Powell v. Runnels
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Timothy J. Bommer on 10/27/2011 RECOMMENDING that the 1 Petition for Writ of Habeas Corpus be denied. Referred to Judge Morrison C. England, Jr. Objections to F&R due within 21 days. (Michel, G)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GREGORY ANTHONY POWELL,
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Petitioner,
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vs.
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2: 09 - cv - 1598 - MCE TJB
D.L. RUNNELS,
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Respondent.
FINDINGS AND RECOMMENDATIONS
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Petitioner, Gregory Anthony Powell, is a state prisoner proceeding with a pro se petition
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for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a
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maximum sentence of 19 years six months after a jury convicted him on one count of attempted
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voluntary manslaughter and one count of assault with a deadly weapon. The jury also found true
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the sentencing enhancements that Petitioner personally used a firearm in committing the offenses
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and that he inflicted great bodily injury. Petitioner raises five claims in this federal habeas
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petition; specifically: (1) the trial court erred in admitting into evidence the victim’s preliminary
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hearing testimony when the victim was unavailable to testify at trial in violation of Petitioner’s
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right to confront the witnesses against him (“Claim I”); (2) the prosecution removed a juror based
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on the juror’s race in violation of Batson v. Kentucky, 476 U.S. 79, 96 (1986) (“Claim II”); (3)
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the erroneous jury instruction on attempted manslaughter, which included discussion of implied
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malice when the crime of attempt requires proving a specific intent to kill, allowed the jury to
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find Petitioner guilty without the prosecution proving each element of the offense beyond a
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reasonable doubt (“Claim III”); (4) the trial court erred in imposing the upper term sentence
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without relying on additional facts proven to the jury (“Claim IV”); and, (5) the trial court erred
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when it ruled on Petitioner’s presentence time credits outside of Petitioner’s presence and off the
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record (“Claim V”). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL BACKGROUND1
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Starkisha Green was shot and wounded in the parking lot of the
Motel 7 in Vallejo at about 7 p.m. on July 5, 2002. She told a
Vallejo police officer, who responded to reports of the shooting,
that the man who shot her was an African American named “G”.
Both Green and Melissa Lujan [also referred to as Lisa], who had
driven Green to the motel, later identified the shooter as appellant
from photo lineups.
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When Lujan’s car entered the parking lot of the Motel 7, they
encountered a car exiting the parking lot driven by one Nicole
Fonseca, with whom Green had a prior altercation. Appellant was a
passenger in Fonseca’s car.
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As the cars pulled alongside each other, Green and Fonseca started
arguing, and soon an argument developed between Green and
appellant, with Green accusing appellant of stealing some jewelry.
As Lujan tried to drive away, Fonseca’s car blocked Lujan’s car
from leaving. Appellant and another African-American male then
jumped into the back seat of Lujan’s vehicle, whereupon Green
tried to get out of the car. While Green was attempting to get out of
the vehicle, two shots were fired. Appellant continued to shoot at
her as she ran away from the cars.
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Green was helicoptered to John Muir Hospital in Walnut Creek,
where doctors found two bullets in her, one in her stomach and one
in her arm. A .22 caliber bullet was removed from Green’s
stomach.
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The following day, July 6, 2002, another Vallejo police officer
stopped appellant for driving without a license plate. A female was
in the car with him. Appellant lacked identification. He said his
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The factual background is taken from the California Court of Appeal, First
Appellate District decision on direct appeal from October 2008 and filed in this Court by
Respondent on February 8, 2011 as Lodged Doc. I (hereinafter referred to as the “Slip Op.”).
Footnotes have been omitted.
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name was John Lashawn Harris, but did not know his own age.
The officer arrested him and, thereafter, found a loaded .22 caliber
revolver under the right-front passenger seat. The gun held nine
bullets, but had four bullets and four empty casings inside. In the
passenger’s purse was another single round.
On September 19, 2002, the Solano County District Attorney filed
an information charging appellant with two counts, the first for
attempted murder and the second for assault with a deadly weapon.
Both counts included allegations of personal use of a firearm and
personal infliction of great bodily injury, as well as an allegation of
two prior felony convictions after which appellant had not
remained free from prison custody for five years. (Pen.Code, §§
187, subd. (a), 245, subd. (a)(2), 664, 667.5, subd. (b) & (c)(8),
1192.7, subd. (c)(8) & (23), 1203.095, 12022.5, subd. (a)(1),
12022.53, subd. (b), (c) & (d), 12022.7, subd. (a).)
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Appellant pled not guilty and denied the various allegations on
September 30, 2002.
The case was tried to a jury over three days starting on May 7,
2003. Lujan, who had driven Green to the motel, testified for the
prosecution. Green herself could not be located, according to the
prosecution; accordingly, her preliminary hearing testimony was
read to the jury.
The prosecution also called the motel’s manager, three Vallejo
police officers involved in the events of July 5 and 6, 2002, and a
deputy sheriff/criminalist who testified regarding the similarity
between the bullet recovered from Green’s stomach and the .22
revolver found in the car appellant was driving. On the last trial
day, the prosecution called the court’s own bailiff and a Solano
County correctional officer who, in combination, testified that,
during the trial, appellant had passed a note to another
African-American detainee, one Andre Bryant, asking him to “be
my alibi witness” for July 5, 2002. This note was read to the jury.
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Appellant’s trial counsel presented three witnesses, a motel
employee named Summerville and two John Muir Medical Center
doctors. Summerville testified that, after Green had been shot, she
did not identify the shooter by name or other identification. One of
the doctors testified that Green told her she used both heroin and
methamphetamine, and the other that she had admitted smoking
heroin earlier on July 5, 2002.
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The prosecution recalled one of the Vallejo police officers who had
previously testified as a rebuttal witness. He testified that, when he
interviewed Summerville immediately after the shooting, he
recalled Green identifying the shooter as “G.”
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After a day and a half of deliberation, the jury returned verdicts
finding appellant not guilty of attempted murder as charged in
count I, but guilty of attempted voluntary manslaughter and also
guilty of assault with a deadly weapon as charged in count II.
Additionally, it found true each of the charged enhancements,
except that relating to the two charged prior felony convictions (for
which appellant was imprisoned at the same time). Appellant
admitted those.
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The trial court denied appellant’s motion for a new trial on July 2,
2003; on July 11, 2003, it sentenced him to a total prison term of
19 years and six months. This consisted of the upper term of five
years, six months, for attempted voluntary manslaughter, an upper
term of ten years for personal use of a firearm, three years for the
infliction of great bodily injury, and one year for the prior prison
term enhancement. All of these sentences pertained to count I of
the information; the court stayed any sentence under count II
pursuant to [Penal Code] section 654.
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II. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
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An application for writ of habeas corpus by a person in custody under judgment of a state
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court can only be granted for violations of the Constitution or laws of the United States. See 28
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U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v.
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Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)).
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Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism
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and Effective Death Penalty Act of 1996 (“AEDPA”) applies. See Lindh v. Murphy, 521 U.S.
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320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim
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decided on the merits in the state court proceedings unless the state court’s adjudication of the
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claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of,
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clearly established federal law, as determined by the Supreme Court of the United States; or (2)
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resulted in a decision that was based on an unreasonable determination of the facts in light of the
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evidence presented in state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-
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93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000). Under section 2254(d)(1), a state
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court’s determination that a claim lacks merit precludes federal habeas relief so long as
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“fairminded jurists could disagree” on the correctness of the state court’s decision. Yarborough
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v. Alvarado, 541 U.S. 652, 664 (2004). “[A] habeas court must determine what arguments or
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theories supported or . . . could have supported, the state court’s decision; and then it must ask
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whether it is possible fairminded jurists could disagree that those arguments or theories are
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inconsistent with the holding in a prior decision of” the Supreme Court. Harrington v. Richter,
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562 U.S. __, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).
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In applying AEDPA’s standards, the federal court must “identify the state court decision
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that is appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005).
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“The relevant state court determination for purposes of AEDPA review is the last reasoned state
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court decision.” Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted).
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“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained
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orders upholding that judgment or rejecting same claim rest upon the same ground.” Ylst v.
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Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts
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must conduct an independent review of the record to determine whether the state court clearly
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erred in its application of controlling federal law, and whether the state court’s decision was
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objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). “The
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question under AEDPA is not whether a federal court believes the state court’s determination
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was incorrect but whether that determination was unreasonable—a substantially higher
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threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
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“When it is clear, however, that the state court has not decided an issue, we review that question
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de novo.” Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard,
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545 U.S. 374, 377 (2005).
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III. ANALYSIS OF PETITIONER’S CLAIMS
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1. Claim I
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In Claim I, Petitioner argues that the prosecution’s use of the victim’s preliminary hearing
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testimony at trial violated his constitutional right to confront the witnesses against him
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guaranteed by the Sixth Amendment. Petitioner does not argue that the use of preliminary
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hearing testimony violates the Confrontation Clause per se. Rather, Petitioner contends that
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under the facts of his case, the testimony was inadmissable because Petitioner was not given an
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adequate opportunity to cross-examine the victim during the preliminary hearing. This argument
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stems from three rulings the trial court made during the victim’s testimony at the preliminary
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hearing, upholding the prosecutor’s objections and limiting the scope of the cross-examination.
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Petitioner does not challenge the determination that the witness, whose whereabouts were
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unknown, was unavailable to testify at his trial.
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In ruling on Petitioner’s Confrontation Clause claim, the California Court of Appeal
found as follows:
Before trial, the prosecution moved for permission to read Green’s
testimony at the preliminary hearing to the jury. This motion
(which was opposed by appellant) was accompanied by many
pages of exhibits from the files of the district attorney’s
investigator showing extensive but unsuccessful efforts to
subpoena Green in both Vallejo and Sacramento. That investigator
testified at a pretrial hearing as to these efforts. The trial court
found there was due diligence in attempting to serve Green, a
finding which appellant does not challenge here. Rather, appellant
argues he did not have an adequate opportunity to cross-examine
Green at the preliminary hearing.
That hearing took place on September 9, 2002; appellant was
represented by the same counsel that defended him at trial. Green
testified for the prosecution as to the events of July 5, 2002, at the
Vallejo Motel 7. That direct examination is recorded in
approximately 10 pages of the transcript of that hearing.
Appellant’s counsel’s cross-examination of Green covers 12 pages
of the same transcript. He got her to admit that she was in
possession of heroin on the day in question and that she knew
appellant only as “G.”
During the course of this cross-examination, the prosecutor made
seven objections to questions posed to Green by appellant’s
counsel; four of them were sustained and the other three overruled.
One of the objections sustained was that the question posed was
compound-which it clearly was. The other three were sustained on
the basis that they sought discovery of issues not directly relevant
to the crimes charged and, in one instance, also asked for hearsay.
On appeal, appellant claims his counsel was denied an opportunity
to adequately cross-examine Green at the preliminary hearing.
More specifically, he contends that the magistrate’s “rulings
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restricting cross-examination at the preliminary hearing denied
appellant an adequate opportunity to cross-examine this shaky
witness.”
The governing statute on this issue provides: “(a) Evidence of
former testimony is not made inadmissible by the hearsay rule if
the declarant is unavailable as a witness and . . . [¶] (2) The party
against whom the former testimony is offered was a party to the
action or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an
interest and motive similar to that which he has at the hearing.”
(Evid.Code, § 1291, subd. (a)(2).)
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Our Supreme Court’s most recent interpretation of this statute was
in People v. Zapien (1993) 4 Cal.4th 929, 974-976. There, a
convicted defendant contended he had been denied his right to
confront an important witness because, based on her assertion of
her privilege against self-incrimination, she had been declared
unavailable and her preliminary hearing testimony read to the jury.
The defendant argued on appeal that his motive for
cross-examining that witness at the preliminary hearing “differed
materially and substantially” from his motive for doing so at trial,
and thus admission of her preliminary hearing testimony was error.
The court, in an opinion authored by then Associate Justice
George, disagreed, holding: “Frequently, a defendant’s motive for
cross-examining a witness during a preliminary hearing will differ
from his or her motive for cross-examining that witness at trial. For
the preliminary hearing testimony of an unavailable witness to be
admissible at trial under Evidence Code section 1291, these
motives need not be identical, only ‘similar.’ [Citation.] Admission
of the former testimony of an unavailable witness is permitted
under Evidence Code section 1291 and does not offend the
confrontation clauses of the federal or state Constitutions-not
because the opportunity to cross-examine the witness at the
preliminary hearing is considered an exact substitute for the right
of cross-examination at trial [citation], but because the interests of
justice are deemed served by a balancing of the defendant’s right to
effective cross-examination against the public’s interest in
effective prosecution. [Citations.] [¶] Defendant’s interest and
motive for cross-examining Inez Blanco during the preliminary
hearing were sufficiently similar to those existing at trial so as to
permit the admission of Blanco’s preliminary hearing testimony.
On both occasions, Blanco’s testimony relating her contacts with
defendant the day preceding the murder, defendant’s need for
money, and the disappearance of Blanco’s automobile near the
time of the murder, had the same tendency to establish defendant’s
guilt. Defendant’s interest and motive in discrediting this testimony
was identical at both proceedings. Defense counsel’s testimony that
he chose, for strategic considerations, not to vigorously
cross-examine Blanco does not render her former testimony
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inadmissible. As long as defendant was given the opportunity for
effective cross-examination, the statutory requirements were
satisfied; the admissibility of this evidence did not depend on
whether defendant availed himself fully of that opportunity.
[Citations.]” (People v. Zapien, supra, 4 Cal.4th at p. 975; see also,
People v. Smith (2003) 30 Cal.4th 581, 611-612; People v.
Samayoa (1997) 15 Cal.4th 795, 849-852; People v. Jones (1998)
66 Cal.App.4th 760, 766-769; People v. Lepe (1997) 57
Cal.App.4th 977, 982-985 (Lepe), disapproved on other grounds in
People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
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As noted above, three substantive objections by the prosecution to
defense counsel’s preliminary hearing cross-examination of Green
were sustained. They were to these questions: (1) “Do you know if
Nicole [Fonseca] had any of her stuff located in room 135?” FN3;
(2) “Do you know Andre Bryant?”; and (3) “Was that relationship
[with Fonseca] based on the drug transactions?”
FN3. Green had testified earlier that she went to the
Motel 7 to visit her aunt, who was in room 135.
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Appellant argues that precluding defense counsel from getting
answers to these questions prevented him from attacking Green’s
credibility as to, e.g., why she was at the motel at all, her denials
that she was there looking for drugs, and her assertion that she did
not know why appellant shot her. We disagree. First of all, the trial
court was clearly correct in ruling that inquiries during the course
of a preliminary hearing which are apparently motivated by a desire
for discovery regarding tangential issues are inappropriate. This
does not, however, preclude the use of preliminary hearing
testimony at trial provided all of the other requirements of
Evidence Code section 1291, subdivision (a)(2) are met. (See, e.g.,
Lepe, supra, 57 Cal.App.4th at pp. 982-985.)
Two of the questions to which objections were sustained (nos.(1)
and (3) above) related to whether Green’s relationship with
Fonseca was connected with drugs.FN4 Appellant contends he
should have been permitted to pursue this point to undermine
Green’s credibility. We are unpersuaded. The jury in this case was
well-acquainted with the fact that Green was a regular drug user.
She admitted during cross-examination in the preliminary hearing
that, contrary to her answer to a question from the prosecutor a few
minutes earlier, she was indeed in possession of some “tar heroin”
on the day in question. In the actual trial, Lujan, the driver of the
car in which Green was riding, admitted on her direct examination
that Green had told Lujan she was “looking for . . . drugs” on the
day in question. On cross-examination, Lujan admitted seeing
Green use both heroin and “meth” that day. Additionally, two John
Muir Medical Center doctors were, as noted above, called as
defense witnesses. One testified that, after her admission there,
Green admitted using both heroin and methamphetamine; the other
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testified that Green admitted using heroin.
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FN4. The third question to which an objection was
sustained (“Do you know Andre Bryant?”) was
clearly lacking in relevance, absent some offer of
proof by defense counsel-or even a slight verbal hint
to the court-as to who Bryant was, his possible
connection with the events of July 5, or some other
reason as to why Green’s knowledge of him was at
all relevant to the issue of who shot her.
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Further, defense counsel’s closing argument to the jury
concentrated heavily on Green’s credibility. He cited
inconsistencies in her preliminary hearing testimony, her absence
from the trial, and the possible impact on her powers of
observation and recollection of her apparent regular drug use.
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As a result of all this, the jury could not have been under any
illusions concerning Green’s involvement with drugs or even the
possibility that her desire to visit Motel 7 and/or her altercation
with Nicole Fonseca may have had something to do with that
subject. Thus, the fact that defense counsel was not permitted to
pursue these topics at the preliminary hearing was not prejudicial.
And, in any event, the issue before the jury was not Green’s drug
use or why she was at Motel 7 on July 5 but, rather, whether
appellant shot and wounded her then and there. Defense counsel
was not foreclosed from cross-examining Green on any aspect of
that issue at the preliminary hearing.
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Slip Op. at 5-9.
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Petitioner’s claim must fail because the California Court of Appeal’s decision is a
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reasonable interpretation of federal law as determined by the Supreme Court of the United States.
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The Supreme Court has had several opportunities to address the use of prior testimony by an
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unavailable witness. In each of the Supreme Court’s cases addressing this issue, the Court has
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held that the previous testimony of an unavailable declarant is admissible so long as the
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defendant previously had a complete and adequate opportunity to cross-examine the witness. See
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Crawford v. Washington, 541 U.S. 36, 54, 57 (2004) (“[T]he common law in 1791 conditioned
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admissibility of an absent witness’s examination on unavailability and a prior opportunity to
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cross-examine. The Sixth Amendment therefore incorporates those limitations.”); Mancusi v.
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Stubbs, 408 U.S. 204, 213-16 (1972); California v. Green, 399 U.S. 149, 165-68 (1970); Pointer
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v. Texas, 380 U.S. 400, 406-08 (1965); Mattox v. United States, 156 U.S. 237, 243 (1895); cf.
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Kirby v. United States, 174 U.S. 47, 55-61 (1899). While it is true that several cases call into
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question the difference between the opportunity to cross-examine a witness at a preliminary
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hearing as compared to an actual trial, Barber v. Page, 390 U.S. 719, 725-26 (1968) (noting that
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a preliminary hearing is ordinarily a less searching exploration into the merits of a case than a
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trial but recognizing that “there may be some justification for holding that the opportunity for
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cross-examination of a witness as a preliminary hearing satisfies the demand of the confrontation
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clause”); Green, 399 U.S. at 195-200 (Brennan, J., dissenting) (“[T]he purpose of the
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Confrontation Clause cannot be satisfied by a face-to-face encounter at the preliminary hearing.
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Cross-examination at the hearing pales beside that which takes place at trial.”), the Court has
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never held a statement inadmissable when the defendant had the opportunity to cross-examine
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the witness at a preliminary hearing and the witness was unavailable at trial. In Ohio v. Roberts,
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448 U.S. 56 (1980), overruled on other grounds by Crawford, supra, the Supreme Court held
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that the preliminary hearing testimony of an unavailable witness was admissible because the
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defendant’s counsel “was not ‘significantly limited in any way in the scope or nature of his cross-
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examination.’” Id. at 71 (quoting Green, 399 U.S. at 166).
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In the present case, there is no question that Petitioner’s counsel was afforded the
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opportunity to cross-examine the victim at the preliminary hearing. See Lodged Doc. C
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(Transcript of Preliminary Hearing) [hereinafter “Prelim. Hr’g Tr.”]. Like in Green and Roberts,
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the victim’s statement at the preliminary hearing was given under circumstances closely
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approximating those that surround the typical trial. Green, 399 U.S. at 165; Roberts, 448 U.S. at
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69. The victim was under oath, Petitioner was represented by counsel (the same counsel that
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later represented Petitioner at trial), and the proceedings were conducted before a judicial
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tribunal, equipped to provide a judicial record of the hearing. Id. Petitioner nonetheless argues
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that the pretrial testimony is inadmissable because the cross-examination was significantly
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limited. It is true that the trial court limited the scope of cross-examination, applying California
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law limiting the scope of the preliminary hearing.2 However, the Supreme Court has given little
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definition as to what significantly limited cross-examination amounts to. The Court has not laid
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out definable boundaries to help lower courts determine when cross-examination has been so
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significantly limited that the testimony could not be used at a later proceeding. This court, under
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AEDPA, can only grant the writ if the state court unreasonably applied Supreme Court precedent.
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“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as
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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington
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v. Richter, 562 U.S. __, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v.
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Alvarado, 541 U. S. 652, 664 (2004)). Reasonable jurists could conclude that Petitioner’s
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counsel was provided with ample opportunity to cross-examine the victim at the preliminary
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hearing. As such, Petitioner is not entitled to relief on this claim.
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2. Claim II
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In Claim II, Petitioner alleges that his constitutional rights were violated when the
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prosecution used a peremptory challenge to remove an African-American from the jury based on
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race. Respondent asserts, in accordance with the California Court of Appeal, that the claim is
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procedurally barred, arguing that Petitioner never made a proper motion or objection in the trial
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court during voir dire.
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Petitioner’s claim is procedurally barred. Though Petitioner’s counsel was heard on the
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record in regard to his belief that the prosecution had impermissibly used a peremptory challenge
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based on race, counsel never actually asked the court to determine the issue. The California
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Court of Appeal held that the issue was “not properly before us for appellate review”:
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In 1990, the California voters passed Proposition 115, the Crime Victims Justice
Reform Act. Among the act’s provisions was an addition to California Penal Code section 866:
“It is the purpose of a preliminary examination to establish whether there exists probable cause to
believe that the defendant has committed a felony. The examination shall not be used for
purposes of discovery.” Cal. Penal Code § 866(b); see also 1 Witkin Cal. Evid. 4th Introduction
§ 24 (Effect of Proposition 115).
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During voir dire, the prosecutor peremptorily challenged an
African-American juror, Patricia G. She was one of 12 jurors
excused at the behest of the prosecution; 16 were challenged by the
defense.
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After the challenge to Patricia G., defense counsel asked to
approach the bench where an unreported conversation occurred. A
few minutes later, after the jury panel had been excused, the
following reported exchange took place:
“THE COURT: ... Mr. Spieckerman [defense counsel], you had an
issue you would like to put on the record?
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“MR. SPIECKERMAN: Yes, your Honor. Just very briefly. When
Ms. Moore [prosecutor] dismissed Patricia G[.] after having passed
a few times, and Ms. G [.] is an African-American, she has a close
personal friend in the Department of Corrections, answered all of
the questions that are asked on the questionnaire as well as the
questions that Counsel may have posed to her in a fashion that
certainly showed she would be a fair and impartial juror, and then
was disqualified or dismissed by Ms. Moore, I realized, as I
indicated to the Court under Wheeler, I need to show a series of
that sort of conduct. But it is also incumbent upon me to state when
I think there is a problem. Any of the other witnesses or jurors that
may have been African-Americans, I would understand any kind of
a reason she had for those because hearing their answers. But this
particular person I think would have been a very good juror, and I
wanted to just make the record to get it started.
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“THE COURT: And that is all you are asking of the court at this
time?
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“MR. SPIECKERMAN: Yes, your Honor.
18
“THE COURT: You have made your record.”
19
Appellant now contends the trial court committed prejudicial error
by failing to find a prima facie case of error under People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by
Johnson v. California (2005) 545 U.S. 162, and Batson v.
Kentucky (1986) 476 U.S. 79 (Batson) or, alternatively, to make
further inquiry into that issue. We disagree; we agree, rather, with
the People that there was both no proper objection on
Wheeler/Batson grounds FN5 and no trial court error in any event.
A simple reading of the excerpt from the voir dire transcript quoted
above makes clear that there simply was no Wheeler motion made,
much less a proper one. Our Supreme Court has been consistent in
putting the burden on the defendant in the trial court to raise the
issue of discriminatory exclusion of prospective jurors in the
proper way. In Wheeler itself, the court wrote: “If a party believes
his opponent is using his peremptory challenges to strike jurors on
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26
12
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2
3
4
5
6
7
8
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12
the ground of group bias alone, he must raise the point in timely
fashion and make a prima facie case of such discrimination to the
satisfaction of the court. First, as in the case at bar, he should make
as complete a record of the circumstances as is feasible. Second, he
must establish that the persons excluded are members of a
cognizable group within the meaning of the representative
cross-section rule. Third, from all the circumstances of the case he
must show a strong likelihood that such persons are being
challenged because of their group association rather than because
of any specific bias.” (Wheeler, supra, 22 Cal.3d at p. 280, fn.
omitted.)
FN5. Preliminarily, the People take the position that
we should not even consider whether there was any
objection raised on Batson grounds, because
defense counsel did not mention that case. We do
not need to reach this issue, because of our holding
(see the following paragraphs) that no Wheeler
motion was properly made. But, if we found it had
been, we would not agree with the People. We read
our Supreme Court’s latest statements on this
subject as effectively saying that once a Wheeler
motion is made, a Batson motion is also. (See
People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
13
14
15
16
17
18
19
20
21
22
23
What transpired here does not comply with these Wheeler
mandates. Rather, this record is similar to what the same court was
faced with in People v. Gallego (1990) 52 Cal.3d 115 (Gallego),
where it unanimously affirmed murder and kidnapping convictions
of the defendant. One of the issues he raised on appeal was
Wheeler, asserting that “the trial court committed prejudicial error
by failing to make inquiry into his claim that the prosecutor was
using his peremptory challenges to remove Blacks from the jury.”
(Id. at p. 166.) There, the defendant, who was representing himself,
brought a motion claiming that there had been an
under-representation of both African-Americans and ex-convicts
on the jury panels sent to the trial department. (See People v.
Buford (1982) 132 Cal.App.3d 288.) At the conclusion of the
hearing on that motion, he noted “that the prosecution had
disqualified all Blacks who ‘did hit the jury box.’” (Gallego, supra,
52 Cal.3d at p. 166.) On appeal, he claimed that the trial court’s
failure to “ ‘inquire into his comment requires reversal under
Wheeler . . . .’” (Id. at p. 166.) The court disagreed, stating:
“Defendant failed even to raise a Wheeler claim, let alone establish
a prima facie case of misuse of peremptory challenges.” (Ibid.)
FN6
24
25
26
FN6. Similarly, in People v. Montiel (1993) 5
Cal.4th 877, 909, the court held: “A party who
suspects improper use of peremptory challenges
must raise a timely objection and make a prima
13
1
2
facie showing of strong likelihood that the opponent
has excluded one or more jurors on the basis of
group or racial identity.” (See also, People v.
Fuentes (1991) 54 Cal.3d 707, 714.)
3
4
5
6
7
8
9
10
11
12
13
14
15
Even if there was no clear-cut Wheeler motion, appellant argues
that, at the minimum, his counsel’s “for the record” statement “was
more than sufficient to trigger the court’s duty to inquire into the
sufficiency of the prima facie showing.” Again, we disagree. As
the Supreme Court held in People v. Bolin (1998) 18 Cal.4th 297,
316-317 (Bolin), such a proposition “conflicts with the procedure
set forth in Wheeler allocating to the aggrieved party the burden of
raising the point in a timely fashion and making a prima facie case
of impermissible discrimination. [Citation.] Whatever the
obligations of the trial court to control the jury selection process,
the defendant must comply with procedural prerequisites to
preserve any error for appeal. [Citation.] Absent an appropriate
challenge to the prosecutor’s exercise of peremptories, the issue is
not preserved. [Citation.]”
Further, even if we could construe defense counsel’s “for the
record” comment during voir dire as an appropriate Wheeler
motion, there is no possible way that, based on the record before
us, we could review that issue. For example, we know that the
prosecution peremptorily challenged 11 other jurors besides
Patricia G., but we do not know how many of them, if any, were
African-American. Similarly, we do not know the racial mix of the
16 prospective jurors challenged by appellant. Finally, we do not
know how many, if any, African-Americans were ultimately seated
as jurors or anything else about the racial make-up of the jury.
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Simply put, a Wheeler/Batson issue is not properly before us for
appellate review.
Nor is appellant’s “fall-back” argument that defense counsel
rendered ineffective assistance by not making a Wheeler motion
persuasive. As our Supreme Court has ruled several times in
similar situations, “the record affords no basis for concluding that
counsel’s omission was not based on an informed tactical choice.”
(People v. Anderson (2001) 25 Cal.4th 543, 569-570; see also
Bolin, supra, 18 Cal.4th at p. 317.) The “tactical choice” possibility
is especially pertinent here because the juror in question had an
aunt employed by the U.S. Customs Service and a “best friend”
who worked for the California Department of Corrections and
whom she saw “[t]wo or three times a week.”
Finally on this subject, and because the record before us contains
no evidence regarding either the use of other peremptory
challenges or the ultimate make-up of the jury, it is highly unlikely
that any prima facie case of racial discrimination could have been,
much less could now be, established. As a result, no prejudice from
14
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2
3
4
any conceivable ineffective assistance of counsel could be
established. (See, e.g., People v. Farnam (2002) 28 Cal.4th 107,
136-138; People v. Turner (1994) 8 Cal.4th 137, 167-168,
overruled on other grounds in People v. Griffin (2004) 33 Cal.4th
536, 555, fn. 5.)
Slip Op. at 9-12.
5
California’s contemporaneous objection rule is well established, clearly defined, and
6
consistently applied. See, e.g., Bundy v. Sierra Lumber Co., 149 Cal. 772, 87 P. 622 (1906);
7
People v. Morris, 53 Cal. 3d 152, 195-96, 807 P.2d 949 (1991), overruled in part on other
8
grounds by People v. Stansbury, 9 Cal. 4th 824, 830 n. 1, 889 P.2d 588 (1995) (“defendant failed
9
to advance in the trial court the specific ground for exclusion he now urges”); People v.
10
Coleman, 46 Cal. 3d 749, 776-77, 759 P.2d 1260 (1988). In California, it is “the general rule
11
that questions relating to the admissibility of evidence will not be reviewed on appeal in the
12
absence of a specific and timely objection in the trial court on the ground sought to be urged on
13
appeal.” People v. Rodgers, 21 Cal. 3d 541, 547-48, 579 P.2d 1048 (1978) (citing People v.
14
Welch, 8 Cal. 3d 106, 114-15, 501 P.2d 225 (1972); People v. De Santiago, 71 Cal. 2d 18, 22,
15
453 P.2d 353 (1969)) (other citations omitted).
16
Moreover, the California Supreme Court has outlined the procedure that is required to
17
properly make a claim of discriminatory exclusion of prospective jurors. People v. Wheeler, 22
18
Cal. 3d 258, 280, 583 P.2d 748 (1978). Under California law, which mirrors the procedure
19
required by the federal charter, the burden is on the defendant to first make a prima facie showing
20
that a challenge was made on an impermissible basis, such as race. Id.; see People v. Monteil, 5
21
Cal. 4th 877, 909, 855 P.2d 1277(1993) (“A party who suspects improper use of peremptory
22
challenges must raise a timely objection and make a prima facie showing of strong likelihood
23
that the opponent has excluded one or more jurors on the basis of group or racial identity.”); see
24
also Batson v. Kentucky, 476 U.S. 79, 96 (1986); Johnson v. California, 545 U.S. 162, 170-71
25
(2005). To establish a prima facie case, a petitioner must show that (1) the prospective juror is a
26
member of a cognizable racial group, (2) the prosecutor used a peremptory strike to remove the
15
1
juror, and (3) the totality of the circumstances raises an inference that the strike was motivated by
2
race. See Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006) (citing Batson, 476 U.S. at 96).3
3
As the Court of Appeal noted, California law placed the burden on Petitioner in the trial court to
4
raise the issue of discriminatory exclusion and “what happened here does not comply with these
5
. . . mandates.” Slip Op. at 10; Wheeler, 22 Cal. 3d at 280.
6
During jury voir dire, after the prosecution used a peremptory challenge to remove a
7
female African-American juror, Petitioner’s counsel placed on the record his belief that she
8
would have made an excellent juror and that he believed she may have been removed as a result
9
of her race. Lodged Doc. E (Rep.’s Tr. of Voir Dire), at 170. Petitioner’s counsel was only
10
“put[ting] the issue on the record.” Id. (trial judge’s language). After counsel’s statement, the
11
court verified that counsel was not making an objection or motion at that time. Id. As such,
12
Petitioner never actually raised the issue of discrimination for the trial court to rule on. Failure to
13
do so under the procedures set forth in California law and contemporaneously in the trial court
14
precludes this court from reaching the merits of Petitioner’s claim.
15
As with his claim before the California Court of Appeal, here Petitioner attempts to avoid
16
the procedural default by arguing that his counsel did not provide effective assistance when he
17
failed to properly object to the prosecution’s use of a peremptory strike to remove an African-
18
American from the jury, in violation of the Sixth Amendment.
19
20
The Sixth Amendment guarantees effective assistance of counsel. In Strickland v.
Washington, 466 U.S. 668 (1984), the Supreme Court articulated the test for demonstrating
21
3
22
23
24
25
26
If the defendant can make such a prima facie showing, the burden shifts to the State to
show a neutral explanation for the peremptory challenge. Batson, 476 U.S. at 97-98. Where the
State offers a race-neutral explanation for the challenge, the trial court decides whether the
defendant has proved the prosecutor’s motive for the challenge was purposeful racial
discrimination. See Boyd, 467 F.3d at 1139; see also Batson, 476 U.S. at 98. The opponent of
the strike has the ultimate burden of persuasion regarding racial motivation. See Purkett v. Elem,
514 U.S. 765, 768 (1995) (per curiam). Because the California Court of Appeal made a
reasonable determination that Petitioner failed to make a prima facie showing that the
peremptory strikes in question were racially motivated, it is unnecessary to move to the second
and third steps of the Batson analysis.
16
1
ineffective assistance of counsel. First, the petitioner must show that considering all the
2
circumstances, counsel’s performance fell below an objective standard of reasonableness. See id.
3
at 688. Petitioner must identify the acts or omissions that are alleged not to have been the result
4
of reasonable professional judgment. See id. at 690. The federal court must then determine
5
whether in light of all the circumstances, the identified acts or omissions were outside the range
6
of professional competent assistance. See id.
7
Second, a petitioner must affirmatively prove prejudice. See id. at 693. Prejudice is
8
found where “there is a reasonable probability that, but for counsel’s unprofessional errors, the
9
result of the proceeding would have been different.” Id. at 694. A reasonable probability is “a
10
probability sufficient to undermine the confidence in the outcome.” Id. A reviewing court “need
11
not determine whether counsel’s performance was deficient before examining the prejudice
12
suffered by defendant as a result of the alleged deficiencies . . . [i]f it is easier to dispose of an
13
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be
14
followed.” Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at
15
697). When analyzing a claim for ineffective assistance of counsel where a state court has issued
16
a decision on the merits, a habeas court’s ability to grant the writ is limited by two “highly
17
deferential” standards. Premo v. Moore, __ U.S. __, 131 S.Ct. 733, 740, 178 L.Ed.2d 649
18
(2011). “When § 2254(d) applies,” as it does here, “the question is not whether counsel’s actions
19
were reasonable. The question is whether there is any reasonable argument that counsel satisfied
20
Strickland’s deferential standard.” Id.
21
The California Court of Appeal reached a reasonable determination when it concluded
22
that Petitioner could not establish that his counsel’s performance fell below an objective standard
23
of reasonableness. It is reasonable to conclude that Petitioner’s counsel did not follow up with
24
his on-the-record statement regarding discrimination because he did not believe that he could
25
make a prima facie showing that the totality of the circumstances raised an inference that the
26
strike was motivated by race. Batson, 476 U.S. at 96. When placing his statement in the record,
17
1
Petitioner’s counsel said that he “need[ed] to show a series of [discriminatory] conduct,” but that
2
it was incumbent upon him to start when he thought there was a problem. Lodged Doc. E, at
3
170. While it is difficult to determine strictly from reviewing the record, a review of the voir dire
4
transcript indicates that there were no additional strikes used by the prosecution that led
5
Petitioner’s counsel to believe that race was a motivating factor. The available evidence
6
indicates that Petitioner’s counsel, while believing a possible issue existed, did not think that he
7
could establish a prima facie case of discrimination and, therefore, chose not to pursue the claim.
8
Applying the highly deferential standard for which ineffective assistance of counsel claims are
9
reviewed under AEDPA, a reasonable argument can be made that counsel satisfied Strickland’s
10
already deferential standard. Moore, 131 S.Ct. at 740. Petitioner is not entitled to relief on this
11
claim.
12
3. Claim III
13
In Claim III, Petitioner alleges that his trial was rendered fundamentally unfair when the
14
trial court gave an incorrect instruction in regard to attempted voluntary manslaughter. Both
15
parties and the California Court of Appeal agree that the instruction was erroneous. In fashioning
16
a jury instruction for attempted manslaughter, the trial court modified the model manslaughter
17
instruction, CALJIC No. 8.40. The modified language still included implied malice, allowing the
18
jury to find Petitioner guilty of attempted manslaughter if he showed a “conscious disregard for
19
human life.” However, because Petitioner was charged with attempt, which requires a showing
20
of a specific intent to kill, the instruction was erroneous. Respondent maintains that the error
21
does not rise to the level of a constitutional error or, in the alternative, that any error was
22
harmless.
23
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26
The California Court of Appeal ruled as follows:
Although the charge against appellant in count I of the information
was attempted murder, the prosecution provided the court with
proposed instructions on the lesser included offense of attempted
voluntary manslaughter. Defense counsel stated that he “had no
problem with that.” But then, a minute or so later, he noted that
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4
5
6
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8
most of the relevant voluntary manslaughter instructions used the
words “killing of a human being,” and that such was inappropriate
when what was possibly at issue was attempted manslaughter.
After some dialogue back and forth between the court and counsel,
all agreed that the court could and would add to the pertinent
proposed instructions (CALJIC Nos. 8.40, 8.42, 8.43, and 8 .50)
the words “attempts,” “attempts to,” or “attempted.”
The ultimate problem with all of this was that, in the modified
version of CALJIC No. 8.40 given to the jury,FN7 the “conscious
disregard for human life” language was retained. Clearly, neither
the court nor counsel recognized that, whereas this language would
have been pertinent and proper in a pure voluntary manslaughter
instruction, it was not appropriate in one pertaining to attempted
voluntary manslaughter.FN8
9
FN7. The modified version of CALJIC No. 8.40
given to the jury read (italics showing addition):
“Every person who unlawfully attempts to kill
another human being without malice aforethought
but either with an intent to kill, or with conscious
disregard for human life, is guilty of attempted
voluntary manslaughter in violation of Penal Code
section 192, subdivision (a). [¶] There is no malice
aforethought if the attempt to kill occurred upon a
sudden quarrel or heat of passion. [¶] ‘Conscious
disregard for life,’ as used in this instruction, means
that an attempted killing results from the doing of
an intentional act, the natural consequences of
which are dangerous to life, which act was
deliberately performed by a person who knows that
his or her conduct endangers the life of another and
who acts with conscious disregard for life. [¶] In
order to prove this crime, each of the following
elements must be proved: [¶] 1. An attempt was
made to kill a human being; [¶] 2. The attempted
killing was unlawful; and [¶] 3. The perpetrator of
the attempted killing either intended to kill the
alleged victim, or acted in conscious disregard for
life; and [¶] 4. The perpetrator’s conduct resulted in
the attempted unlawful killing.
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12
13
14
15
16
17
18
19
20
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22
FN8. A specific intent to kill is required for a
conviction for attempted voluntary manslaughter; a
“conscious disregard for life” is insufficient. (See,
e.g., People v. Gutierrez (2003) 112 Cal.App.4th
704, 710; People v. Montes (2003) 112 Cal.App.4th
1543, 1546-1552 (Montes ).)
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///
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5
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7
8
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18
The People argue that any error here was both invited and
harmless. We disagree with the former argument but agree with the
latter.
It is clear that defense counsel wanted the words “attempt,”
“attempt to,” or “attempted” added throughout the voluntary
manslaughter instructions originally proposed by the prosecutor.
That, and only that, was the point of his insistence on changes
being made to the original CALJIC instructions. He never
addressed the issue of whether the modified version of CALJIC
No. 8.40 which was going to be read to the jury should or should
not retain the “conscious disregard for human life” words used in
the first and third sentences of the instruction. The only reference
to those words was by the court, which indicated an intent to retain
them but add the word “attempted” to the third sentence. Defense
counsel was never asked if he agreed with that intention, nor did he
either volunteer or imply such agreement. In those circumstances,
we cannot and do not find invited error, because “merely acceding
to an erroneous instruction does not constitute invited error.”
(People v. Smith (1992) 9 Cal.App.4th 196, 207, fn. 20; cf. also
People v. Wickersham (1982) 32 Cal.3d 307, 333-335, overruled
on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201;
People v. Viramontes (2001) 93 Cal.App.4th 1256, 1264.)
The situation is different, however, regarding whether the modified
version of CALJIC No. 8.40 with which the jury was instructed
was prejudicial to appellant. First of all, our standard of review of
errors in instructions concerning lesser-included offenses is
whether it is reasonably probable that the erroneous instruction
affected the outcome. (People v. Watson (1956) 46 Cal.2d 818,
836.) Our Supreme Court so held in People v. Breverman (1998)
19 Cal.4th 142, 164-179 (Breverman), overruling People v. Sedeno
(1974) 10 Cal.3d 703. It reaffirmed that point even more recently
in the highly-pertinent People v. Lasko (2000) 23 Cal.4th 101,
111-113 (Lasko).FN9 (Cf. also People v. Montes, supra, 112
Cal.App.4th at p. 1552).
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20
21
22
23
24
25
26
FN9. Lasko makes clear that, since Breverman, the
state, and not the federal (see Chapman v.
California (1967) 386 U.S. 18) standard applies in
circumstances such as those present here, i.e.,
misinstruction regarding a lesser included offense.
Although appellant’s counsel cites Lasko once in his
opening brief, he does not in his reply brief,
notwithstanding the People’s substantial (and in our
opinion correct) reliance on Lasko regarding the
relevant standard of review in the instant
circumstances. Appellant belatedly argued, in a
petition for rehearing after our first opinion in this
case, that, despite Lasko and Breverman, the federal
Chapman standard of prejudice applied here
20
1
2
3
because, unlike those cases, appellant was convicted
of the lesser-included offense. Even if this argument
is correct, for the reasons we outline in the
remainder of this section, any error was not
prejudicial even under a Chapman standard of
review.
4
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6
7
8
9
10
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12
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14
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16
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21
Under the Watson test, it is simply not “reasonably probable” that
the erroneous retention of the “conscious disregard” language in
the modified version of CALJIC No. 8.40 affected the outcome
here. In the first place, in closing argument the prosecution
discussed the attempted voluntary manslaughter possible alternate
verdict in all of two sentences. More importantly, it did so by
urging its rejection by the jury and, rather, their conviction of
appellant of the charged offense, attempted murder. The defense
never addressed the issue at all, its position being that the
prosecution had never established that appellant was the shooter,
principally because of the unreliability of Green’s and Lujan’s
testimony.
But even more importantly, the evidence that appellant was (1) the
shooter and (2) shot Green with intent to kill was very substantial.
On the first point, and in addition to the testimony of Green and
Lujan, the jury heard from the officer who arrested appellant the
day after the shooting and found in the car he was driving a .22
caliber revolver containing four empty casings. It then heard from a
Vallejo police detective that both Lujan and Green (the latter
twice) had picked out appellant’s picture from photo line-ups. It
also heard from a county criminalist that the .22 caliber bullet
removed from Green’s stomach was ballistically consistent with
the revolver found in appellant’s car. Finally, the jury had read to it
the note that appellant, during the trial, apparently passed to Andre
Bryant asking Bryant to provide an alibi for him. During less than
two days of deliberation, the jury asked only one question of the
court (regarding whether Bryant had been listed as a potential
witness for either side) and for the re-reading of the testimony of
only Green and Lujan.
On the second point, intent to kill, the jury knew that Green had
one .22 caliber bullet removed from her stomach but still had
another in her arm and that, according to her, four shots had been
fired by appellant.FN10
22
23
FN10. Lujan testified that she had definitely heard
two shots but that it was “possible” there were
more.
24
25
26
Under these circumstances, we have no difficulty in concluding
that the erroneous inclusion of the two references to “conscious
disregard for human life” in the modified version of CALJIC No.
8.40 with which the jury was instructed was not prejudicial to
21
1
2
appellant.
Slip Op. at 12-16.
3
In a criminal trial, the State must prove every element of the offense, and a jury
4
instruction violates due process if it fails to give effect to that requirement. See Sandstrom v.
5
Montana, 442 U.S. 510, 520-521 (1979). Nonetheless, not every ambiguity, inconsistency, or
6
deficiency in a jury instruction rises to the level of a due process violation. The question is
7
“‘whether the ailing instruction . . . so infected the entire trial that the resulting conviction
8
violates due process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten,
9
414 U.S. 141, 147 (1973)). “‘[A] single instruction to a jury may not be judged in artificial
10
isolation, but must be viewed in the context of the overall charge.’” Boyde v. California, 494
11
U.S. 370, 378 (1990) (quoting Cupp, 414 U.S. at 146-47). If the charge as a whole is ambiguous,
12
the question is whether there is a “‘reasonable likelihood that the jury has applied the challenged
13
instruction in a way’ that violates the Constitution.” Estelle, 502 U.S. at 72 (quoting Boyde, 494
14
U.S. at 380). Even if an instruction is constitutionally deficient by allowing the jury to convict
15
on a legally improper theory, the error is not structural and is subject to harmless error analysis.
16
Hedgpeth v. Pulido, 555 U.S. 57 (2008) (per curiam). As such, relief can only be granted if the
17
error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht
18
v. Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation marks omitted); see also Fry v.
19
Pliler, 551 U.S. 112, 117-20 (2007) (federal habeas court properly applies Brecht harmless
20
standard regardless of whether or under what standard state court considered harmless error).
21
The Brecht standard requires reversal only if, but for the error, there is “a reasonable probability”
22
that the jury would have reached a different result. Clark v. Brown, 450 F.3d 898, 916 (9th Cir.
23
2006).
24
Assuming, arguendo, that the given instruction with regard to attempted manslaughter
25
violated Petitioner’s constitutional rights, the error was harmless. While the “conscious
26
disregard” language remained in the instruction, neither the prosecution nor Petitioner argued
22
1
such a theory to the jury in closing argument. Moreover, the evidence that Petitioner did have the
2
intent to kill the victim was strong. The victim, Starkisha Green, identified the defendant as the
3
person who shot her. Prelim. Hr’g Tr. at 7.4 Green was the passenger in a vehicle driven by Lisa
4
Lujan. When entering a motel parking lot, Green, who was sitting in the front passenger seat,
5
entered into an argument with the driver of another car, Nicole Fonseca. Green testified that
6
Petitioner, who was a passenger in the vehicle driven by Fonseca, got out of Fonseca’s car and
7
then entered the back seat of Lujan’s car where he sat directly behind Green. Id. at 9. When
8
Green told Lujan not to drive away, Petitioner shot Green in the back. Id. Green attempted to
9
flee to the motel lobby. After she had exited the vehicle and was running towards the motel, she
10
saw Petitioner chasing her, in broad daylight, with a gun in his hand. Id. at 12. Petitioner shot
11
her again, this time in the arm. Id. at 11.
12
Lujan’s trial testimony told a similar story. Rep.’s Tr. at 64. Lujan testified that Green
13
had asked her to take Green to the motel in order to purchase drugs. As they entered the motel
14
parking lot, Lujan pulled alongside Fonseca’s car and an argument began between Green and
15
Fonseca in which Green accused Fonseca of stealing jewelry. Later in the argument, Green
16
accused Petitioner of being involved in the alleged jewelry theft, which Petitioner denied. Id. at
17
65-66. The argument nearly turned into a physical altercation when Lujan intervened and started
18
to drive away. Before Lujan could drive away, Fonseca used her car to block the exit. Id. at 67.
19
That is when Petitioner and another black male exited Fonseca’s vehicle and got in the back seat
20
of Lujan’s, with Petitioner sitting behind Green. Lujan testified that Green attempted to exit the
21
vehicle but before she could Lujan heard two shots from the backseat. Id. at 69. Lujan saw
22
Green get out of the car and start running, then she put her head on her lap and covered her head.
23
When she looked up again, everyone was gone. Id. at 70.
24
///
25
26
4
As discussed above, Green’s testimony from the preliminary hearing was read to
the jury when it was determined that Green was unavailable as a witness at trial.
23
1
The victim’s testimony established that Petitioner shot her with the intent to kill.
2
Petitioner was only sitting, at most, a few feet behind Green when he pulled the trigger, hitting
3
her in her back. The fact that the shots were fired in such close proximity to the victim shows
4
that he had the intent to kill. This is further substantiated by the fact that after the victim escaped
5
from the vehicle, Petitioner chased after her and shot her again. It was only after Green reached a
6
relative place of safety in the motel lobby that Petitioner fled the scene. The substantial evidence
7
that Petitioner intended to kill the victim, along with the fact that no argument was made to the
8
jury with regard to the conscious disregard element of the instruction, leads to the conclusion that
9
the jury would have reached the same verdict had the proper instruction been given. As such,
10
there is no reasonable probability that the jury would have reached a different verdict if the error
11
had not occurred, Clark, 450 F.3d at 916, and the error did not have a substantial and injurious
12
effect or influence in determining the jury’s verdict. Brecht, 507 U.S. at 623. Petitioner is not
13
entitled to relief on this claim.
14
4. Claim IV
15
In Claim IV, Petitioner challenges the imposition of the upper term sentence as being
16
imposed in violation of his right to a jury trial on all issues. Petitioner was sentenced to the
17
upper term on both the attempted manslaughter charge and the sentencing enhancement for
18
personal use of a firearm in the course of the attempted manslaughter.
19
20
21
22
In ruling on this claim, the California Court of Appeal stated as follows:
[A]ppellant contends Blakely [v. Washington (2004) 542 U.S.
295]error was committed when the trial court sentenced appellant
to the upper terms on both count one and the enhancement alleged
pursuant to section 12022.5, subdivision (a), pertaining to personal
use of a firearm during the commission of the attempted voluntary
manslaughter.
23
24
25
26
The controlling principle in this area was announced by the United
States Supreme Court in Apprendi v. New Jersey (2000) 530 U.S.
466, 490 (Apprendi) which states: “Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”
24
1
2
3
4
5
6
7
8
9
10
11
12
13
In Blakely, supra, 542 U.S. 296, the Supreme Court held that a
Washington State court violated the Apprendi rule and denied a
criminal defendant his constitutional right to a jury trial by
increasing that defendant’s sentence for second-degree kidnapping
from the “standard range” of 49 to 53 months to 90 months based
on the trial court’s finding that the defendant acted with
“‘deliberate cruelty.’” (Blakely, supra, 542 U.S. at pp. 303-304.) In
reaching this conclusion, the court clarified that, for Apprendi
purposes, the “statutory maximum” is “not the maximum sentence
a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” (Ibid.)
Blakely raised concerns about the constitutionality of California’s
Determinate Sentencing Law (DSL). Under our DSL, the
maximum sentence a judge may impose for a conviction without
making any additional findings is the middle term. Penal Code
section 1170, subdivision (b), states that “the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime.” Furthermore, rule
4.420(b), states that “[s]election of the upper term is justified only
if, after a consideration of all the relevant facts, the circumstances
in aggravation outweigh the circumstances in mitigation.” If,
pursuant to Blakely, the statutory maximum sentence under
California’s DSL is the middle term, then an upper term sentence
based on aggravating circumstances, other than the fact of a prior
conviction, that are found by the trial court rather than by a jury
would violate the Apprendi rule.
14
15
16
17
18
19
20
21
22
23
24
25
26
The California Supreme Court attempted to resolve the
constitutional issue in Black I, supra, 35 Cal.4th 1238. The Black I
court held that “the judicial fact-finding that occurs when a judge
exercises discretion to impose an upper term sentence or
consecutive terms under California law does not implicate a
defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)
The court reasoned that, under California’s sentencing system, “the
upper term is the ‘statutory maximum’ and a trial court’s
imposition of an upper term sentence does not violate a
defendant’s right to a jury trial under the principles set forth in
Apprendi, Blakely, and [ United States v.] Booker [(2005) 543 U.S
220].” (Black I, supra, 35 Cal.4th at p. 1254.)
However, and as noted earlier, the United States Supreme Court
recently held that California’s DSL does violate the constitutional
principle embodied in the Apprendi rule. (Cunningham, supra.)
Cunningham held that the DSL, “by placing sentence-elevating
fact-finding within the judge’s province, violates a defendant’s
right to trial by jury safeguarded by the Sixth and Fourteenth
Amendments.” (127 S.Ct. at p. 860.) The court reasoned that,
under the DSL, the middle term and not the upper term is the
relevant statutory maximum because (1) an upper term sentence
can be imposed only if the judge finds aggravating circumstances,
and (2) aggravating circumstances “depend on facts found
25
1
2
3
4
discretely and solely by the judge.” Furthermore, the court found,
“[b]ecause circumstances in aggravation are found by the judge,
not the jury, and need only be established by a preponderance of
the evidence not beyond a reasonable doubt, . . . the DSL violates
Apprendi’s bright-line rule: Except for a prior conviction, ‘any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.’‘ [Citation.]” (Id. at p. 868.) FN12
5
6
7
8
9
10
11
12
13
14
15
16
FN12. The Cunningham court expressly disagreed
with the California Supreme Court's decision in
Black I, supra, 35 Cal.4th 1238, stating that
“[c]ontrary to the Black court’s holding, our
decisions from Apprendi to Booker point to the
middle term specified in California’s statutes, not
the upper term, as the relevant statutory maximum.
Because the DSL authorizes the judge, not the jury,
to find the facts permitting an upper term sentence,
the system cannot withstand measurement against
our Sixth Amendment precedent.” (127 S.Ct. at p.
871.)
Our Supreme Court then issued its decision in Black II, supra, 41
Cal.4th 799. In Black II, the court concluded that “if one
aggravating circumstance has been established in accordance with
the constitutional requirements set forth in Blakely, the defendant
is not ‘legally entitled’ to the middle term sentence, and the upper
term sentence is the ‘statutory maximum.” (Id. at p. 813.) The
court went on to hold that, pursuant to Apprendi, the fact of a prior
conviction is an aggravating circumstance that may be found by the
court, rather than a jury, and used to impose the upper term without
offending defendant’s federal constitutional rights. (Id. at p. 818.)
17
18
19
20
21
22
23
24
25
26
In this case, the trial judge here was careful and precise in the way
he identified and articulated the various aggravating factors under
(former) rule 4.421 of the California Rules of Court. It is clear
from the record of the sentencing hearing that appellant’s admitted
two prior felony convictions (which resulted in one prison term)
were not considered by the trial court as an aggravating factor.
Indeed, the trial court expressly disclaimed any such reliance
during the sentencing hearing. Rather, citing subdivisions (a)(1),
(2), (3) & (4) and (b)(1) & (2) of former rule 4.421, the court
articulated as aggravating factors which caused it to impose the
upper term for both the attempted voluntary manslaughter
conviction and the personal use of a firearm enhancement the fact
that appellant’s crime involved “great violence,” “a threat of great
bodily harm,” were “perpetrated by Mr. Powell [with] a high
degree of cruelty, viciousness, as well as callousness,” as well as
the fact that appellant “did use a weapon at the time” directed at a
victim who “was particularly vulnerable.” The court also relied on
the additional facts that appellant was on parole at the time of the
26
1
offenses and had attempted to suborn perjury during the course of
the trial.
2
3
4
5
In Black II, the Court held that “defendant’s criminal history,”
“satisf [ies] Sixth Amendment requirements and render[s] him
eligible for the upper term. Therefore, he was not legally entitled to
the middle term, and his Sixth Amendment right to jury trial was
not violated by imposition of the upper term sentence for the
offense of continuous sexual abuse of a child.” (Black II, supra, 41
Cal.4th at p. 820.)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Here the trial court identified a single recidivist factor in imposing
the aggravated term, namely that defendant was on parole at the
time he committed the present offenses. Pursuant to Black II,
supra, 41 Cal.4th at page 818, because the trial court relied on at
least one recidivist factor in imposing the upper term, defendant’s
federal constitutional right to a jury trial under the Sixth
Amendment and his right to due process under the Fourteenth
Amendment as explicated in Blakely, supra, 542 U.S. 296 and
Cunningham, supra, 549 U.S.270 [127 S.Ct. 856] were not
violated.
Although the sentence in this case was pronounced over a year
before Blakely was handed down, the ruling in that case clearly
applies here because this case was on appeal during that period and
hence its result was not final. (See, e.g., Griffith v. Kentucky (1987)
479 U.S. 314, 328; People v. Ashmus (1991) 54 Cal.3d 932, 991.)
Thus we categorically reject the People’s contention-restated,
fortunately briefly in their post-Blakely brief-that appellant
“forfeited” his right to claim Blakely error by not raising that issue
below. Because of the constitutional implications of the error at
issue, we question whether the forfeiture doctrine applies at all.
(See People v. Vera (1997) 15 Cal.4th 269, 276-277 [claims
asserting deprivation of certain fundamental, constitutional rights
not forfeited by failure to object].) Furthermore, there is a general
exception to this rule where an objection would have been futile.
(People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648, and
authority discussed therein.) We have no doubt that, at the time of
the sentencing hearing in this case, an objection that the jury rather
than the trial court must find aggravating facts would have been
futile. (See Pen.Code, § 1170, subd. (b) & former Cal. Rules of
Court, rules 4.409 & 4.420-4.421.) In any event, we have
discretion to consider issues that have not been formally preserved
for review. (See 6 Witkin & Epstein, Cal.Criminal Law (3d
ed.2000), Reversible Error, § 36, p. 497.) Since the purpose of the
forfeiture doctrine is to “encourage a defendant to bring any errors
to the trial court’s attention so the court may correct or avoid the
errors” (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060),
we would find it particularly inappropriate to invoke that doctrine
here in light of the fact that Blakely was decided after appellant
was sentenced.
27
1
2
Slip Op. at 17-21.
The Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows
3
a judge to impose a sentence above the statutory maximum based on a fact, other than a prior
4
conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S.
5
466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004);
6
United States v. Booker, 543 U.S. 220 (2005). In Cunningham v. California, 549 U.S. 270
7
(2007), the Supreme Court had the opportunity to apply its previous rulings to California’s
8
determinate sentencing law. Under California’s determinate sentencing law, the statute defining
9
most offenses, including Petitioner’s, “prescribes three precise terms of imprisonment—a lower,
10
middle, and upper term sentence.” Cunningham, 549 U.S. at 277; see People v. Black, 35 Cal.
11
4th 1238, 1247, 29 Cal. Rptr. 3d 740, 113 P.3d 534 (2005) (“Black I”), overruled by
12
Cunningham (outlining California’s determinate sentencing law). California Penal Code section
13
1170, subsection (b) governs the trial court’s choice; it provides that “the court shall order
14
imposition of the middle term, unless there are circumstances in aggravation or mitigation of the
15
crime.” Therefore, the maximum sentence which a defendant may receive based solely on the
16
facts reflected in the jury verdict is the middle term—the statutory maximum for purposes of the
17
Sixth Amendment. Cunningham, 549 U.S. at 289; Blakely, 542 U.S. at 303 (“[T]he ‘statutory
18
maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the
19
basis of the facts reflected in the jury verdict or admitted by the defendant.” (emphasis in
20
original)).
21
In California, in order for a trial court to sentence a defendant to the upper term, the court
22
need only find one aggravating factor. See People v. Black, 41 Cal. 4th 799, 805, 62 Cal. Rptr.
23
3d 569, 161 P.3d 1130 (2007) (“Black II”); Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008)
24
(accepting the California Supreme Court’s decision in Black II as a valid interpretation of
25
California law). Thus, “if at least one of the aggravating factors on which the judge relied upon
26
in sentencing a defendant was established in a manner consistent with the Sixth Amendment, the
28
1
defendant’s sentence does not violate the Constitution.” Butler, 528 F.3d at 643. Once
2
imposition of the upper term is available because of either a prior conviction or an aggravating
3
factor proved beyond a reasonable doubt to a jury, any additional aggravating factors determined
4
by the judge are within his discretion in determining which sentence to impose. Id.
5
In sentencing Petitioner to the upper term, the trial court relied on, amongst other factors,
6
the fact that Petitioner was on parole at the time he committed the offense. Lodged Doc. H
7
(Rep.’s Tr. of Sentencing), at 5 (“The fact that defendant was on parole at the time he committed
8
this offense weighs in my mind for justifying this high term.”). Whether the fact that a defendant
9
is on probation at the time he commits another offense may be used to sentence the defendant to
10
the upper term without submitting the question to the jury is an open question.
11
In Cunningham and its predecessors, the Supreme Court has expressly excepted the fact
12
of a prior conviction from being tried to the jury in imposing the upper term. Cunningham, 549
13
U.S. at 281; Apprendi, 530 U.S. at 476; Jones v. United States, 526 U.S. 227, 243 n. 6 (1999);
14
see also Blakely, 542 U.S. at 303. Lower federal courts, as well as state courts, have offered a
15
variety of interpretations of the prior conviction exception. For instance, the California Supreme
16
Court has opined that the exception is not to be read “too narrowly.” Black II, 41 Cal. 4th at 819.
17
Other state courts have reached similar conclusions. See,e.g., State v. Jones, 159 Wash.2d 231,
18
149 P.3d 636, 640-41 (2006) (“In our judgment, the prior conviction exception encompasses a
19
determination of the defendant's probation status because probation is a direct derivative of the
20
defendant’s prior criminal conviction or convictions and the determination involves nothing
21
more than a review of the defendant’s status as a repeat offender.”); State v. Fagan, 280 Conn.
22
69, 905 A.2d 1101, 1121 (2006) (“[W]e conclude that the defendant’s status as to whether he
23
lawfully had been on release at the time of the offense for which he was convicted . . . was a
24
question that also did not require a jury determination.”); Ryle v. State, 842 N.E.2d 320, 323-25
25
(Ind. 2005) (holding that whether the defendant “was on probation when he committed the
26
present offense, a fact reflected in the presentence investigation report,” was not a fact that
29
1
“needs to be proven before a jury”); State v. Allen, 706 N.W.2d 40, 48 (Minn. 2005) (“We
2
believe that the fact a defendant is on probation at the time of the current offense arises from, and
3
is so essentially analogous to, the fact of a prior conviction, that constitutional considerations do
4
not require it to be determined by a jury.”). At least three federal circuit courts have suggested
5
that whether a defendant was on probation at the time of the crime is a fact that comes within the
6
prior conviction exception. See, e.g., United States v. Corchado, 427 F.3d 815, 820 (10th Cir.
7
2005) (“[T]he ‘prior conviction’ exception extends to ‘subsidiary findings’ such as whether a
8
defendant was under court supervision when he or she committed a subsequent crime.”); United
9
States v. Williams, 410 F.3d 397, 399, 402 (7th Cir. 2005); United States v. Fagans, 406 F.3d
10
138, 141-42 (2d Cir. 2005); see also Butler v. Curry, 528 F.3d 624, 647 (9th Cir. 2008). The
11
Ninth Circuit, on the other hand, has interpreted the exception narrowly. See Butler, 528 F.3d at
12
644 (“[W]e have been hesitant to broaden the scope of the prior conviction exception. . . .”);
13
United States v. Kortgaard, 425 F.3d 602, 610 (9th Cir. 2005) (declining to “extend or broadly
14
construe” the prior conviction exception); United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir.
15
2001) (holding that the prior conviction exception “should remain a ‘narrow exception’ to
16
Apprendi ” (citing Apprendi, 530 U.S. at 490)).
17
Under AEDPA, the writ of habeas corpus can only be granted if the state court
18
unreasonably applied federal law. 28 U.S.C. § 2254(d)(1). Given the varying interpretations of
19
the prior conviction exception, the state court made a reasonable determination when it
20
concluded Petitioner’s parole status made him eligible for the upper term. Kessee v.
21
Mendoza-Powers, 574 F.3d 675, 678 (2009) (“[A]lthough a defendant’s probationary status does
22
not fall within the “prior conviction” exception, a state court’s interpretation to the contrary does
23
not contravene AEDPA standards.”) Petitioner is not entitled to relief on this claim.
24
///
25
///
26
///
30
1
5. Claim V
2
In Claim V, Petitioner claims that his right to be present for all portions of the
3
proceedings against him was violated when the court determined that he was not entitled to credit
4
for the time served while awaiting and undergoing trial. The California Court of Appeal ruled on
5
Petitioner’s claim as follows:
6
7
Appellant claims he was deprived of his constitutional rights
because, at a point of time when he was not present in court, the
trial court denied him presentence credits to which, he asserts, he
was entitled.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
The sentencing hearing in this matter was held, as noted earlier, on
July 11, 2003. Three days before that date, appellant’s trial counsel
filed a “Defendant’s Sentencing Brief” which devoted itself
principally to arguing against the imposition of the upper term. The
document did, however, briefly discuss the issue of custody credits
to which appellant might be entitled, stating: “[O]n the issue of
credits Mr. POWELL was taken into custody because of a weapon
found in an automobile which he was driving. His parole status
alone did not result in his arrest. Thus, the Court should give Mr.
POWELL the credits to which he was entitled.”
This reference in the brief was, clearly, in response to a
“Pre-Sentence Report” prepared by a deputy probation officer
which, although marked filed as of July 11, 2003, was in the hands
of defense counsel before then.FN11 That report recommended
that appellant receive no custody credits because he was “not
eligible for these credits in that he was in-custody on a parole hold
for absconding and not related to the instant offense.” Some of
those last-quoted words appear as underlined, apparently by the
court, in our copy of the record.
FN11. We know this because that document is
specifically referenced in “Defendant’s Sentencing
Brief.”
At the sentencing hearing, appellant and his counsel were both
present. The court noted that it had read and considered both
parties’ briefs plus the probation report on the issue of sentencing,
and asked defense counsel if he had anything he wished to add. He
did not. The prison sentence, noted above, was then pronounced,
but in so doing the court said nothing one way or the other
regarding custody credits. Nor was the subject brought up by either
counsel thereafter. Both the court’s minute order, issued the same
day, and its abstract of judgment, filed the same day, specifically
stated that appellant would not receive custody credits.
26
31
1
2
3
4
5
6
Because the issue was not specifically dealt with orally by the court
during the July 11, 2003, hearing, appellant contends the denial of
custody credits was done “outside appellant’s presence, denying
appellant due process of law and his right to the assistance of
counsel.” However, it is abundantly clear that the issue of
presentence credits was understood by the parties and the court
and, although not verbally dealt with by the court at the July 11,
2003, hearing, it was (1) expressly briefed by both sides before the
sentencing hearing, (2) not raised by defense counsel at that
hearing, and (3) expressly determined by the court in its minute
order of the same day. We therefore reject the argument that this
issue was considered “outside” of appellant’s presence.
7
8
Slip Op. at 16-17.
9
The Sixth Amendment’s Confrontation Clause, applied to the states through the
10
Fourteenth Amendment, guarantees a defendant the right to be present in the courtroom at every
11
stage of his trial. Illinois v. Allen, 397 U.S. 337, 338 (1970) (citing Lewis v. United States, 146
12
U.S. 370 (1892)). In the present case, the Court of Appeal was reasonable when it concluded that
13
Petitioner’s right to be present was not violated. Petitioner was given a fair and adequate
14
opportunity to raise the issue of his pre-trial sentencing credits by both filing a sentencing brief
15
and being present during the sentencing hearing. Petitioner’s counsel was given the opportunity
16
to make any remarks he wished at the hearing, but chose not to address the issue of whether
17
Petitioner was entitled to credit for the time he served in jail prior to the jury’s verdict. At no
18
time was any evidence adduced outside the presence of Petitioner, nor was Petitioner removed
19
from the courtroom during any argument as to his sentence. As such, Petitioner is not entitled to
20
relief on this claim.
21
22
IV. CONCLUSION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the petition for
23 writ of habeas corpus be DENIED.
24
These findings and recommendations are submitted to the United States District Judge
25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
26 after being served with these findings and recommendations, any party may file written objections
32
1 with the court and serve a copy on all parties. Such a document should be captioned “Objections
2 to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be
3 served and filed within seven days after service of the objections. The parties are advised that
4 failure to file objections within the specified time may waive the right to appeal the District
5 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he elects to file,
6 Petitioner may address whether a certificate of appealability should issue in the event he elects to
7 file an appeal from the judgment in this case. See Rule 11, Federal Rules Governing Section 2254
8 Cases (the district court must issue or deny a certificate of appealability when it enters a final
9 order adverse to the applicant).
10 DATED: October 27, 2011
11
12
13
14
15
16
TIMOTHY J BOMMER
UNITED STATES MAGISTRATE JUDGE
17
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