9th Cir. 1998) (quoting Donnelly v. DeChristoforo, 416

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U.S. 637, 646–647 (1974)). Factors to be considered in determining whether habeas corpus relief

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is warranted include whether the prosecutor manipulated or misstated the evidence; whether his

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comments implicated other specific rights of the accused; whether the objectionable content was

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invited or provoked by defense counsel's argument; whether the trial court admonished the jurors;

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and the weight of evidence against the defendant. Darden, 477 U.S. at 181-82. Finally, even
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when prosecutorial misconduct rises to the level of a due process violation, such misconduct

2

provides grounds for habeas relief only if that misconduct is prejudicial under the harmless error

3

test articulated in Brecht v. Abrahamson, 507 U.S. 619, 637–638 (1993).

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5

b. Analysis
The Fifth DCA reasonably determined that the prosecutor’s comments did not constitute

6

misconduct. As noted by the respondent, the prosecutor did not misstate the evidence. In

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response to Petitioner’s characterization of the victim as a crack addict and a druggie, the

8

prosecutor directed the jury to the victim’s criminal record and argued that the victim had not

9

sustained a single drug arrest. This was an accurate statement of her criminal record and fair

10

argument considering Petitioner’s attack on the victim’s reputation and credibility. That the

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CLETS report did not contain earlier vehicle code violations or a petty theft conviction was not

12

prejudicial, since the trial court had ruled them inadmissible as too remote in time.

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Certainly, a rational jurist could have found that the prosecutor’s remark did not “so

14

infect[] the trial with unfairness as to make the resulting conviction a denial of due process.”

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Darden, 477 U.S. at 183. Therefore, the claim should be rejected.

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3.

Juror Misconduct

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Finally, Petitioner claims the trial court violated his constitutional rights to an impartial

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jury, a fair trial, and due process during the sanity phase of the trial when it refused to investigate

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whether Juror No. 12 was at times sleeping through the trial.

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This claim was also raised on direct appeal and denied by the Fifth DCA in the last
reasoned decision, as follows:
As mentioned above, defendant pleaded not guilty, and not guilty by reason of
insanity. After his conviction on the substantive offenses, the same jury heard
evidence in the sanity phase and found he was sane when he committed the
offenses.
As to the sanity phase, defendant contends the court abused its discretion when it
failed to investigate allegations that Juror No. 12 was asleep during his sanity trial,
and the court should have granted his motion for a new sanity trial because of
these allegations. As the record will show, the court carefully monitored the jurors'
responsiveness and attention levels during the lengthy proceedings, and it did not
abuse its discretion in this matter.

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A. Juror Misconduct and New Trial Motions
Section 1089 authorizes the trial court to discharge a juror at any time before or
after the final submission of the case to the jury if, upon good cause, the juror is
“found to be unable to perform his or her duty.” Such good cause may exist if a
juror is sleeping or inattentive. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388,
411; People v. Bradford (1997) 15 Cal.4th 1229, 1349 (Bradford); People v.
Bonilla (2007) 41 Cal.4th 313, 350 (Bonilla); People v. Johnson (1993) 6 Cal.4th
1, 21, overruled on other grounds by People v. Rogers (2006) 39 Cal.4th 826, 878–
879.)

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Once the court is placed on notice that good cause to discharge a juror may exist,
“it is the court's duty ‘to make whatever inquiry is reasonably necessary’ to
determine whether the juror should be discharged. [Citation.]” (People v. Espinoza
(1992) 3 Cal.4th 806, 821.) “A juror's inability to perform ... ‘must appear in the
record as a “demonstrable reality” and bias may not be presumed.’ [Citation.]”
(People v. Beeler (1995) 9 Cal.4th 953, 975.) “A juror must not be discharged for
sleeping unless there is convincing proof the juror actually slept during trial.
[Citations.]” (People v. Bowers (2001) 87 Cal.App.4th 722, 731.)
Both the scope of the court's inquiry and the ultimate decision whether to retain or
discharge a juror are committed to the sound discretion of the trial court. (Bonilla,
supra, 41 Cal.4th at p. 350.) If any substantial evidence exists to support the trial
court's exercise of its discretion under section 1089, the court's action will be
upheld on appeal. (Bradford, supra, 15 Cal.4th at p. 1351.)
The court has the discretion whether to conduct an evidentiary hearing to resolve
factual disputes raised by a claim of juror misconduct. (People v. Avila (2006) 38
Cal.4th 491, 604.) “[T]he mere suggestion of juror ‘inattention’ does not require a
formal hearing disrupting the trial of a case. [Citation.]” (People v. Espinoza,
supra, 3 Cal.4th at p. 821.) A trial court's “self-directed inquiry, short of a formal
hearing,” may be adequate under the state and federal Constitutions where the
court is alert to the danger of juror inattention, closely observes the jurors, and
makes specific observations about their demeanors. (People v. DeSantis (1992) 2
Cal.4th 1198, 1234.)
When a defendant moves for a new trial based on jury misconduct, the trial court
undertakes a three-part inquiry. “First, the court must determine whether the
evidence presented for its consideration is admissible.... [¶] Once the court finds
the evidence is admissible, it must then consider whether the facts establish
misconduct.... [¶] Finally, if misconduct is found to have occurred, the court must
determine whether the misconduct was prejudicial. [Citations.]” (People v. Duran
(1996) 50 Cal.App.4th 103, 112–113.) “‘As a general rule, juror misconduct
“raises a presumption of prejudice that may be rebutted by proof that no prejudice
actually resulted.” [Citations.]’ [Citation.] In determining whether misconduct
occurred, ‘[w]e accept the trial court's credibility determinations and findings on
questions of historical fact if supported by substantial evidence. [Citations.]
Whether prejudice arose from juror misconduct, however, is a mixed question of
law and fact subject to an appellate court's independent determination. [Citations.]’
[Citation.]” (People v. Majors (1998) 18 Cal.4th 385, 417.)

26
B. The Sanity Phase
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On October 23, 2012, defendant's jury trial began in the guilt phase on the
substantive offenses. On November 5, 2012, defendant was convicted as charged,
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and the great bodily injury enhancements were found true.

2

On November 7, 2012, the court convened the sanity phase with the same jury.
The defense presented expert testimony from Dr. Howard Terrell, a psychiatrist,
and Dr. Laura Geiger, a psychologist, who testified defendant was not legally sane
when he committed the offenses.

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After Dr. Geiger's defense testimony, defendant refused to appear in court for the
remainder of the sanity phase trial.
The prosecution's experts were Dr. Philip Seymour, a psychologist, and Dr.
Thomas Callahan, a psychiatrist, who testified to the opposite conclusion, that
defendant was legally sane when he attacked Fulmer. All four experts testified in
great detail about defendant's lengthy mental health history and were subject to
extensive cross-examination about their conclusions.
C. The Court's Discussion About the Jurors
During the sanity phase, the court repeatedly expressed its concern about the
lengthy trial's potential impact on the jurors' financial situations and their attention
spans. On the second day of the sanity phase, the court noted that Juror No. 8
worked in the evenings, he had been late the previous day, and he “was sitting
there with his eyes closed a good portion of the time yesterday.” The prosecutor
said he noticed the same thing. The court said that other jurors were doing that too
and encouraged the parties to stay on schedule.
Defense counsel said he wanted the jury to pay attention, but he would be open to
a mistrial on the sanity phase. The court admonished defense counsel for causing
further delays with untimely motions. Counsel replied he was doing his best to
obtain the necessary medical records for the sanity phase. The court said that the
records that defense counsel had just produced were inadmissible and directed the
parties to press on.

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Later in the sanity phase, the court said the jurors were sitting very patiently, but
they were becoming alienated from the process and it was taking too long.
D. Comments About Whether the Jurors were Sleeping
On November 15, 2012, the jury retired to deliberate in the sanity phase. While the
jury was outside the courtroom, defense counsel told the court that he had received
information from Curtis McAfee, a paralegal student who had been sitting in the
courtroom and observing the trial. McAfee told counsel that one of the jurors was
asleep for a half-hour the previous day. Defense counsel said he had been
watching the juror, but he had not seen anyone sleeping. The prosecutor said
McAfee also told him that a juror was sleeping and had pointed to Juror No. 12's
seat.

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The court said it had been monitoring the entire jury and had been concerned about
Juror No. 8, who had been working in the evenings. The court noticed Juror No.
8's eyes were closed but kept watching and determined it was a “listening
technique,” and Juror No. 8 was otherwise moving around in the chair. The court
had seen other jurors periodically close their eyes and rest for short periods of
time. The court had never seen Juror No. 12 fall asleep or “go into behavioral
modes that might think [sic ] he was sleeping.” The court said it never saw
anything that would have required stopping the proceedings.
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The prosecutor agreed with the court's observations about Juror No. 8, and said he
watched Juror No. 8 and realized the juror was engaged and listening even when
the juror's eyes were closed. The prosecutor had not seen Juror No. 12's eyes shut
during trial.

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The courtroom deputy provided the most detail about Juror No. 12, and said that
McAfee brought the matter to the deputy's attention at the time.
“[McAfee] waved at me in the middle of [sic ] and I looked at him and he
put his hands together like someone was sleeping and then pointed to the
jury box. When I looked over I saw Juror Number 12 with his eyes closed.
He—I don't know if he was asleep or not, but Juror 11 looked at me and I
told her to shake Juror 12, and when she shook him he didn't appear to
have been startled like he was awoken [sic]. He just simply opened his
eyes.” (Italics added.)
The court decided not to take further action and it did not question Juror No. 12.
Later on November 15, 2012, the jury found defendant was sane when he
committed the offenses.

11
E. Motion for New Trial
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Defendant filed a motion for a new sanity trial, primarily based on the claim that
the jury failed to properly deliberate because the verdict was returned in a short
time. [N.23] Defendant also argued a new trial should be granted because Juror
No. 12 was asleep and the court failed to investigate the matter.
[N.23] Defendant's motion asserted the jury deliberated for four minutes.
According to the minute order, the jury deliberated for 11 minutes.

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Defendant's motion was supported by an unsworn declaration from the defense
investigator, who spoke to McAfee after the trial. According to the investigator's
declaration, McAfee said he saw a juror who was sound asleep for about 30
minutes. McAfee said he notified the bailiff, who spoke to the court reporter.
McAfee also told the defense attorney what he saw. [N.24]

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[N.24] McAfee, who allegedly saw Juror No. 12 was asleep, did not appear
at the hearing on the new trial motion. The defense submitted an unsworn
memo from the defense investigator about his unsuccessful efforts to
subpoena McAfee to testify at the hearing on the new trial motion.

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F. Hearing on New Trial Motion

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At the hearing on the new trial motion, the parties primarily addressed the length
of deliberations and whether the jurors had performed their sworn duties or rushed
to a verdict in the sanity phase.
The court also addressed defendant's claim that Juror No. 12 was asleep for 30
minutes during the sanity phase. The court accepted the declaration from the
defense investigator about his unsuccessful efforts to subpoena and obtain the
presence of McAfee, who purportedly saw that Juror No. 12 was asleep.

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In arguing the motion, both the prosecutor and defense counsel stated they met
with members of the jury after the sanity verdicts were returned and the jurors
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were excused. Defense counsel could not recall if Juror No. 12 was present for this
conversation. The prosecutor said Juror No. 12 was present and participated in a
collective conversation and group dialogue with both attorneys and the other jurors
about the case.

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The court asked the parties whether any of the jurors said anything which would
question the integrity of the verdict. The prosecutor said no. Defense counsel said
he did not have that impression.

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The court met with the jurors before they spoke with the two attorneys. The court
thanked the jurors for their service, did not address the specific facts of the case,
and offered to answer questions about the trial process. “And in the course of that
I'm looking for things that might indicate that there is a reason to doubt the
integrity of the verdict.” The judge had experienced situations following other
trials where jurors disclosed they were not comfortable with the verdict or
something similar. “No one disclosed to me any level of discomfort with the
verdict.”

15

The court stated that if the jurors “who remained behind” had any misgivings
about the verdict after they were discharged, “don't you think you would have
heard it? Don't you think somebody would have said something was wrong here?
Don't you think that some at least inkling of discomfort from some of the jurors or
a juror would have been exposed to you? Why do you think I polled the jury?
That's why I do that. I don't trust the fact that a piece of paper can be handed to me
signed off by one person and that necessarily indisputably accounts for what
happened in a jury room. That's why I go through that process. That's why I ask
each and every one of those jurors, and I ask them two things. I ask them, is this
your verdict and is this the verdict that you reached unanimously with everybody
else?”

16

The court also addressed the jurors' attention levels during the sanity phase.

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“There were times when I brought it up on my own motion. There were
times when it was brought to my attention by the deputy, I believe, and by
Madam Clerk, I believe, at one time. There was a time when this person
who was out in the audience brought it to somebody's attention and we
acted on it. I made a record during the trial that I was monitoring the
attention level of everybody ... in that jury and I was concerned about it at
all times. I specifically focused on people who I thought might be dozing
off, and I looked to monitor what their actual listening behaviors were.
There were people who did, in fact, look to be nodding off, but I could see
that they were in fact doing something with their hands or with their leg
that they would acknowledge certain voice intonations or certain changes
in loudness or something like that. I was monitoring the thing through the
entire process.”
The court found there was no reason to doubt the integrity of the jury's verdict, and
no evidence the verdict was misguided or the product of some bias or malfeasance.

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G. Analysis
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Defendant raises two issues. First, defendant contends the court should have halted
the jury's deliberations during the sanity phase and conducted an investigation into
whether Juror No. 12 had been sleeping during the trial. Second, defendant argues
that since the court failed to question any of the jurors about this issue, it should
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have granted his motion for a new sanity trial because it was impossible to
determine whether Juror No. 12 heard the disputed testimony about defendant's
sanity.
The court did not ignore defense counsel's information that Juror No. 12 was
allegedly sleeping. Indeed, the court repeatedly stated that it was monitoring the
jurors' attention levels, and encouraged the parties to expeditiously present their
cases in order to avoid a mistrial because of the lengthy proceedings.

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When defense counsel advised the court about McAfee's information that Juror
No. 12 appeared to have been sleeping, the court immediately responded to
counsel's concern and began the inquiry by questioning courtroom personnel.
While the attorneys had been concerned about Juror No. 8, they had not noticed
whether Juror No. 12 had been asleep. The court said it had never seen Juror No.
12 fall asleep or “go into behavioral modes that might think [sic] he was sleeping,”
or anything that would have required stopping the trial.

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The courtroom deputy provided the detailed explanation that Juror No. 12's eyes
were closed. The deputy did not know if Juror No. 12 was asleep; Juror No. 11
shook Juror No. 12; and, upon being shaken, Juror No. 12 “didn't appear to have
been startled like he was awoken [sic]. He just simply opened his eyes.”
The court did not abuse its discretion by the nature of its inquiry or its decision not
to take further action. Although defendant argues the court should have conducted
a formal inquiry of Juror No. 12 and the other jurors, the trial court monitored the
entire jury during the lengthy trial and it was “in the best position to observe” the
jurors' demeanors and determine if additional inquiries were required. (People v.
Beeler, supra, 9 Cal.4th at p. 989, overruled on other grounds in People v. Pearson
(2013) 56 Cal.4th 393, 462; People v. Schmeck (2005) 37 Cal.4th 240, 298.) The
court's “self-directed inquiry” resulted in the explanation by the courtroom deputy
which addressed the concern raised by McAfee during deliberations. Moreover,
the deputy's explanation rebutted defendant's later allegations, based on the
investigator's unsworn hearsay declaration, that McAfee said Juror No. 12 was
asleep during the sanity phase.

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Based on the record before the court, it did not abuse its discretion when it
addressed defense counsel's concerns about Juror No. 12 or when it denied
defendant's motion for a new sanity trial.

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Pullen, 2015 WL 847688, at *17–21.
a. Legal Standard

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While criminal defendants have a Sixth Amendment right to trial by a fair and impartial

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jury, Duncan v. Louisiana, 391 U.S. 145, 149 (1968), Irvin v. Dowd, 366 U.S. 717, 722 (1961),

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not every incident of juror misconduct requires a new trial, United States v. Hendrix, 549 F.2d

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1225, 1229 (9th Cir.), cert. denied, 434 U.S. 818 (1977). The presence of a sleeping juror during

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trial does not, per se, deprive a defendant of due process, a fair trial, or an impartial jury. Tanner

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v. United States, 483 U.S. 107, 126-27 (1987).
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“The trial judge has considerable discretion in determining whether to hold an

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investigative hearing on allegations of jury misconduct and in defining its nature and extent.”

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United States v. Barrett, 703 F.2d 1076, 1083 (9th Cir. 1983). Where a juror has been found to be

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sleeping, a new trial may not be required if the court determines the juror “did not miss essential

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portions of the trial and was able fairly to consider the evidence.” Id. at 1083 n. 13.

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b. Analysis

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The state trial court conducted an inquiry into the matter when it was brought to its

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attention. The court noted its own careful observations of the jury throughout the sanity phase in

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light of the length of the trial. It noted one juror who closed his eyes did not appear to be asleep;

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rather, it appeared to be a listening mechanism since the juror would visibly respond to the

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testimony even though his eyes were closed. As to Juror No. 12, the trial judge stated that despite

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having carefully watched the jury throughout the trial, he had never seen Juror No. 12 fall asleep.

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He inquired with others about the juror. The bailiff stated that at one point he watched another

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juror nudge Juror No. 12, but Juror No. 12 was not startled awake and merely opened his eyes.

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Following this inquiry, the court determined as a matter of fact that sleep was not a problem for

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the jurors in question. Petitioner fails to point to any clear and convincing evidence to rebut this

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factual determination. Accordingly, the Court must presume that the state court determined

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correctly that the jurors did not sleep during a significant portion of the trial, see 28 U.S.C. §

19

2254(e)(1), and therefore, that the jurors’ behavior did not rise to the level of a constitutional

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violation. See Barrett, 703 F.2d at 1083 n. 13 (“[E]ven if the juror in the present case is found to

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have been asleep during portions of the trial, a new trial may not be required if he did not miss

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essential portions of the trial and was able fairly to consider the case.”); see also United States v.

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Springfield, 829 F.2d 860, 864 (9th Cir. 1987) (denying sleeping juror claim where trial court had

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found that juror missed only “insubstantial” portions of the trial). Therefore, the claim should be

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denied.

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IV.

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RECOMMENDATION
Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be

DENIED with prejudice on the merits.
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This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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twenty-one days after being served with a copy of this Findings and Recommendation, any party

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may file written objections with the Court and serve a copy on all parties. Such a document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies

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to the Objections shall be served and filed within ten court days after service of the Objections.

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The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C).

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The parties are advised that failure to file objections within the specified time may waive the right

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to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

April 24, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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