Gleffe v. Adams et al

Filing 16

ORDER signed by Circuit Judge Mary M. Schroeder on 8/13/2009 DENYING petitioner's 1 Application for Writ of Habeas Corpus. This action is TERMINATED. (Marciel, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O n August 23, 2007, David Lewis Gleffe ("Petitioner"), a California state p riso n er proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U .S .C . § 2254. On February 8, 2008, Respondent filed an answer. Petitioner ch allen g es his 2003 convictions for stalking while a restraining order was in effect, w itn ess intimidation, and making criminal threats, and his combined sentence of n in e years. He asserts a number of constitutional violations, including insufficient e v id e n c e to support his convictions, lack of a unanimous verdict, improper ad m issio n of impeachment evidence, several jury instruction errors, and u n co n stitu tio n al enhancement of his sentence on the basis of facts not submitted to th e jury. For the reasons set forth below, the court denies the petition.
DAVID LEWIS GLEFFE, ) ) Petitioner, ) v. ) ) MIKE MCDONALD, WARDEN, ) ) Respondent. ) _____________________________________ ) Case No. 2:07-CV-1728-MMS ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

BA CK GR OU ND T h e following background facts are adapted from the unpublished decision o f the California Court of Appeal. P etitio n er's convictions relate to his actions near the end of his romantic relatio n sh ip with Julie J., the victim in this case. Petitioner and Julie began dating in March 2002, but by May or June, their relationship began to deteriorate. Between August and September of 2002, several violent confrontations, in c o m b in a tio n with Petitioner's erratic behavior, led Julie to obtain two temporary restrain in g orders against Petitioner. Despite the restraining orders, however, Julie an d Petitioner continued to be in contact. They drove together to the October 16, 2 0 0 2 hearing at which the second temporary restraining order became permanent. After the permanent restraining order was issued, Julie and Petitioner had sexual relatio n s several times. Julie testified at trial that she was concerned for her safety an d thought that "things would go more smoothly if she eased out of the r e la tio n s h ip . O n the evening of November 24, 2002, Julie returned home after a day out w ith friends and found Petitioner outside her apartment. She called the police from a friend's home, and the police arrested Petitioner for violating the restraining o rd er. A few days later, Petitioner had his mother place a three-way phone call to Ju lie, in which Petitioner proposed marriage. When Julie refused his proposal, P etitio n er began swearing at her. Petitioner then began a series of harassing telep h o n e messages, which were played for the jury at trial. On December 3 and 4, 2 0 0 2 , Petitioner left approximately fifteen messages on Julie's answering machine. Petitioner threatened to come after Julie if she called the police, stating at one p o in t, "[D]on't call the cops on me again, because if you do it's problems." He also stated that he would discredit and embarrass Julie if she testified against him

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

in court, and would pursue legal action against her: I hope and I pray that you call me before we go to court, because once I get into that courtroom a lot of shit is going to be revealed about you th at's going to embarrass the shit out of you. Because you think you got sh it on me? Girl, I got fucking smut on you like a motherfucker, and it's g o in g to all come out. . . . . Furthermore, after I discredit you in court and have you thrown out o f court as a fucking witness I will come back, and I will sue you, and I w ill have you charged with false arrest, intimidating me, as a restraining m e, your roommate, as having no right to file a fucking false arrest ­ a false arrest report. . . . I will subpoena you both into court, and I will h av e you both convicted of fucking, misdemeanor crimes that will both g e t you at least six months to a year. In several messages, Petitioner also threatened to have his sister contact Julie an d her roommate if they made trouble for him: M y sister is going to come introduce herself to [your roommate], because yo u r roommate is not part of my fucking restraining order. My sister is n o t part of your roommate's restraining order. My sister, you know what m y sister is about, and if my sister has got to come down here, Julie, it's g o in g to be fucking hell for your roommate to pay. Because my sister is not going to let this happen to her brother, and I hope you're not going to either. . . . . Have a nice day, and I'll see you in court tomorrow. You open your m o u th , and you say something stupid, and you get me put back in jail, th en I guarantee my sister will be at your house. That's a fact. Don't p lay with me. My sister ain't the kind of person that plays, and, uh, she k n o w s everything about you. B e tw e en December 12 and December 18, 2002, Petitioner left fifty additional m essag es on Julie's answering machine. When Julie left to spend the holidays w ith her family, Petitioner left ten threatening messages on her family's answering m a c h in e . Petitioner also confronted Julie in person several times in December 2002. On the first occasion, he approached her in a parking lot and demanded that she d r o p the charges against him. On the second occasion, several days later, Julie saw P etitio n er's van parked down the street from her workplace. When she left work, P etitio n er followed her in his van, shouting at her and demanding that she drop the

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ch arg es. When Julie stopped her car at a traffic light, he got out of his van, p o u n d e d on the windows of her car, and tried to open the doors. He stopped c h a sin g her only after she drove onto a freeway. On the third occasion, Petitioner an d a friend confronted Julie in a parking lot. Petitioner demanded that Julie drop th e charges and told her he was undergoing counseling. Julie later called Petitioner to beg him to stop harassing her. Petitioner was charged on August 7, 2003 with one count of stalking (Cal. P en al Code § 646.9(b)), one count of witness intimidation (Cal. Penal Code § 136.1(c)), and one count of making criminal threats (Cal. Penal Code § 422). The charges related to Petitioner's conduct on November 24, 2002, when he was a rr es te d outside Julie's apartment for violating the restraining order, and to conduct after that date. The jury convicted Petitioner on all three counts. At the sentencing h earin g , the court imposed an upper-term sentence of four years for Count 1, and d o u b led the four-year term to eight years under California's Three Strikes Law, C al. Penal Code § 667(e)(1), because the offense was Petitioner's second felony strik e conviction. The court then imposed a term of one year for Count 2, to be serv ed consecutively. Although the court set a term of two years for Count 3, the c o u r t stayed imposition of that sentence, leaving Petitioner with a total prison term o f nine years. On December 7, 2004, Petitioner, represented by counsel, appealed to the C a lif o r n ia Court of Appeal, raising the same claims he raises in the present federal h ab eas petition. The Court of Appeal affirmed the trial court's judgment on D e ce m b e r 27, 2005. The Supreme Court of California denied review. Petitioner th en filed a petition for writ of habeas corpus in the Sacramento County Superior C o u rt on May 18, 2007, raising one claim: that his upper-term and consecutive sen ten cin g was unconstitutional under Cunningham v. California, 549 U.S. 270

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(2 0 0 7 ). The court denied the petition on July 2, 2007. Petitioner filed this federal petition for writ of habeas corpus, pursuant to 28 U .S .C . § 2254, on August 23, 2007. DISCUSSION P e titio n e r asserts the following challenges to his convictions and sentence: (1 ) the evidence was insufficient to support his convictions; (2) the jury reached a "co m p ro m ise verdict" rather than a unanimous verdict; (3) he was improperly im p e a ch e d with evidence of a prior conviction; (4) the trial court omitted an e le m e n t, improperly defined another element, and failed to instruct the jury r eg a r d in g lesser-included offenses of the stalking charge; (7) the trial court erro n eo u sly defined a slang term used by Petitioner in a phone message; and (8) P etitio n er's upper-term consecutive sentences violated Cunningham, 549 U.S. 270 (2 0 0 7 ), and Blakely v. Washington, 542 U.S. 296 (2004). A. S t a n d a r d of Review T h e petition is governed by the provisions of the Anti-Terrorism and E f fe ctiv e Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). AEDPA provides th e following standards for federal habeas review of state court decisions: (d ) An application for a writ of habeas corpus on behalf of a person in c u s to d y pursuant to the judgment of a State court shall not be granted w ith respect to any claim that was adjudicated on the merits in State co u rt proceedings unless the adjudication of the claim­ ( 1 ) resulted in a decision that was contrary to, or involved an u n r ea so n a b le application of, clearly established Federal law, as d eterm in ed by the Supreme Court of the United States; or (2 ) resulted in a decision that was based on an unreasonable d eterm in atio n of the facts in light of the evidence presented in the S tate court proceeding. 2 8 U.S.C. § 2254(d)(1)-(2). The Supreme Court has stated that a federal court may grant habeas relief u n d er the "contrary to" clause "if the state court arrives at a conclusion opposite to 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

th at reached by this Court on a question of law or if the state court decides a case d if fe re n tly than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Habeas relief may be granted u n d e r the "unreasonable application" clause "if the state court identifies the correct g o v ern in g legal principle from [the Supreme] Court's decisions but unreasonably a p p lie s that principle to the facts of the prisoner's case." Id. To warrant habeas relief, the state court's application of federal law must be more than erroneous; it m u s t be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). A federal habeas court's examination is focused on the "last reasoned d ecisio n " of the state courts. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). The "last reasoned decision" in this case is the December 27, 2005 decision of the C alifo rn ia Court of Appeal, except with respect to the Cunningham claim, for w h ich the "last reasoned decision" is the Superior Court's July 2, 2007 denial of P etitio n er's state habeas petition. B. S u f fic ie n c y of the Evidence P e titio n e r's first challenge concerns the sufficiency of the evidence u n d er lyin g his convictions. He challenges the jury's apparent reliance on Julie's testim o n y, which he characterizes as inherently unreliable, internally inconsistent, an d inconsistent with her actions. The California Court of Appeal rejected this claim on direct review, accepting the jury's implicit determination that Julie's testim o n y was credible and finding that her testimony, in combination with the o th er evidence presented, was sufficient to support Petitioner's convictions. In reviewing a sufficiency of the evidence challenge, the court must d eterm in e whether, "viewing the evidence in the light most favorable to the p ro secu tio n , any rational trier of fact could have found the essential elements of the crim e beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979)

6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(o rig in al emphasis). The key question is not whether the court is convinced of the d e f en d a n t's guilt beyond a reasonable doubt, but rather, "whether rational jurors co u ld reach the conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 3 0 3 , 306 (9th Cir. 1991). 1. C o u n t One

P e titio n e r was charged in Count 1 with stalking while a restraining order w a s in effect, in violation of Cal. Penal Code § 646.9(b), for his actions between N o v em b er 24, 2002 (the date of his arrest) and December 25, 2002. A conviction u n d er section 646.9(b) requires the prosecution to prove that, while a restraining o rd er was in effect, the defendant "willfully, maliciously, and repeatedly fo llo w [e d ] or willfully and maliciously harasse[d] another person and . . . ma[de] a c re d ib le threat with the intent to place that person in reasonable fear for his or her safety." The statute defines harassment as engaging in "a knowing and willful co u rse of conduct directed at a specific person that seriously alarms, annoys, to rm en ts, or terrorizes the person, and that serves no legitimate purpose." Cal. P e n a l Code § 646.9(e). At the time relevant here, the statute also stated that h a r as sm e n t must be "such [conduct] as would cause a reasonable person to suffer s u b s ta n tia l emotional distress, and must actually cause substantial emotional d is tr es s to the person." Cal. Penal Code § 646.9(e) (2000). P etitio n er himself admitted during direct examination that the phone m e ss ag e s he left for Julie were intended to place her in reasonable fear for her s af ety . Julie testified that the telephone calls and in-person confrontations scared an d disturbed her, and this reaction was confirmed by other witnesses. Julie stated, "I was scared by the calls. I was very disturbed by them. I don't think I would just call them pitiful and pathetic. I think they are extremely scary and disturbing." J u lie 's mother testified that when Julie heard the messages Petitioner left on her

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

p a r en ts ' answering machine while she visiting them over the holidays, Julie was "terrified , frightened, sick to her stomach. It was pretty bad." Moreover, the circu m stan ces of Petitioner's confrontations, including such statements as "[D]on't call the cops on me again, because if you do it's problems," and "[Y]ou g e t me put back in jail, then I guarantee my sister will be at your house," and such co n d u ct as pounding on the windows of Julie's car while she was stopped in tr af fic , were certainly sufficient to permit a rational jury to conclude that P etitio n er's conduct would cause a reasonable person to suffer substantial distress. Petitioner's claim must be denied with respect to this count. 2. C o u n t Two

P etitio n er was charged in Count 2 with witness intimidation, in violation of C a l. Penal Code § 136.1(c)(1), for the harassing phone calls he made on December 3 and 4, 2002. Under section 136(c)(1), the prosecution must prove (1) that the d efen d an t knowingly and maliciously prevented or dissuaded, or attempted to p rev en t or dissuade, a witness or victim from attending or testifying at trial, r ep o r tin g victimization to authorities, or seeking the defendant's arrest, and (2) that th e defendant's act was "accompanied by force or by an express or implied threat o f force or violence, upon a witness or victim or any third person or the property of an y victim, witness, or any third person." Cal. Penal Code § 136.1(c)(1). The evidence of the taped phone calls Petitioner made on December 3 and 4 w as sufficient to permit a rational jury to find that each of these elements was met. During the series of calls, Petitioner attempted to dissuade Julie from giving testim o n y against him in court, both by threatening her with violence ("I'll see you in court tomorrow. You open your mouth, and you say something stupid, and you g et me put back in jail, then I guarantee my sister will be at your house.") and by s ta tin g he would disgrace her in court ("I hope and I pray that you call me before

8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

w e go to court, because once I get into that courtroom a lot of shit is going to be rev ealed about you that's going to embarrass the shit out of you."). He also attem p ted to dissuade her from reporting him to the police or seeking his arrest, ag ain threatening her with violence: "[D]on't call the cops on me again, because if yo u do it's problems." Petitioner's claim that this count was not supported by su fficien t evidence is without merit and will be denied. 3. C o u n t Three

In Count 3, Petitioner was charged with making criminal threats against Ju lie, in violation of Cal. Penal Code § 422, for the harassing phone calls made on D ecem b er 3 and 4, 2002. Section 422 requires proof that the defendant (1) w illfu lly and unlawfully threatened to commit a crime which would result in death o r great bodily injury to another person, (2) with the specific intent that the statem en t be taken as a threat, (3) causing the threatened person "reasonably to be in sustained fear for his or her own safety or for his or for his or her immediate fam ily's safety." "Immediate family" includes anyone who resides in the th reaten ed person's household. The evidence presented at trial, including Julie's testimony and the tapes of P etitio n er's telephone calls, was clearly sufficient to permit a rational jury to co n clu d e that Petitioner threatened Julie with death or great bodily injury, with the s p e cif ic intent that his statements would be taken as threats. For example, P e titio n e r stated that if Julie made trouble for him, he would have his sister attack Ju lie and her roommate: "You open your mouth, and you say something stupid, an d you get me put back in jail, then I guarantee my sister will be at your house. That's a fact. Don't play with me. My sister ain't the kind of person that plays, a n d , uh, she knows everything about you." Petitioner contends, however, that the evidence was not sufficient to support

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a conclusion that Julie actually feared for her safety, given her continuing contact w ith him after the harassing phone calls were made. In addressing this contention, th e Court of Appeal found the instances of Julie's contact with Petitioner after his arrest consisted of the three-way phone call initiated by Petitioner's mother at his u rg in g and the occasions on which Petitioner confronted Julie at her workplace. These were limited, initiated by Petitioner, and did not demonstrate a lack of fear o n Julie's part. Absent any clear and convincing evidence to the contrary, this factu al determination is entitled to a presumption of correctness. 28 U.S.C. § 2 2 5 4 (e)(1 ). Because these facts were sufficient to permit a rational jury to co n clu d e that Julie had a reasonable fear for her and her roommate's safety, P etitio n er's claim that there was insufficient evidence to support his conviction on C o u n t 3 must be denied as well. C. " C o m p r o m is e Verdict" P e titio n e r's second claim is that his right to due process was violated when th e jury reached a "compromise verdict." He contends, "Some jurors voted for g u ilt in exchange for agreement that jury would as part of its verdict condemn the b eh av io r of the victim in this case, not because defendant was guilty." Petitioner's claim depends on the following facts, as recounted by the Court of Appeal: F o llo w in g its verdicts, the jurors also sent a note to the judge, stating that "[i]n conjunction with the verdict, some members of the jury cannot in g o o d conscience provide a verdict without commenting on the conduct a n d behavior of [the victim]. Although [the victim] was not on trial, her a c tio n s throughout this period partially contributed to the charges b ro u g h t forth against [defendant] in this matter." O n direct appeal, the Court of Appeal determined that the jury's note did not in d icate a lack of a unanimous verdict. The court concluded: [T ]h e jury's note demonstrates only a belief that the victim did not h an d le defendant in a rational or effective manner, and that her inability to end her relationship with defendant contributed to the situation that o ccu rred . Nothing in the note indicates that the jury had any doubt w h a ts o e v e r that defendant committed the charged acts. The note stated 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

o n ly that the victim's behavior contributed to the charges against d e f en d a n t; it did not suggest any doubt that the charged offenses o ccu rred . The court properly construed the jury's note as expressing co n cern s about the possible punishment defendant faced, not concerns ab o u t defendant's guilt. P etitio n er fails to cite any clearly established Supreme Court precedent in su p p o rt of his claim that the verdict in this case violated his right to due process, m u c h less to demonstrate that the Court of Appeal's rejection of this claim was c o n tr ar y to or an unreasonable application of such precedent. Moreover, the Court o f Appeal's determination that the jury's note pertained to Petitioner's sentence rath er than his guilt was not an unreasonable reading of the facts. There is no in d icatio n that the jury's verdict on Petitioner's guilt was anything but a u n a n im o u s verdict. Accordingly, Petitioner is not entitled to federal habeas relief o n this claim. D. Im p ea ch m en t with Prior Felony Conviction Petitioner's third contention is that his rights to due process, confrontation an d a fair trial were violated when the prosecutor was permitted to impeach him on th e stand with evidence of a 1988 felony robbery conviction. Petitioner contends th is conviction was too "remote and inflammatory" to be admissible at his trial in 2 0 0 3 . The California Court of Appeal rejected this claim on the ground that, by failin g to object contemporaneously at trial, Petitioner forfeited any claim of error o n appeal. Petitioner's failure to object at trial constitutes a procedural bar to rev iew of this claim in federal habeas proceedings as well. A fter the prosecutor stated during a pretrial hearing that he intended to im p each Petitioner on the stand with evidence of his 1988 robbery conviction, d efen se counsel stated, "It is a crime of moral turpitude but it is 15 years old, but I also recognize that Mr. Gleffe has been in prison on various parole violations, plus n o n im p e a ch a b le priors and so I will leave it up to the Court's discretion." After a

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

d is cu s s io n among the court and counsel regarding Petitioner's record between 1 9 8 8 and 2003, which included a felony drug possession conviction and seven p a r o le violations, the trial court concluded that, in light of this intervening criminal h isto ry, the prior conviction was not too remote to be admissible for impeachment p u rp o ses. The procedural bar rule prevents federal courts from reaching the merits of a claim brought in a § 2254 habeas petition if the petitioner failed to comply with the state's requirements for preserving claims for appeal. Park v. California, 202 F.3d 1 1 4 6 , 1150 (9th Cir. 2000). For this rule to apply, the state procedural rule must p r o v id e an "adequate and independent state law basis" on which the state court can d en y relief. Id. at 1151 (quoting Coleman v. Thompson, 501 U.S. 722, 729-30 (1 9 9 1 )). The state requirement must also have been "clear, consistently applied, an d well-established at the time of the petitioner's purported default." Hanson v. M a h o n e y, 433 F.3d 1107, 1113 (9th Cir. 2006) (citation omitted). Under C alifo rn ia law, in order to preserve an objection regarding the admissibility of ev id en ce for appeal, a defendant is required to make a specific objection at trial. People v. Clark, 3 Cal. 4th 41, 125-26 (1992) ("In the absence of a timely and sp ec ific objection on the ground sought to be urged on appeal, the trial court's ru lin g s on admissibility of evidence will not be reviewed."). Although Petitioner claimed on direct appeal that the 1988 conviction was to o remote to have any probative value and that the prejudicial effect of admission o u tw eig h ed any probative value, the Court of Appeal determined that defense co u n se l's comments were not sufficiently specific to overcome California's co n tem p o ra n eo u s objection rule. Indeed, the record reflects that Petitioner's c o u n s el made a strategic decision not to object. Because the state law rule was w ell-estab lish ed at the time, and provided an independent ground for the Court of

12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

A p p eal to deny the appeal from the trial court's ruling, Petitioner is procedurally b arred from maintaining this claim in federal habeas proceedings. The claim is d e n ie d . E. J u r y Instruction Errors P etitio n er asserts a number of jury instruction errors, most of which pertain to the instructions for Count 1, the stalking charge. Petitioner contends the trial co u rt omitted an element of the offense, misdefined another element, and failed to in stru ct the jury regarding lesser-included offenses. In a challenge not related to C o u n t 1, Petitioner asserts the trial court erroneously defined a slang term P e titio n e r used in one of his telephone messages to Julie. For the reasons stated b elo w , the court finds no constitutional error in the trial court's jury instructions. J u r y instructions must inform the jury that the government bears the burden o f proving the defendant's guilt beyond a reasonable doubt on every element of the o f f en s e . Middleton v. McNeil, 541 U.S. 433, 437 (2004). In reviewing a habeas p e titio n alleging that an instruction omitted or misstated an element, the critical q u e stio n is "whether the ailing instruction by itself so infected the entire trial that th e resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1 9 9 1 ) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Even if there was an error of constitutional dimension, habeas relief is warranted only if the error a ctu a lly affected the verdict. Lara v. Ryan, 455 F.3d 1080, 1086 (9th Cir. 2006). 1. F a ilu re to instruct the jury that Petitioner must have had kn o w le d g e of the existence of the restraining order to be convicted o n Count 1

P e titio n e r's first alleged instructional error concerns the trial court's failure to instruct the jury that in order to be convicted of stalking under Cal. Penal Code § 6 4 6 .9 (b ), Petitioner must have had knowledge that a valid restraining order was in effect. The California Court of Appeal denied this claim on direct appeal. The

13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

C o u rt of Appeal found, first, that under California state law, knowledge of the e x is te n c e of a restraining order is not a statutory element of the offense. The court th en determined that even if any error had occurred, the error would be harmless, g iv e n the overwhelming evidence that Petitioner did know the restraining order w as in effect when he made the telephone calls and in-person confrontations. This w as a reasonable conclusion. T h ere is no Supreme Court precedent requiring a trial court to instruct the ju r y on something that is not an element of the offense. The instructional req u irem en t relates to elements of the crime. See Middleton, 541 U.S. at 437. Moreover, the Court of Appeal's determination that any error would be harmless w as not contrary to or an unreasonable application of Supreme Court precedent, n o r based on an unreasonable determination of the facts. Under Supreme Court h arm less-erro r precedent, an instructional error is typically harmless where the ev id en ce against the defendant is otherwise overwhelming. Brecht v. Abrahamson, 5 0 7 U.S. 619, 637-38 (1993); see also Leavitt v. Arave, 383 F.3d 809, 833 (9th Cir. 2 0 0 4 ). Here, the evidence is overwhelming that Petitioner knew that a restraining o rd er was in effect. He was present in court on October 16, 2002, when the p erm an en t restraining order against him was entered. He was arrested on N o v em b er 24, 2002, for violating the restraining order. In many of his telephone m essag es, he referred to the order, saying, for example, "My sister is going to co m e introduce herself to [your roommate], because your roommate is not part of m y fucking restraining order," and, "If you want this all to end you do as I said. You get this shit off of me. You get the restraining order dropped." Therefore, P etitio n er is not entitled to habeas relief on this claim. 2. Im p ro p er instruction regarding the meaning of Count 1's element o f "substantial emotional distress"

A t the time of Petitioner's trial, California's stalking statute required that the 14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

d e f en d a n t's conduct "would cause a reasonable person to suffer substantial em o tio n al distress, and must actually cause substantial emotional distress to the p e r so n ." Cal. Penal Code § 646.9(e) (2000). After the court instructed the jury u s in g the statutory language, the jury began deliberations. The next day, the jury a sk e d the court for a definition of "substantial emotional distress." The court resp o n d ed in writing: A s used in instruction paragraph 9.16.2, the phrase "substantial em o tio n al distress" means something more than everyday mental distress o r upset. Emotional distress includes suffering, anguish, fright, horror, n e r v o u s n e ss , grief, anxiety, worry, shock, humiliation, and shame. In d eterm in in g whether a state of emotional distress was substantial, the ju ry may consider whether an ordinary, reasonable person would be u n ab le to cope with it. C o m p lete emotional tranquility is seldom attainable in this world, and so m e degree of temporary and trivial emotional distress is part of the p r ic e of living among people. The phrase "substantial emotional d is tr es s" therefore entails a serious invasion of the victim's mental tran q u ility. The intensity and duration of the distress are factors to be c o n s id e r e d . P etitio n er asserts the court's use of this instruction, rather than an instruction in co rp o ratin g language from Schild v. Rubin, 283 Cal. Rptr. 533 (Cal. Ct. App. 1 9 9 1 ) , improperly lessened the prosecution's burden of proof on Count 1. In d e n y in g the identical claim on direct appeal, the California Court of Appeal e m p h a siz ed that Schild addressed the definition of the phrase "severe emotional d is tr es s" as used in the context of the tort of intentional infliction of emotional d is tr es s. The Court of Appeal held that the trial court's instruction was proper u n d er People v. Ewing, 76 Cal. App. 4th 199, 210-11 (1999), which held that the te rm "substantial emotional distress," as used in section 646.9, denotes a lesser d eg ree of distress than "severe emotional distress." The Court of Appeal stated, "T o rely on cases involving severe emotional distress to define substantial em o tio n al distress would be to equate the two principles. We agree with the Ewing 15

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

c o u r t that these terms are not interchangeable." To the extent Petitioner claims an instructional error under state law, his claim is not cognizable on federal habeas review. Estelle, 502 U.S. at 67-68. To th e extent he asserts that the instruction violated due process by lessening the g o v ern m en t's burden of proof, his claim is without merit. The instruction given by th e trial court did not lessen the prosecution's burden of proving the substantial em o tio n al distress element of the stalking offense. Even if the trial court had given the Schild definition describing "severe em o tio n al distress" as "highly unpleasant mental suffering or anguish from socially u n accep tab le conduct . . . . that no reasonable person in a civilized society should b e expected to endure," 283 Cal. Rptr. at 537 (internal quotation marks, alterations a n d citations omitted), Petitioner's threatening physical confrontations and more th an fifty threatening phone calls would still have provided a basis for the jury to retu rn a conviction on Count 1. A cco rd in g ly, the court denies Petitioner's claim of instructional error reg ard in g the definition of the term "substantial emotional distress." 3. F a ilu re to instruct the jury regarding lesser-included offenses of C ou n t 1

P e titio n e r contends the trial court erred by failing to give lesser-included o ffen se instructions regarding the offense of simple stalking under Cal. Penal Code § 646.9(a) and the offense of intentional and knowing violation of a protective o r d e r under Cal. Penal Code § 273.6. The Court of Appeal determined that, under C alifo rn ia law, Petitioner was not entitled to either instruction. The court stated, "I n s tr u c tio n s on a lesser included offense are necessary only if there is substantial e v id e n c e to warrant concluding that [Petitioner] was guilty of only the lesser o ffen se and not the greater." Because no clearly established Supreme Court a u th o r ity required the trial court to give lesser-included instructions in this case, 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

th e Court of Appeal's finding of no error was not contrary to or an unreasonable a p p lic atio n of any federal law. See Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) Due process does not require a lesser included instruction in a non-capital case when the evidence does not support it. In Beck v. Alabama, 447 U.S. 625, 6 2 7 (1980), the Supreme Court held that capital defendants have a due process rig h t to receive lesser-included offense instructions when the facts of the case co u ld support conviction on a lesser charge. The Court has never held that this rig h t applies in non-capital cases. Moreover the right exists in capital cases only w h e r e the evidence supports the instruction. Here, the prosecution presented o v erw h elm in g evidence that Petitioner's harassing and threatening conduct took p lace while a restraining order was in effect, demonstrating that Petitioner's co n d u ct exceeded either simple stalking or a mere restraining order violation. The ev id en ce did not, therefore, support a lesser-included offense. Petitioner's claim is d e n ie d . 4. Im p ro p er instruction regarding the meaning of "tax" in one of P e tit io n e r' s telephone messages

D u rin g one of Petitioner's telephone messages to Julie on December 4, 2 0 0 2 , he stated, "You come to court and fuck me up, I end up in jail, plan on my sister taxing your ass." Petitioner was asked about this statement during crossex am in atio n , and had the following exchange with the prosecutor and the court: P r o s ec u to r : W h a t did you mean when you said, "plan on my sister ta x in g your ass"? P e t i ti o n e r : I just wanted to get her attention, shake her up. I didn't m ean anything by it.

Prosecutor: D id you intend to scare her? P e titio n e r : A t this point I was just trying to get her attention.

P ro secu to r: A t that point in time, did you intend to place her in 17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P e titio n e r : .... Court: P e titio n e r : Court: P e titio n e r : P e titio n e r : .... Court: P e titio n e r : C o u r t:

reaso n ab le fear for her safety? N o. W h a t do you mean, you wanted to shake her up but you d id n 't want to place her in fear for her own safety? I wanted to shake her up and call me. That's it. If she was going to be shaken up ­ why would she be s h a k e n up? I mean, I see kind of a disconnect here b etw een your trying to shake her up but not place her in fear for her safety. I didn't want to place her in fear. I wanted to scare her. Y e ah . You can say scare. W h at does taxing mean? I didn't mean anything. I just ­ W h at does it mean to you? T a x in g ? Dealing with her.

O n the last day of deliberations, the jury sent a written communication to the court requesting a definition of the term "tax." The court sent the following w ritten response: "Definition of `tax' used in slang terms `taxing your ass.'" T h e meaning of the word "tax" is best determined from the context in w h i c h the defendant used the word. That is for the jury to determine. T h e Random House Webster's College Dictionary definition of the word "tax " is the non-fiscal context is as follows: 4. 5. to make serious demands on or of; burden; strain; to tax o n e 's resources. to reprove or accuse; censure or charge; to tax a person w ith laziness.

A s you may recall, the defendant was asked several times when he te stif ie d to say what he meant by that phrase. He testified, variously, that h e wanted to get [Julie's] attention; that it didn't mean anything; that it w a s just his way of dealing with her; that he meant to shake her up; that h e wanted to scare her. I must emphasize, however, that what exactly the defendant meant when 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

h e uttered those words on the voice mail message is for the jury to d e te rm in e . The dictionary definition supplied above, and the references to the defendant's testimony, are simply offered as the assistance that yo u have requested. P e titio n e r contends that the trial court's definition of the word "tax" implied an d intent to injure. He contends, "Definition used by court permitted jury to fill g a p in prosecution's case by permitting jury to infer that petitioner expressed an in ten tio n to use force or inflict injury. This improperly lightened the prosecution's b u r d e n of proof." Courts frequently look to a dictionary definition to respond to a jury's in q u ir y regarding the meaning of a term, or refer the jury to testimony given at trial th a t is relevant to such an inquiry. No federal or Supreme Court authority bars su ch procedures. The California Court of Appeal determined that the trial court's in s tr u c tio n did not lessen the prosecution's burden of proof or otherwise prejudice P etitio n er, and this holding was neither contrary to nor an unreasonable application o f any clearly established Supreme Court precedent. F. C o n stitu tio n a lity of Upper-Term Consecutive Sentence under Blakely v. W a sh in g to n and Cunningham v. California A t Petitioner's sentencing hearing, the court imposed an upper-term s en te n c e of four years for Count 1, stalking, on the ground that Petitioner had serv ed two prior prison sentences. The court doubled the four-year term to eight years on the ground that the stalking offense was Petitioner's second felony strike c o n v ic tio n , and Petitioner does not appear to challenge this calculation. The court th e n imposed a term of one year for Count 2, witness intimidation, to be served co n secu tiv ely. The court set a term of two years for Count 3, criminal threats, but stayed imposition of that sentence, leaving a total term of nine years. Petitioner contends his constitutional rights were violated when the trial c o u r t imposed an upper-term sentence on Count 1, on the ground that he had

19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

s er v e d two prior prison terms. He relies in a line of Supreme Court cases b eg in n in g with Apprendi v. New Jersey, 530 U.S. 466 (2000), and ending with C u n n in g h am , 549 U.S. 270, which established that California courts may not s en te n c e a defendant to an upper-term sentence on the basis of facts not admitted b y the defendant or found by the jury, other that the fact of a prior conviction. Petitioner also challenges the court's imposition of a consecutive sentence on C o u n t 2. For the reasons set forth below, both claims are denied. Petitioner raised the challenge to the upper-term sentence on direct appeal, b efo re the Supreme Court had decided Cunningham. The California Court of A p p eal denied the claim, and the California Supreme Court denied review. T h e United States Supreme Court decided Cunningham in 2007, holding that C alifo rn ia's determinate sentencing law ("DSL") violated the Sixth Amendment. See Cunningham, 549 U.S. at 293. Petitioner then filed a state habeas petition ch allen g in g his sentence under Cunningham. Cunningham is retroactively a p p lic ab le to Petitioner's case. See Butler v. Curry, 528 F.3d 624, 636 (9th Cir. 2 0 0 8 ). Under California's determinate sentencing regime, many criminal statutes s p e cif y three sentences that may be imposed (a lower term, middle term, and upper term ), depending on the circumstances of the case. For example, the statute of co n v ictio n for Petitioner's stalking offense provides for a lower term of two years, a middle term of three years, and an upper term of four years. See Cal. Penal Code § 646.9(b). At the time Petitioner's conviction became final, the DSL provided, "W h e n a judgment of imprisonment is to be imposed and the statute specifies three p o s sib le terms, the court shall order imposition of the middle term, unless there are c ir cu m s ta n c es in aggravation or mitigation of the crime." Cal. Penal Code § 1 1 7 0 (b ) (2005). The California Rules of Court in effect at the time of sentencing

20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

p erm itted a trial judge to find such aggravating and mitigating circumstances by a p r e p o n d e r an c e of the evidence. Cal. R. Ct. 4.420(b) (1977). The Rules of Court also provide a non-exhaustive list of aggravating and mitigating factors, including f ac to r s relating to the crime as well as factors relating to the defendant, such as p rio r adult convictions. See Cal. R. Ct. 4.421. Before Cunningham, Supreme Court decisions established that any fact that in c r ea se s a defendant's sentence beyond the statutory maximum must be admitted b y the defendant or submitted to a jury and proved beyond a reasonable doubt. See U n ited States v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 2 9 6 (2004); Apprendi, 530 U.S. 466 (2000). Following directly from Blakely, the C o u r t thus held in Cunningham that under California's DSL, the "statutory m a x im u m " referred to in the predecessor cases is the middle-term sentence, m e an in g that an upper term cannot be imposed on the basis of facts not admitted b y the defendant or found by the jury. Cunningham, 549 U.S. at 868. The im p o rtan t exception to this rule is enhancement of a sentence on the basis of a prior co n v ictio n . The Supreme Court recognized in Cunningham, as it had in prior cases, that enhancement of a sentence on the basis of prior convictions does not v io late the Sixth Amendment. Cunningham, 549 U.S. at 282; accord Blakely, 542 U .S . at 301; Apprendi, 530 U.S. at 490; Almendarez-Torres v. United States, 523 U .S . 224, 244 (1998). Petitioner asserts that he is entitled to be resentenced because the trial court im p o s ed an upper-term sentence on the basis of his two prior prison terms, rather th an enhancing his sentence on a permissible basis such as a prior conviction or so m e other fact found by the jury. See Cunningham, 549 U.S. at 868; Blakely, 542 U .S . at 303; Apprendi, 530 U.S. at 490. The state habeas court denied the claim on th e ground that any error in imposing an upper-term sentence with reference to

21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

P etitio n er's prior "prison terms" was harmless beyond a reasonable doubt because th e terms represented prior convictions which provided a permissible basis for e n h a n c in g Petitioner's sentence. For the following reasons, this court agrees that an y constitutional error in imposing Petitioner's sentence was harmless. California law permits trial judges to enhance a sentence to the upper-term if a defendant has suffered any prior adult convictions. See Cal. R. Ct. 4.421(b)(2). Using Petitioner's prior convictions, including his 1988 robbery conviction and a su b seq u en t drug possession conviction, to enhance his sentence would not violate th e Constitution. Cunningham, 549 U.S. at 282. Therefore, the state habeas court w as not unreasonable in determining that any error in enhancing the sentence on th e basis of the prior prison terms was harmless beyond a reasonable doubt, b ecau se the trial court's enhanced sentence was supported by the prior convictions asso ciated with those prison terms. Petitioner is not entitled to habeas relief on this c la im . P etitio n er's final challenge is to the trial court's imposition of a consecutive sen ten ce for Count 2, witness intimidation. He contends that the court violated his S ix th Amendment right to a jury trial by imposing a consecutive sentence on the b a s is of facts he argues were not found by the jury ­ namely, that Count 2 involved "d ifferen t conduct" than Count 1, stalking. The Supreme Court has expressly held, h o w ev er, that the Apprendi line of cases does not prohibit judges from making the f ac tu a l determinations necessary for imposition of consecutive rather than co n cu rr en t sentences. Oregon v. Ice, 129 S. Ct. 711, 714-15 (2009). Petitioner's claim regarding the imposition of a consecutive sentence for Count 2 must fail. C O N C L U S IO N F o r the reasons stated above, the Court DENIES the petition for writ of h ab eas corpus.

22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS SO ORDERED.

DATED:

A u g u st 13, 2009 /s/ Mary M. Schroeder M A R Y M. SCHROEDER, U n ited States Circuit Judge S ittin g by designation

23