Jackson v. Harrington
Filing
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FINDINGS and RECOMMENDATIONS, recommending that petitioner's 1 Application for Writ of Habeas Corpus be denied, signed by Magistrate Judge Charlene H. Sorrentino on 8/31/2011. Within 21 days after being served with these F/Rs, any party may file written Objections with Court and serve a copy on all parties. (Marciel, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LANDON BYRON JACKSON,
Petitioner,
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No. CIV S-10-CV-0391 GEB CHS P
vs.
KELLY HARRINGTON,
Respondent.
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FINDINGS AND RECOMMENDATIONS
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1. INTRODUCTION
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Petitioner, Landon Byron Jackson, is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a
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cumulative sentence of fifty-four years and four months to life following his convictions by jury trial
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in the Sacramento County Superior Court, Case. No. 05F02532, for two counts of attempted murder
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with firearm and gang enhancements.1 Here, Petitioner presents various claims challenging the
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constitutionality of his convictions.
II. CLAIMS
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Petitioner was tried in two separate trials. The first trial resulted in a mistrial and he was
retried and convicted in a second trial.
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Petitioner presents several grounds for relief. Specifically, the claims are as follow,
verbatim:
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(1)
The trial court abused its discretion prejudicially under
Gardeley and Evidence Code section 352 by permitting
Brown to testify to the substance of police reports recounting
[his] alleged involvement in 5 uncharged crimes. [His] Sixth
Amendment right to confrontation as interpreted by Crawford
was violated. If [his] trial counsel was required to
specifically object on Crawford grounds then counsel’s
assistance was ineffective.
(2)
The record lacks substantial evidence to support the trial
court’s denial of [his] Batson-Wheeler motion.
(3)
The prosecutor committed prejudicial misconduct and
violated [his] federal constitutional right to Due Process and
a fair trial. If [his] trial counsel’s objections were
insufficient, the counsel’s assistance was ineffective.
(4)
Cumulative prejudice amounted to a violation of [his] right to
Due Process.
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Pet. at 6-7.
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After careful consideration of the record and the applicable law, it is recommended
that each of Petitioner’s claims be denied..
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III. BACKGROUND
A. FACTS
The basic facts of Petitioner’s crimes were summarized in the unpublished opinion
of the California Court of Appeal, Third Appellate District, as follows:
At the conclusion of the first joint trial of defendant and his former
girlfriend, Kaydee Wormington, two separate juries deadlocked.
Both defendant and Wormington had testified, and that testimony
was read to the jury during defendant’s second trial.
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At the retrial, the only real issue was who shot at siblings Alicia and
Ricky Canady on December 13, 2004, both of whom were standing
in the driveway of William Jefferson’s house. The basic story line is
not disputed. A group of friends, at least one of whom was a member
of the Meadowview Bloods street gang and some of whom were
smoking marijuana, were socializing in front of William Jefferson’s
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house. A yellow Mustang, driven by a young white woman, stopped
in front of the house. A passenger asked, “Cuz where are you all
from?” After Ricky responded “this is Meadowview,” the passenger
shouted something like, “this is a Meadowview killer” and began
shooting into the group. Alicia was shot twice in the leg.
There were weaknesses in two of the identifications to be sure. One
of the two witnesses who identified defendant was high on marijuana
at the time of the shooting and unable to identify the driver; the
second was mentally impaired. The third witness, one of the victims
of the attempted murder and a Meadowview Blood, positively
identified one of defendant’s little “homeys,” Corey Gaines, as the
shooter and testified that defendant was not the person who opened
fire on the day of the shooting.
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Sixteen-year-old William Jefferson smoked three or four marijuana
“blunts” a day and had smoked marijuana just before the shooting.
The marijuana made him feel lazy and slowed him down. He could
not identify the color or length of the driver’s hair, but he did see a
bald-headed black male in the rear passenger seat behind the driver.
He could not say if the shooter had any facial hair. He told
investigators the shooter’s gun was black; at the first trial he said he
was not sure if it was a semiautomatic or a revolver, and at the second
trial he testified that it was a chrome semiautomatic. During crossexamination, he refused to read any more of his prior testimony and
had to be admonished that he did not have the liberty to choose what
he wanted to look at.
Jefferson was not sure if he had been smoking before he was shown
a photographic lineup. He picked defendant out of the lineup twoand-a-half months after the shooting, and at trial he identified
defendant as the shooter. He claimed he had seen defendant once,
maybe six months to a year before the shooting, when he was riding
a bus and a friend of his had pointed defendant out. He was unable
to identify the driver.
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The record is replete with references to Michael Morgan’s limitations
as a witness. The prosecutor emphasized that there was a
considerable lag in time between her asking him a question and his
response. The court gave her some leeway to lead her witness, over
defense objection, because of Morgan’s difficulty in understanding
the questions. He was easily confused and often contradicted either
his earlier testimony or his answers in the first trial. For example, he
testified the Mustang was coming from one direction and later
testified it came from the opposite direction. He could not read maps.
Yet he too identified defendant as the shooter, both in a photographic
lineup and at trial.
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Ricky Canady had disavowed his gang affiliation with the Bloods,
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was married, attended community college full time, and was seeking
work at the time of trial. Soon after the shooting, he spent the night
with his girlfriend. That night, Corey Gaines, also knowing as P.K.
for Piru Killer, spent the night at the same apartment. Canady, who
was drunk, thought Gaines was the shooter. The next day they hung
out together and Canady concluded, based on Gaines’s [sic] behavior,
that he must not have been the shooter after all. Two years later he
changed his mind again and identified Gaines as the shooter. At trial,
he insisted that defendant was not the man who shot at him.
Whatever the limitations of the testimony offered by Jefferson and
Morgan that we might accept, we cannot discount the significance of
the testimony offered by defendant’s girlfriend and percipient
witness, Kaydee Wormington. Wormington’s testimony from the
previous trial was read into the record after she asserted her Fifth
Amendment right to remain silent at her second trial.
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On December 12, 2004, Wormington and her father purchased a
yellow Mustang with a manual transmission. Her father gave her
instructions on how to operate a stick shift because she had never
driven one before. The following day she picked up defendant and
Corey Gaines in her yellow Mustang. Wormington testified that
defendant told her to stop the car in front of a house with a group of
African-Americans in the driveway. She complied.
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She further testified that Corey Gaines and defendant got out of the
car. It is unclear from her testimony if Gaines got completely out of
the car, but it is clear that, according to Wormington, he was back in
the car before she heard any shots. Defendant, however, was out of
the car when she heard one of the males respond “Meadowview,” and
then she heard four or five shots and saw someone fall to the ground.
During cross-examination, she stated that defendant shot the female
victim.
Defendant jumped back into the car, yelling at her, “[B]itch, drive.
Go. Go. Drive.” She testified she stalled the car twice and then
drove away. Defendant ultimately ordered her to get into the
passenger seat and he then drove.
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Wormington testified at some length how defendant had abused her
and called her names like “bitch, slut, whore, [and] punk.” He would
slap, choke, and “man-handle” her. She explained she stopped the
car our of fear of his reprisal if she disobeyed his order. She testified
she wanted out of the relationship but conceded she continued to call
him many times a day after the shooting. On one occasion over a
month after the shooting, she picked him up at the hospital because
he was crying and told her he needed her. She talked to him
frequently even after her arrest. The prosecutor elicited testimony
during cross-examination of Wormington that her allegations of
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abuse were made only after she attended a domestic violence class in
jail and belatedly admitted she was, in fact, with defendant at the time
of the shooting.
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Someone dropped a blue cell phone and left it at the scene of the
crime. Kaylee Wormington was the subscriber for that phone. She
testified she had given it to defendant as a birthday gift.
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Defendant’s testimony from the previous trial was also read back to
the jury after he too invoked his right not to testify. Defendant
admitted he did “hang with” and considered himself a member of the
Valley Hi Crips. The prosecution introduced many photographs of
defendant “throwing up” gang signs, dressed in blue, and
accompanying other known gang members. Jefferson testified the
shooter was wearing a blue do-rag, a blue beanie, and a blue jacket;
Ricky Canady testified the shooter was wearing a blue do-rag and
“all blue” clothing.
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A gang expert testified to the customs and practices of AfricanAmerican gangs in general and the Valley Hi Crips in particular. She
explained, as gang experts customarily do, gang psychology and
sociology, including such fundamentals as: Crips wear blue and
utilize their left sides (e.g., an earring in the left ear), hand signs are
the mark of group solidarity or challenge, a soldier in a gang is
“someone who on a regular basis will put in work for the gang” and
thereby attain status within the gang hierarchy, violence breeds fear
and respect, daytime shootings are particularly effective for
maintaining control in neighborhoods, and a Crip’s reference to a
Blood as “cuz” as well as the inquiry “where are you from?” are
considered challenges.
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The primary activities of the Valley Hi Crips, according to the expert,
are homicides, attempted homicides, robberies, narcotics dealing, and
stealing vehicles. The expert testified that in December 2004 the
Meadowview Bloods and Valley Hi Crips were engaged in a gang
war. She reported that defendant was a validated Crip gang member,
and she believed he had attained status as a soldier for the Valley Hi
Gangster Crips.FN1 She opined that the shooting was for the benefit of
the Valley Hi Gangster Crips, who would be given credit within the
gang community for catching Meadowview Bloods “slipping,”
meaning they were caught without their guns. Defendant does not
challenge any of the gang-related testimony of the expert, including
the evidence of two predicate offenses committed by gang members
and personally investigated by the expert.2
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Petitioner does, however, challenge the expert’s hearsay based testimony regarding five
incidents of uncharged prior misconduct in which Petitioner was allegedly involved. This claim is
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FN1. At times during the trial, counsel or witnesses referred
to the Valley Hi Crips as the Valley Hi Gangster
Crips.
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Lodged Doc. 4 at 2-8.
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Following his second jury trial, Petitioner was found guilty of the attempted murders
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of Ricky and Alicia Canady, and the jury found true gang and firearm penalty enhancements as to
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both crimes. Petitioner was sentenced to an aggregate determinate term of twenty-nine years and
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four months, plus a consecutive indeterminate term of twenty-five years to life.
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Petitioner appealed his convictions to the California Court of Appeal, Third Appellate
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District. The court affirmed Petitioner’s convictions with a reasoned opinion on February 11, 2009.
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He then filed a petition for review of the appellate court’s decision in the California Supreme Court.
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The court denied the petition without comment on May 15, 2009. Petitioner filed this federal
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petition for writ of habeas corpus on February 16, 2010. Respondent filed its answer on June 1,
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2010, and Petitioner filed his traverse on June 24, 2010.
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IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW
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This case is governed by the provisions of the Antiterrorism and Effective Death
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Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after
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its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114
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F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a
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person in custody under a judgment of a state court may be granted only for violations of the
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Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362,
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375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits
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in state court proceedings unless the state court’s adjudication of the claim:
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
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more thoroughly discussed in subsection V(A), below.
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determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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28 U.S.C. § 2254(d). Although “AEDPA does not require a federal habeas court to adopt any one
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methodology,” there are certain principles which guide its application. Lockyer v. Andrade, 538
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U.S. 63, 71 (2003)
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First, AEDPA establishes a “highly deferential standard for evaluating state-court
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rulings.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether
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the law applied to a particular claim by a state court was contrary to or an unreasonable application
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of “clearly established federal law,” a federal court must review the last reasoned state court
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decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911,
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918 (9th Cir. 2002). Provided that the state court adjudicated petitioner’s claims on the merits, its
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decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232
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F.3d 1031, 1035 (9th Cir. 2000). Conversely, when it is clear that a state court has not reached the
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merits of a petitioner’s claim, or has denied the claim on procedural grounds, AEDPA’s deferential
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standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d
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1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
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Second, “AEDPA’s, ‘clearly established Federal law’ requirement limits the area of
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law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme
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Court decisions.” Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words,
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“clearly established Federal law” will be “ the governing legal principle or principles set forth by
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[the U.S. Supreme] Court at the time a state court renders its decision.” Lockyer, 538 U.S. at 64.
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It is appropriate, however, to examine lower court decisions when determining what law has been
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"clearly established" by the Supreme Court and the reasonableness of a particular application of that
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law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).
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Third, the “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have
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“independent meanings.” Bell v. Cone, 535 U.S. 685, 694 (2002). Under the “contrary to” clause,
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a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion
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opposite to that reached by the Supreme Court on a question of law, or if the state court decides the
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case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams,
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529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling
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federal authorities “so long as neither the reasoning nor the result of the state-court decision
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contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not
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contain “a formulary statement” of federal law, but the fair import of its conclusion must be
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consistent with federal law. Id.
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Under the “unreasonable application” clause, the court may grant relief “if the state
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court correctly identifies the governing legal principle...but unreasonably applies it to the facts of
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the particular case.” Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a court may not
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issue the writ “simply because that court concludes in its independent judgment that the relevant
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state-court decision applied clearly established federal law erroneously or incorrectly.” Williams,
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529 U.S. at 410. Thus, the focus is on “whether the state court’s application of clearly established
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federal law is objectively unreasonable.” Bell, 535 U.S. at 694 (emphasis added).
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Finally, the petitioner bears the burden of demonstrating that the state court’s
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decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S.
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at 24 ; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
V. DISCUSSION
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A.
EXPERT TESTIMONY REGARDING FIVE PRIOR UNCHARGED CRIMES
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Petitioner claims that the trial court abused its discretion under section 352 of the
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California Penal Code and the criteria established in People v. Gardley, 14 Cal.4th 605 (1996), and
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violated his right to confront the witnesses against him by allowing the prosecution’s gang expert
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witness, Officer Wendy Brown, to testify that her expert opinion that Petitioner was a soldier in the
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Valley Hi Crips street gang was based, in part, on Petitioner’s alleged involvement in five uncharged
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crimes. Petitioner argues that testimony regarding the five uncharged crimes was irrelevant to the
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charges he faced at trial and constituted inadmissible hearsay because it was derived from Brown’s
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review of police reports containing statements made to police by third-parties not subject to cross-
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examination and not shown to be unavailable, in violation of his rights under the federal
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Confrontation Clause. Moreover, Petitioner contends that the testimony regarding the alleged prior
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crimes committed by him was unreliable and its probative value was outweighed by the risk that the
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jury would consider it as independent proof of the crimes alleged therein. The California Court of
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Appeal, Third Appellate District, described the background of Petitioner’s claim and rejected it on
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direct appeal, explaining as follows:
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Defendant does, however, challenge the expert’s hearsay testimony
regarding five incidents of prior uncharged misconduct in which he
was allegedly involved. The admissibility of the prior uncharged
misconduct was hotly contested at trial. In a lengthy pretrial brief,
the prosecutor argued that defendant’s past conduct “is relevant to his
gang membership and more importantly, to issues of intent that the
People must prove pursuant to PC 186.22(b)(1). The enhancement
places on the People the burden to prove that Jackson maintained the
specific intent to promote, further or assist the Crip[s] street gang
when he committed his crime for the benefit of, at the discretion of,
or in association with the gang.”
In the same brief and at the hearing on the admissibility of the
evidence, the prosecutor expressed an expansive notion of the
admissibility of otherwise inadmissible hearsay as a foundation for
a gang expert’s opinion. Relying on People v. Valdez (1997) 58
Cal.App.4th 494, 506-507, she argued “the expert may recite
otherwise inadmissible hearsay in open court, and the extent of such
testimony is limited only by the discretion of the trial court, and
reviewable only on an abuse of discretion standard.” The use of
otherwise inadmissible police reports, she believed, was not an issue
for the court and the damage could be remedied through crossexamination or instruction to the jurors that they were not to consider
the evidence for the truth of the matters stated.
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At the hearing, the prosecutor went even further, proposing that there
are special rules for the admissibility of otherwise inadmissible
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hearsay in gang cases. She argued, “I think that in many different
areas of criminal law there are special rules. In sex crimes, there’s
1108. Molest cases there are special rules of evidence. [¶] And in
gangs we have the basic gang allegation, which really in effect opens
the door regardless of -- whether a defense lawyer likes it or not, it
places in issue the defendant’s specific intent. His motive behind
why he commits the charged crime.”
Again the prosecutor alluded to the special rules for gang cases.
“[W]hen you read the cases, including Gardeley, they are really
characterizing what comes in under gang expert as character
evidence. [¶] . . . [¶] So I do think there are special rules and special
applications when it comes to gangs that you don’t see in a regular
case when we are discussing 1101 evidence. [¶] . . . [Defense
counsel] can say that I’m piling it on or trying to pile it on, but the
bottom line is that I’m able to pile it on. And I’m entitled to it, to pile
it on under the law. A law allows me to do that.”
The court allowed the expert to testify at some length and in specific
detail about each of five charges she obtained from various police
reports. The expert based her opinion that defendant was a soldier
for the Valley Hi Gangster Crips, in part, on the five following
allegations:
1. On October 14, 2003, defendant allegedly was in the back seat of
a car with other Valley Hi Crips. He was wearing a blue shirt under
a blue sweater with blue shoelaces and purportedly placed a handgun
behind some salsa in a 7-Eleven store. A loaded .45-caliber
semiautomatic handgun was found in the car. Defendant admitted
that both guns were his and suggested he needed them for protection
because “[y]ou never know what’s gonna go on out here.”
2. On August 19, 2004, there was a drive-by shooting in the South
Sacramento neighborhood of Meadowview, an area known as Blood
territory. The occupants of one of the cars, a black Honda Accord
with flip-up lights, were wearing blue bandanas over their faces. At
least one of the victims was a Meadowview Blood.
3. Six days later, defendant allegedly was driving the same black
Honda. The owner, one of defendant’s girlfriends, purportedly said
she had loaned the Honda to defendant on August 19. Defendant
abandoned the car and attempted to escape. When apprehended, he
allegedly told a police officer he was a former member of the Valley
Hi Crips. There was a fresh bullet hole in the trunk of the car.
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4. On November 24, 2004, occupants in two groups of cars were
reported to be shooting at each other. One of the cars was a white
Chrysler Sebring. Police officers, according to the report, found
defendant’s license, a cell phone, and registration papers naming
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Kaydee Wormington as the owner.
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5. On February 21, 2005, Justin Starks was approached by three
males later identified as Corey Gaines, Dimetric Mosely, and
defendant. According to Starks, defendant recognized him and
appeared initially hesitant to participate in the robbery, but when
Starks resisted Gaines’s [sic] advance, defendant shot him twice in
the back and accidentally shot Gaines as well. Defendant purportedly
took Gaines to the hospital.
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Defendant was not charged with any of these offenses. The expert
testified that these incidents supported her opinion that defendant was
soldier in the Valley Hi Gangster Crips because “[h]e is a person
who’s out there where handguns are involved, people are getting
shot” and he is “out with other gang members committing violent
crimes.”
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Expert Testimony in the Prosecution of Street Terrorists
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To address the state of crisis caused by violent street gangs in
California, the Legislature sought to eradicate criminal activity by
gangs, in part by enhancing gang members’ sentences when their
crimes are committed “for the benefit of, at the direction, or in
association with any criminal street gang with the specific intent to
promote, further, or assist in any criminal conduct by gang
members.” (Pen. Code, § 186.22, subd. (b) (1); see California Street
Terrorism Enforcement and Prevention Act, Pen. Code, §§ 186.20 et
seq.) Many jurors are unfamiliar with the intricacies of gang
subcultures, including the meaning of their special vernacular, their
code of conduct, their symbols, their values, and their objectives. As
a result, the prosecution of gang members would be crippled without
expert testimony on such matters as the culture and habits of gangs
(People v. Ochoa (2001) 26 Cal.4th 398, 438; People v. Ferraez
(2003) 112 Cal.App.4th 930-931) ; whether and how a crime was
committed to benefit or promote a gang (People v. Villegas (2001) 92
Cal.App.4th 1217, 1227); rivalries between gangs (People v.
Williams (1997) 16 Cal.4th 153, 192-193); gang-related tattoos, gang
graffiti, hand signs, and gang colors and attire (Ochoa, supra, 26
Cal.4th at pp. 438-439; People v. Loeun (1997) 17 Cal.4th 1, 6-7);
and the primary activities of a specific gang (People v. Gardeley
(1996) 14 Cal.4th 605, 620 (Gardeley)).
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Evidence Code section 801 provides a vehicle for admitting gang
expert opinion. Pursuant to section 801, “[a]n expert may offer
opinion testimony if the subject is sufficiently beyond common
experience that it would assist the trier of fact. [Citation.] The
opinion must be based on a matter perceived by, or personally
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known, or made known to the witness at or before the hearing that is
of the type that reasonably may be relied on in forming an opinion on
the subject to which the expert’s testimony relates.” (People v.
Killebrew (2002) 103 Ca.App.4th 644, 651 (Killebrew).) An expert
may offer an opinion in response to a hypothetical question based on
facts shown by the evidence. (In re Frank S. (2006) 141 Cal.App.4th
1192, 1197.)
As noted above, the prosecution took an extremely expansive view
of the admissibility of gang expert testimony under Evidence Code
section 801 and Gardeley, supra, 14 Cal.4th 605. Does Gardeley, as
the prosecution argued, create a special rule of admissibility for
hearsay evidence of a gang member’s prior acts of uncharged
misconduct as long as that evidence is introduced as a basis for an
expert opinion and, as the trial court believed, it appears reliable?
Though we conclude that any error was harmless, we reject this
interpretation of Gardeley.
In Gardeley, the Supreme Court upheld the admissibility of a gang
expert’s opinion, including his testimony recounting hearsay.
“Expert testimony may also be premised on material that is not
admitted into evidence so long as it is material of a type that is
reasonably relied upon by experts in the particular field in forming
their opinions. [Citations.] Of course, any material that forms the
basis of an expert’s opinion testimony must be reliable. [Citation.]
For ‘the law does not accord to the expert’s opinion the same degree
of credence of integrity as it does the data underlying the opinion.
Like a house built on sand, the expert’s opinion is no better than the
facts on which it is based.’ [Citation.] [¶] So long as this threshold
requirement of reliability is satisfied, even matter that is ordinarily
inadmissible can form the proper basis for an expert’s opinion
testimony.” (Gardeley, supra, 14 Cal.4th at p. 618.)
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The trial court, like the court in Killebrew, believed that Gardeley
compelled the admission of the five incidents of uncharged
misconduct because, in the court’s estimation, the hearsay met the
threshold test of reliability. (Killebrew, supra, 103 Cal.App.4th at pp.
652-653.)FN2 But admission of the evidence was not compelled. The
trial court overlooked the Supreme Court’s admonition to exercise its
discretion “‘to weigh the probative value of inadmissible evidence
relied upon by an expert witness . . . against the risk that the jury
might improperly consider it as independent proof of the facts recited
therein.’ (People v. Coleman (1985) 38 Cal.3d 69, 91 . . . . ) This is
because a witness’s [sic] on-the-record recitation of sources relied on
for an expert opinion does not transform inadmissible matter into
‘independent proof’ of any fact.” (Gardeley, supra, 14 Cal.4th at p.
619.)
25
FN2. In light of our disposition, we need not address
18
19
20
21
22
23
26
12
1
2
whether admission of the hearsay evidence violated
defendant’s right to confrontation as that right has
been clarified by the Supreme Court in Crawford v.
Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177].
3
4
5
6
7
8
9
10
Thus, we reject the prosecution’s notion that Gardeley creates a
special rule of admissibility for the admission of a gang expert’s
testimony. The prosecution’s analogies to Evidence Code section
1108 and child molestation cases are inapt because the Legislature in
those cases created an express exception to allow the admission of
otherwise inadmissible evidence. The prosecutor has pointed to no
comparable statute allowing gang expert opinion whether or not the
evidence is inflammatory, unduly prejudicial, necessary, or
cumulative. Nor does Gardeley condone the admission of hearsay
that, under the circumstances presented, effectively transforms
inadmissible matter into independent proof of any fact. Rather,
Gardelely reaffirms the long-standing principle that a trial court must
exercise its discretion to assure that a gang expert does not become
a mere conduit for inadmissible and extraordinarily prejudicial
hearsay.
11
12
13
14
15
16
17
18
19
20
21
There is no doubt that hearsay evidence about gangs is admissible to
buttress a gang expert’s opinion that the crime is “gang-related” or
committed to “benefit” the gang. However, here the contested
evidence is not about the gang, but about defendant. And the
evidence is not merely about defendant’s membership in the gang,
association with gang members, or conformity with gang customs,
but about five specific incidents of uncharged misconduct. The
hearsay was relied on by the prosecution not to prove the shooting
was “gang-related” or to “benefit” the gang, but as evidence of
defendant’s specific intent.
Notwithstanding limiting instructions by the court, there is a danger
that gang-related propensity evidence of uncharged misconduct will
reflect a defendant’s bad character and jurors will infer that he would
have been more likely to commit the charged offense. Evidence
Code section 1101 bars admission of such propensity evidence unless
it is admitted to prove intent, identity, motive, etc. Defense counsel
urged the prosecutor to clarify whether she was seeking admission of
the evidence based on section 1101. He pointed out, “that would
have to come from evidentiary sources that are properly admissible
and not multiple layers of hearsay through an expert.”
22
25
The prosecutor pointed out that in the first trial she did not “establish
or use per say [sic] 1101. We used primarily information -- detailed
information from Wendy Brown as a basis for opinion.” This was a
prelude to her explanation of the special rule of evidence in gang
cases. She later argued, “when you read the cases, including
Gardeley, they are really characterizing what comes in under a gang
26
13
23
24
1
2
expert as character evidence,” and she repeated her understanding
that “there are special rules and special applications when it comes
to the gangs that you don’t see in a regular case when we are
discussing 1101 evidence.”
3
4
5
6
7
8
9
10
11
12
13
14
The prosecutor could not have been more wrong. The Supreme
Court has been unrestrained in its condemnation of admitting
evidence of uncharged misconduct to show criminal propensity
except under the narrowly defined circumstances set forth in the
evidence code. (See Evid. Code, §§ 1101, 1108.) In People v.
Smallwood (1986) 42 Cal.3d 415 (Smallwood),FN3 for example, the
court wrote: “The harm which flows from allowing the jury to hear
evidence of other crimes is too well known to require much
restatement. In People v. Thompson (1980) 27 Cal.3d 303 . . . , this
court rigorously enforced the rule that evidence of other crimes may
never be admitted to show the accused’s criminal propensity.”
(Smallwood, at p. 428.) The court reiterated the rationale for this
rule: “‘“The primary reasoning that underlies this basic rule of
exclusion is not the unreasonable nature of the forbidden chain of
reasoning. [Citation.] Rather, it is the insubstantial nature of the
inference as compared to the ‘grave danger of prejudice’ to an
accused when evidence of an uncharged offense is given to a jury.
[Citations.] As Wigmore notes, admission of this evidence produces
an ‘over-strong tendency to believe the defendant guilty of the charge
merely because he is a likely person to do such acts.’ [Citation.] It
breeds a ‘tendency to condemn, not because he is believed guilty of
the present charge, but because he has escaped unpunished from other
offenses . . . .’”’” (Ibid.)
15
16
17
18
19
20
21
22
23
24
FN3. Smallwood predates the enactment of Evidence Code
section 1108 in 1995. (Stats. 1995, ch. 439, § 2.)
Gang evidence itself is similarly dangerous. “California courts have
long recognized the potentially prejudicial effect of gang membership
. . . . [¶] Thus, as a general rule, evidence of gang membership and
activity is admissible if it is logically relevant to some material issue
in the case, other than character evidence, is not more prejudicial than
probative and is not cumulative.” (People v. Albarran (2007) 149
Cla.App.4th 214, 223.) Here, of course, gang evidence was relevant
to proving the gang enhancement. But when that evidence involved
not only evidence related to the customs and habits of gangs, and not
only defendant’s affiliation with the gang in question, but unproven
and uncharged allegations that he committed specific gang-related
crimes in the past, the court erred by failing to exercise its discretion
to weigh the highly inflammatory and prejudicial impact on the jury.
25
Defendant insists the probative value of the expert testimony was
weak and cumulative. The Attorney General disagrees and posits
that, in any event, the risk of prejudice was ameliorated by the court’s
26
14
4
limiting instruction to the jurors wherein they were admonished not
to consider the hearsay evidence for the truth of the matter asserted,
but only to evaluate the basis upon which the expert’s testimony was
based. We need not resolve this dispute because any error in
admitting the expert testimony was clearly harmless under the
standard of review applicable to this case given the overwhelming
evidence of defendant’s guilt.
5
Prejudice
6
Defendant claims the erroneous admission of the hearsay evidence of
his uncharged misconduct was so serious as to render his trial
fundamentally unfair and thereby violate his federal constitutional
right to due process. We disagree.
1
2
3
7
8
“To prove a deprivation of federal due process rights, [defendant]
must satisfy a high constitutional standard to show that erroneous
admission of evidence resulted in an unfair trial. (Albarran, supra,
149 Cal.App.4th at p. 229.) “The admission of relevant evidence will
not offend due process unless the evidence is so prejudicial as to
render the defendant’s trial fundamentally unfair.” (People v.
Falsetta (1999) 21 Cal.4th 428, 439.) “The question is not whether
the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of
confidence.” (Kyles v. Whitely (1995) 514 U.S. 419, 434 [131
L.Ed.2d 290].)3
9
10
11
12
13
14
15
But even if defendant persuaded us the admission of the evidence
violated the due process requirement, we find the error harmless.
Constitutional violations are subject to federal harmless-error
analysis under Chapman, supra, 386 U.S. at p. 24. “‘[A]n otherwise
valid conviction should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitutional error was
harmless beyond a reasonable doubt.’ [Citation.] The harmless error
inquiry asks: ‘Is it clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error?’
[Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 608.)
16
17
18
19
20
21
3
25
The state appellate court’s citation to Kyles is not factually on point because that case
involved a prosecutor’s failure to disclose favorable evidence to a criminal defendant instead of a
court’s erroneous admission of evidence. Despite the factual dissimilarities, the prejudice standard
set forth in Kyles is not inconsistent with the standards discussed, below, for determining whether
a defendant has been prejudiced by the erroneous admission of evidence and, thus, has suffered a
federal due process violation. See, e.g., Williams v. Taylor, 529 U.S. 362, 375 (2000) (relief should
be granted where an error of constitutional magnitude has rendered a trial fundamentally unfair in
violation of due process).
26
15
22
23
24
1
2
3
4
5
6
After carefully reviewing the entire record, we find the error harmless
under the Chapman standard. The evidence that defendant was the
shooter was compelling. Eyewitnesses Jefferson and Morgan, albeit
with their limitations as percipient witnesses fully exposed during
their cross-examination, both identified defendant as the shooter.
Jefferson saw a yellow Mustang trying to leave, and heard the clutch
trying to engage, after a bald-headed black male got into the rear
driver’s side. After two attempts, the driver of the Mustang was able
to engage the clutch and left the scene rapidly, “[b]urning rubber.”
Defendant’s girlfriend, Kaydee Wormington, owned a yellow
Mustang. She admitted she stalled the car twice before leaving the
scene.
7
8
9
10
11
12
Most damning was Wormington’s testimony. The jury heard her
testimony from the first trial that she saw defendant get out of the
Mustang and approach a group of African-Americans, and heard him
ask where they were from. A heavyset African-American male
responded, “Meadowview,” and she heard gunshots and saw
someone fall to the ground. Defendant jumped back into the car,
yelling “bitch, drive.” Wormington stalled the car. She testified she
finally got the car started, drove to the end of the street, and stalled
the car again. Defendant then told Wormington to get in the
passenger seat, and he got out of the car, went around to the driver’s
seat, and drove off.
13
14
In addition to three eyewitness identifications, someone dropped a
blue cell phone at the scene of the shooting, and defendant admitted
Wormington had given him the phone as a gift.
15
16
17
18
19
20
We recognize one of the victims, Ricky Canady, identified Corey
Gaines as the shooter, and defendant testified that on the day of the
shooting, he told Wormington to take Gaines out in her yellow
Mustang. But Canady did not identify Gaines until two years after
the shooting. Until then, he refused to cooperate with the
investigation. We do not believe his belated identification was
credible enough to overshadow the other three eyewitness
identifications, including, most importantly, Wormington’s testimony
that defendant fired four or five shots at the group of people standing
on the driveway.
25
On this record, we conclude defendant would not have obtained a
more favorable verdict in the absence of the evidentiary error. As we
have repeated throughout this opinion, his participation in the gang
was undisputed. The erroneously admitted evidence of gang-related
misconduct reinforced his image as a gangster, but it was not unlike
his own admissions and the photographs of him as an active
participant in gang life. Moreover, the jury was appropriately
admonished not to consider evidence for the truth of the alleged
misconduct, and we presume the jury followed the court’s
26
16
21
22
23
24
1
2
3
instructions. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.) In
sum, the positive identification by three witnesses, coupled with
evidence that defendant left his phone at the scene, renders it clear
beyond a reasonable doubt that the jury would not have acquitted
defendant even if the prior misconduct evidence had not been
admitted.
4
Lodged Doc. 4 at 8-21.
5
The question of whether evidence of prior uncharged acts was properly admitted
6
under either Gardeley or section 352 of the California Evidence Code is not cognizable in this
7
federal habeas corpus proceeding because federal habeas corpus relief is generally not available to
8
correct alleged errors in the application or interpretation of state law or procedure. Estelle v.
9
McGuire, 502 U.S. 62, 67 (1991). “State court rulings on the admissibility of evidence generally
10
fall outside the scope of federal habeas relief, which is designed only to remedy violations of federal
11
law.” Winzer v. Hall, 494 F.3d 1192, 1198 (9th Cir. 2007). The only question before this court,
12
therefore, is whether the trial court committed an error that rendered the trial so arbitrary and
13
fundamentally unfair that it violated federal due process. Id. See also Jammal v. Van de Kamp, 926
14
F.2d 918, 919 (9th Cir. 1991) (“[T]he issue for us, always, is whether the state proceedings satisfied
15
due process; the presence or absence of a state law violation is largely beside the point.”).
16
To the extent that Petitioner’s claim is grounded generally in a violation of his federal
17
due process rights, the United States Supreme Court has held that habeas corpus relief should be
18
granted where constitutional errors have rendered a trial fundamentally unfair. Williams v. Taylor,
19
529 U.S. 362, 375 (2000). No Supreme Court precedent has made clear, however, that admission
20
of irrelevant or overly prejudicial evidence can constitute a due process violation warranting habeas
21
corpus relief. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (“The Supreme Court
22
has made very few rulings regarding the admission of evidence as a violation of due process.
23
Although the Court has been clear that a writ should be issued when constitutional errors have
24
rendered the trial fundamentally unfair, it has not yet made a clear ruling that admission of irrelevant
25
26
17
1
or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of
2
the writ.” (citation omitted)). Nor has the United States Supreme Court “expressly held that it
3
violates due process to admit other crimes evidence for the purpose of showing conduct in
4
conformity therewith, or that it violates due process to admit other crimes evidence for other
5
purposes without an instruction limiting the jury’s consideration of the evidence to such purposes.”
6
Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001). In fact, the Court has expressly left open
7
this question. See Estelle, 502 U.S. at 75 n.5 (“Because we need not reach the issue, we express no
8
opinion on whether a state law would violate the Due Process Clause if it permitted the use of ‘prior
9
crimes’ evidence to show propensity to commit a charged crime.”). Accordingly, Petitioner has
10
failed to demonstrate that the state appellate court’s rejection of his federal due process claim was
11
contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. §
12
2254(d)(1). See also Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th Cir. 2006) (denying the
13
petitioner’s claim that the introduction of propensity evidence violated his due process rights under
14
the Fourteenth Amendment because “the right [petitioner] asserts has not been clearly established
15
by the Supreme Court, as required by AEDPA”); Holgerson v. Knowles, 309 F.3d 1200, 1202 (9th
16
Cir. 2002) (habeas corpus relief not warranted unless due process violation was “clearly established”
17
under federal law; Alvarado v. Hill, 252 F.3d 1066, 1068-69 (9th Cir. 2001) (same).
18
Further, even assuming the testimony was admitted in error, the testimony did not
19
have a “substantial and injurious effect of influence in determining the jury’s verdict.” Brecht v.
20
Abrahamson, 507 U.S. 619, 637 (1993). As noted by the state appellate court, any threat of
21
improper prejudice flowing from admission of evidence of prior uncharged acts was mitigated by
22
the trial court’s instruction directing the jury to consider the evidence only “for the limited purpose
23
of showing the information upon which the gang expert based her opinion . . . [and] not to be
24
considered . . . as evidence of the truth of the facts disclosed by those statements.” CT at 1101. The
25
jury in Petitioner’s case is presumed to have followed this instruction. Old Chief v. United States,
26
18
1
519 U.S. 172, 196-97 (1997); United States v. Reed, 147 F.3d 1178, 1180 (9th Cir. 1998).
2
In addition, to the extent Petitioner’s claim bases his claim on a violation of the
3
Confrontation Clause, he has also failed to demonstrate that he is entitled to federal habeas corpus
4
relief. The Confrontation Clause of the Sixth Amendment, made applicable to the states through the
5
Due Process Clause of the Fourteenth Amendment, requires that a criminal defendant be afforded
6
the right to confront and cross-examine witnesses against him. See Pointer v. Texas, 380 U.S. 400,
7
403 (1965).
8
Confrontation Clause is violated when testimonial hearsay evidence is admitted under circumstances
9
where the criminal defendant had no opportunity to conduct a cross-examination. Crawford v.
10
Washington, 541 U.S. 36, 68 (2004). The Court rejected such statements as exceptions to the
11
Confrontation Clause, regardless of their demonstrated reliability, on the grounds that “dispensing
12
with confrontation because testimony is obviously reliable is akin to dispensing with jury trial
13
because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Id. at
14
62. While the Crawford Court specifically left “for another day any effort to spell out a
15
comprehensive definition of ‘testimonial,’” it gave examples. “Whatever else the term covers, it
16
applies at minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former
17
trial; and to police interrogations.” Id. at 68.
In 2004, the United States Supreme Court held that the Sixth Amendment’s
18
Subsequently, the Supreme Court held that the core class of testimonial statements
19
covered by the Confrontation Clause includes affidavits or declarations, made under circumstances
20
which would lead an objective witness reasonably to believe that the statement would be available
21
for use at a later trial, because such affidavits are “functionally identical to live, in-court testimony,
22
doing ‘precisely what a witness does on direct examination.’” Melendez-Diaz v. Massachussetts, 129
23
S.Ct. 2527, 2532 (2009) (quoting Davis v. Washington, 547 U.S. 813, 830 (2006). On the other
24
hand, “it is undisputed that public records, such as judgments, are not themselves testimonial in
25
nature and that these records do not fall within the prohibition established by the Supreme Court in
26
19
1
Crawford.” United States v. Weiland, 420 F.3d 1062, 1077 (9th Cir. 2005) (finding non-testimonial
2
various public records including fingerprints, a photograph, and records of conviction); Melendez-
3
Diaz, 129 S.Ct. at 2538 (“Documents kept in the regular course of business [are non-testimonial]
4
and may ordinarily be admitted at trial despite their hearsay status.”).
5
Assuming for the purposes of this report that the admission of the gang expert’s
6
testimony regarding prior uncharged crimes constituted improper testimonial hearsay evidence,
7
Petitioner is still not entitled to federal habeas corpus relief on this claim. On federal habeas corpus
8
review, Confrontation Clause violations are subject to harmless error review. Winzer v. Hall, 494
9
F.3d 1192, 1201 (9th Cir. 2007) (“Violation of the Confrontation Clause is trial error subject to
10
harmless-error analysis . . . because its effect can be ‘quantitatively assessed in the context of other
11
evidence presented’ to the jury.”); United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004).
12
Habeas corpus relief may not be granted based on a Confrontation Clause violation unless admission
13
of the offending evidence had a substantial and injurious effect or influence in determining the jury’s
14
verdict, and only if the petitioner can establish actual prejudice. Hernandez v. Small, 282 F.3d 1132,
15
1144 (9th Cir. 2002) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). See also Lilly v.
16
Virginia, 527 U.S. 116, 139-140 (1999) (harmless error analysis applies to erroneous admission of
17
hearsay statements); Christian v. Rhode, 41 F.3d 461, 468 (9th Cir. 1994) (harmless error analysis
18
applies to alleged violations of the Confrontation Clause).
19
On the record in this case, any error in admission of the expert’s testimony regarding
20
prior uncharged crimes was harmless because introduction of the expert’s testimony did not render
21
his trial fundamentally unfair and did not have a substantial or injurious effect on the jury’s verdict.
22
As the state appellate court explained, evidence of Petitioner’s guilt was substantial, and that court’s
23
evaluation of the evidence presented against Petitioner at trial, as quoted above, is fully supported
24
by the record. Three eyewitnesses, including Petitioner’s own girlfriend, identified him as the
25
shooter and described the specifics of the shooting consistently. Petitioner’s girlfriend also admitted
26
20
1
driving the yellow Mustang which was described by witnesses as the vehicle in which the shooter
2
was riding. A blue cell phone was found at the scene of the shooting and Petitioner’s girlfriend
3
testified that she had given it to Petitioner, and Petitioner identified it as the phone she had given to
4
him. Moreover, while admission of evidence of prior uncharged acts may have emphasized
5
Petitioner’s participation in the Valley Hi Crips, Petitioner’s own testimony and photographs of him
6
flashing gang signs had the same effect. The state court opinion rejecting Petitioner’s argument is
7
a reasonable construction of the evidence in this case and is not contrary to or an objectively
8
unreasonable application of clearly established federal law. See Woodford v. Visciotti, 537 U.S. 19,
9
25 (2002); 28 U.S.C. § 2254(d)(1).
Petitioner is not entitled to federal habeas corpus relief on this claim.
10
11
B.
TRIAL COURT’S DENIAL OF THE BATSON-WHEELER MOTION
12
Petitioner claims that the evidentiary record does not support the trial court’s denial
13
of his Batson-Wheeler motion, which challenged the prosecutor’s use of a peremptory challenge to
14
excuse prospective juror no. 11, Ms. Craig, a prospective juror of African-American ancestry. The
15
California Court of Appeal, Third Appellate District, considered and rejected Petitioner’s claim on
16
direct appeal, explaining as follows:
17
18
19
20
Defendant contends he was denied his federal constitutional right to
equal protection (Batson v. Kentucky (1986) 476 U.S. 79, 89 [90
L.Ed. 69] (Batson)) and his state constitutional right to a trial by a
jury drawn from a representative cross-section of the community
(People v. Wheeler (1978) 22 Cal.3d 258, 265-266 (Wheeler)) when
the prosecutor exercised a peremptory challenge to excuse an
African-American woman from the jury venire. We reject his claim.
25
“The Batson three-step inquiry is well established. First, the trial
court must determine whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge based
on race. Second, if the showing is made, the burden shifts to the
prosecutor to demonstrate that the challenges were exercised for a
race-neutral reason. Third, the court determines whether the
defendant has proven purposeful discrimination. The ultimate burden
of persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike. [Citation.] The three-step procedure
26
21
21
22
23
24
1
also applies to state constitutional claims.” (People v. Lenix (2008)
44 Cal.4th 602, 612-613 (Lenix).)
2
3
4
5
6
7
8
9
10
11
12
13
Here the trial court ruled that the exercise of the peremptory
challenge to the sole African-American on the venire established a
prima facie case. As a result, the prosecutor offered three
permissible, race-neutral bases for the challenge. The prosecutor
explained: “I have three grounds that cause me concern with Ms.
[C.]. And, actually, they were asked -- that I really ponder with this
particular juror because she appeared to be a conservative. She
appeared visually to me to be a conservative lady. She has a good
job, and she has no children. I thought that might be a plus, and,
actually, there wouldn’t be any baggage.
“But the thing that caused me concern were [sic] her feelings. She
initially said that she had strong feelings about the juror system, the
criminal system and initially went into how the system didn’t work.
She was rehabilitated to a certain extent by the Court, certainly
enough to get over a cause challenge. But what I heard from her is,
she served on a panel, apparently not -- Reached a verdict, which
must have been not guilty, which caused her some concern because
she felt that the person was probably guilty -- That the prosecutor had
not proven their case, she stated.
“And the bottom line was, she felt that -- These are her words -‘Innocent people in jail’ and some ‘guilty people on the street’.
14
15
16
17
18
19
20
21
22
“The ‘guilty people on the street’ didn’t affect me too much, but the
‘innocent people in jail’ caused me concern because in a non-guilty
verdict, a red flag goes up in my mind, in the application of
reasonable doubt.
“In the particular case, I wouldn’t want misapplication to be applied
and have her go back to those strong feelings of that -- That Mr.
Jackson would be one of those innocent people in jail.
“Something else that caused me concern was that her nephew was
prosecuted in Sacramento County, in what I would consider a remote
time ago, in a fraud arrest. It was three, four years ago.
“And the last thing that caused me quite a bit of concern was that she
had a partner -- Her current partner was prosecuted in a D.V.,
domestic-violence case, two years ago. This is even more recent than
her nephew. It was in San Joaquin County.
23
24
“This person I’m not sure, male or female, but this person was
prosecuted, and she felt from that, and from her guilty plea, that there
was no opportunity for both sides to present their case.
25
26
22
1
“That, to me, is a very, very defense-oriented statement in itself.
2
“In the particular case, I am working with [defense counsel]
regarding Miss Wormington’s transcript. At least the Court has some
indication of some of the subjects raised in that transcript. Although
a lot of the detail value of Miss Wormington’s domestic-violence
allegation are [sic] probably not going to be included in a read-back,
I feel that there is at least the framework of the D.V. defense that she
brought in in the first trial that will not be stricken by this Court,
because she was absolutely cross-examined on it by [defense
counse.].
3
4
5
6
7
8
9
“Because of that, there is an issue as to how this woman would feel
about another woman making allegations that involve concerns about
domestic violence.
“So, I mean, with all that, I felt comfortable, very comfortable in
that.”
10
11
12
13
14
15
16
17
18
19
20
21
Once the race-neutral explanation is offered, “the trial court must
determine whether the opponent of the strike has proved purposeful
racial discrimination.” (People v. Fiu (2008) 165 Cal.App.4th 360,
391 (Fiu).) “At the third stage of the Wheeler/Batson inquiry, ‘the
issue comes down to whether the trial court finds the prosecutor’s
race-neutral explanations to be credible. Credibility can be measured
by, among other factors, the prosecutor’s demeanor; by how
reasonable, or how improbable, the explanations are; and by whether
the proferred rationale has some basis in accepted trial strategy.’
[Citation; fn. omitted.] In assessing credibility, the court draws upon
its contemporaneous observations of the voir dire. It may also rely
on the court’s own experiences as a lawyer and bench officer in the
community, and even the common practices of the advocate and the
office who employs him or her.” (Lenix, supra, 44 Cal.4th at p. 613.)
The trial court made a “sincere and reasoned effort to evaluate the
prosecutor’s explanations for her excusal of the prospective juror [ ].”
(People v. Jordan (2006) 146 Cal.App.4th 232, 246.) The trial court
explained, at some length: “Counsel is allowed to use the totality of
the circumstances, including the fact that counsel has challenged
other similarly situated members of the majority group on an
identical or comparable ground. So, essentially, that’s what you have
here.
22
25
“You know, one of the things that [the prosecutor] hangs her hat on
is the fact that the affected juror, the juror in question, Miss [C.], had
indicated, quite clearly, that, you know, that she felt the person
during her prior jury service was guilty. But the jury did reach a notguilty verdict based on the law, and she did indicate that she had a
problem with that.
26
23
23
24
1
2
“In fact, she went further by stating that there were innocent people
in jail and guilty people on the street. And, yes, I did try to
rehabilitate her, and I do think that if counsel had made a motion for
cause to exclude her, I would have denied such a motion.
3
4
5
6
“But I am -- I do find it relevant that, based on that reason alone -And [the prosecutor] actually challenged other similarly situated
members of the majority group -- In other words, of Caucasian [sic],
because, let’s face it, the majority of the jurors that we have here
today, even the ones in the box, the majority of the jurors are
Caucasian, and she did challenge them on identical or comparable
grounds.
7
8
9
“In fact, I recollect that, Miss. [A. P.] having some sentiments, but
certainly Miss [R.] was clearly there. I mean, she said -- there was
another juror who said it, ‘and I’m just like her’. And when I
referenced Miss [C.], and I talked about gut feelings about guilt or
innocence, then she indicated, yes, that was the conversation.
10
11
“And I will note -- And the reason I brought that up is because I will
note that [the prosecutor] did exclude, did exclude [P.] -- Actually,
her name is [P.A.]. (Sic)
12
13
“She did exclude Miss [A.], and she also did exclude [N. R.]. So if
one were to look at this objectively she essentially excluded two
members --
14
15
16
“Oh, let me say this. Miss [R.] did not appear to be Caucasian,
though; she actually appeared to me to be either Japanese or Korean,
although her name certainly is not a Japanese surname nor a Korean
surname. But I do find that Miss [P.] -- Miss [A.] certainly was
Caucasian. And she was excluded for that reason.
17
18
“And you know, quite frankly, that is a non-discriminatory
justification. And I think it’s an accurate justification, as well, you
know, based on the affected jurors’ responses to the question.
19
20
21
“And also, you know, she did have some involvement with the justice
system, via her nephew and via her partner that, you know, it was
pretty clear that she was not satisfied with the outcome of at least the
domestic-violence case. But she did indicate she could set it aside
and be fair and impartial to both sides.
22
24
“But I do find that the prosecution has offered non-discriminatory
justification in all -- In three of these instances, first of all, the
feelings about the justice system, i.e., reaching a not-guilty verdict
and feeling that the defendant was guilty.
25
“Her nephew was prosecuted in Sacramento three or four years ago
26
24
23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
presumably by the very same office that [the prosecutor] worked for,
and she had a partner in the DV case two years ago in San Joaquin,
and she was not satisfied with the outcome.
“So I do find that there was a -- I do find that there are nondiscriminatory justifications. So I do find at this time that the
Wheeler/Batson motion must fail, and so it is denied.”
Given the trial court’s sincere and reasoned effort to evaluate the
merits of the prosecutor’s explanations, we give deference to the
court’s ability to distinguish “‘bona fide reasons from sham excuses’”
and review the ruling on “purposeful racial discrimination for
substantial evidence.” (Fiu, supra, 165 Cal.App.4th 415, 469.)
Defendant urges us to conduct a comparative analysis to evaluate
whether the prosecutor’s stated reasons for exercising a peremptory
challenge are truthful or pretextual. “Comparative juror analysis is
evidence that, while subject to inherent limitations, must be
considered when reviewing claims of error at Wheeler/Batson’s third
state when the defendant relies on such evidence and the record is
adequate to permit the comparisons.” (Lenix, supra, 44 Cal.4th at p.
607.) Defendant’s argument notwithstanding, a comparative analysis
supports the trial court’s ruling.
The prosecutor excused three jurors who had expressed
dissatisfaction with the criminal justice system. Skepticism about the
fairness of the criminal system is a valid ground for excusing a juror.
(People v. Gray (2005) 37 Cal.4th 168, 192; people v. Calvin (2008)
159 Cal.App.4th 1377, 1386.) Juror [C.] was the most empathetic.
She expressed her disappointment with the criminal justice system on
multiple occasions, including her prior jury service and her partner’s
recent experience. She believed that many innocent people were
incarcerated while the guilty went free. She expressed her regret that,
as a juror, she was compelled to acquit a defendant, even though in
her gut she believed him to be guilty. The prosecutor was justifiably
reluctant to have such a skeptic on the jury.
19
24
Two other jurors were excused for the same reason. Juror [P.] had a
similar experience as a juror wherein “the burden of proof was not
proven” and the defendant was acquitted. Similarly, Juror [R.], who
had served as a juror in a battery case, had a “gut feeling” that the
defendant was guilty, but based “on evidence and the testimony,” the
jury acquitted. In all three cases, the prosecutor excused prospective
jurors who gave tangible evidence of their disappointment in the
criminal justice system. It was their unpleasant or unsatisfactory
experiences, rather than any racial prejudice, that motivated the
prosecutor to dismiss them.
25
Defendant now minimizes the significance of this factor, however,
26
25
20
21
22
23
1
2
3
4
5
6
7
8
9
10
11
12
and emphasizes that Jurors [C.] and [P.], like two other jurors, had
relatives who had been prosecuted. Because the prosecutor did not
excuse either of the two other jurors, defendant argues the
prosecutor’s exercise of a peremptory challenge to Juror [C.] was
racially motivated. Not so. Defendant’s selective use of some, but
not all, of the factors affecting the wisdom of choosing particular
jurors highlights the inherent limitations of a comparative analysis.
While it is true that jurors who were not excused had relatives who
had been prosecuted, as did Juror [C.], neither of them expressed
dissatisfaction or skepticism about the fairness of the criminal justice
system. But Juror [C.]’s blunt indictment that “I just felt like when
we finished, the system really hadn’t worked” provided an adequate
racially neutral justification for excusing her.
In sum, the prosecutor offered credible race-neutral explanations for
challenging Juror [C.], who happened to be African-American. The
trial court carefully evaluated those explanations and considered how
the prosecutor had used the same criteria to evaluate other jurors as
well. Thus, the trial court’s ruling is entitled to deference and its
factual finding that the challenge was not racially motivated is
supported by substantial evidence. We find no Batson/Wheeler error.
Lodged Doc. 4 at 21-30.
13
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that
14
the Equal Protection Clause prohibits a prosecutor from exercising peremptory challenges to strike
15
a venire person on the basis of race. People v. Wheeler, 22 Cal.3d 148 (1978) is the California state
16
counterpart to Batson. Yee v. Duncan, 463 F.3d 893, 896 (9th Cir. 2006). However, it is the
17
standards of Batson that control the disposition of Petitioner’s claim on federal habeas corpus
18
review. Lewis v. Lewis, 321 F.3d 824, 827 (9th Cir. 2003).
19
In order to prevail on a Batson claim, a defendant must first establish a prima facie
20
case of purposeful discrimination. Batson, 476 U.S. at 96-97; Lewis, 321 F.3d at 830; United States
21
v. DeGross, 960 F.2d 1433, 1442 (9th Cir. 1992). “To establish a prima facie case, the defendant
22
must show that ‘he is a member of a cognizable racial group,’ Batson, 476 U.S. at 96, and that ‘the
23
facts and circumstances of the case raise an inference’ that the prosecution has excluded venire
24
members from the petit jury on account of their race.” McClain v. Prunty, 217 F.3d 1209, 1219-20
25
(9th Cir. 2000) (quoting Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000)). In deciding
26
26
1
whether a defendant has made the requisite showing, the trial court should consider all relevant
2
circumstances. Batson, 476 U.S. at 96.
3
If a prima facie case is made out, “the burden shifts to the State to come forward with
4
a neutral explanation for challenging” the jurors in question. Batson, 476 U.S. at 97; DeGross, 960
5
F.2d at 1442; Stubbs, 189 F.3d at 1104. “The prosecutor’s challenges need not rise to a level
6
justifying use of a challenge for cause.” United States v. Power, 881 F.2d 733, 740 (9th Cir. 1989)
7
(citing Batson, 476 U.S. at 87-88). Indeed, for the purposes of this step the prosecutor’s explanation
8
need not be “persuasive or even plausible.” Purkett v. Elem, 514 U.S. 765, 768 (1995). Rather, a
9
neutral explanation in this context “means an explanation based on something other than the race
10
of the juror.” McClain, 217 F.3d at 1220 (quoting Hernandez v. New York, 500 U.S. 352, 360
11
(1991)). “At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation.
12
Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be
13
deemed race-neutral.” McClain, 217 F.3d at 1220 (quoting Stubbs, 189 F.3d at 1105). As with any
14
credibility determination, the trial court’s own observations are of significant importance. Batson,
15
476 U.S. at 98, n.21. See also Lewis, 321 F.3d at 830.
16
At the final step of this inquiry, “the trial court must determine whether the defendant
17
has carried the burden of proving purposeful discrimination.” McClain, 217 F.3d at 1220 (quoting
18
Hernandez, 500 U.S. at 359). See also Batson, 476 U.S. at 98. The court must evaluate the
19
prosecutor’s reasons and make a credibility determination. Lewis, 321 F.3d at 830. A comparative
20
analysis of the struck juror with empaneled jurors “is a well-established tool for exploring the
21
possibility that facially race-neutral reasons are a pretext for discrimination.” Lewis, 321 F.3d at
22
830. If a review of the record undermines the prosecutor’s stated reasons, or many of the stated
23
reasons, then the explanation may be deemed a pretext. Id. The proffer of various faulty reasons
24
and only one or two otherwise adequate reasons may undermine the prosecutor’s credibility to such
25
an extant that a court should sustain a Batson challenge. Id. at 831.
26
27
1
On the other hand, “[t]he fact that a prosecutor’s reasons may be ‘founded on nothing
2
more than a trial lawyer’s instincts about a prospective juror’ does not diminish the scope of
3
acceptable invocation of peremptory challenges, so long as they are the actual reasons for the
4
prosecutor’s actions.” Power, 881 F.2d at 740 (quoting United States v. Chinchilla, 874 F.2d 695,
5
699 (9th Cir. 1989)). “Evidence in the record of objective reasons to strike a juror implies that racial
6
bias did not motivate the prosecutor.” Boyd v. Newland, 393 F.3d 1008, 1013 (9th Cir. 1987).
7
Petitioner bears the burden of demonstrating the existence of unlawful discrimination,
8
Batson, 476 U.S. at 93, as this burden of persuasion “rests with, and never shifts from, the opponent
9
of the strike.” Purkett, 514 U.S. at 768. However, Petitioner “is entitled to rely on the fact, as to
10
which there can be no dispute, that peremptory challenges constitute a jury selection practice that
11
permits ‘those to discriminate who are of a mind to discriminate.’” Batson, 476 U.S. at 96 (quoting
12
Avery v. Georgia, 345 U.S. 559, 662 (1953)).
13
A state court’s finding that a prosecutor has not exhibited discriminatory intent in
14
exercising peremptory challenges “represents a finding of fact of the sort accorded a great degree
15
of deference.” Hernandez, 500 U.S. at 364. Thus, in order for Petitioner to obtain habeas corpus
16
relief “[u]nder AEDPA, . . . a federal habeas court must find the state-court conclusion ‘an
17
unreasonable determination of the facts in light of the evidence presented in the State court
18
proceeding.” Rice v. Collins, 546 U.S. 333, 338 (2006) (quoting 28 U.S.C. § 2254(d)). “[A] federal
19
habeas court can only grant [habeas corpus relief] if it was unreasonable to credit the prosecutor’s
20
race-neutral explanations for the Batson challenge.” Id. In determining whether a state court’s
21
application of law or factual determination is “unreasonable,” the court cannot simply consider
22
whether it would have reached a different outcome on the same record. Id. (“Reasonable minds
23
reviewing the record might disagree about” what the ultimate issue is for habeas corpus relief.).
24
“The ‘unreasonable application’ clause requires the state court decision to be more than incorrect
25
or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Only if the evidence is “too powerful
26
28
1
to conclude anything but” the contrary should the district court grant relief. Miller-El v. Dretke, 545
2
U.S. 231, 265 (2005).
3
Under the authorities discussed above, the only issue for review is whether the state
4
appellate court was unreasonable in determining that the prosecutor’s stated race-neutral reasons for
5
excusing prospective juror Craig were genuine. Here, the prosecutor articulated several reasons for
6
excusing Ms. Craig, including (1) her negative impressions of the criminal justice system as a result
7
of her previous experience as a juror in a case in which she felt a guilty defendant was acquitted;;
8
(2) her view that there were innocent people in jail and guilty people on the streets; (3) the arrest of
9
her nephew several years prior; and (4) her dissatisfaction in the outcome of the prosecution of her
10
partner in a recent domestic violence case. These are all permissible, non-discriminatory reasons
11
for exercising peremptory challenges. See Mitleider v. Hall, 391 F.3d 1039, 1048 (9th Cir. 2004)
12
(previous negative experience with law enforcement or the judicial system constitutes an acceptable
13
race-neutral explanation for striking a potential juror); United States v. Thompson, 827 F.2d 1254,
14
1260 (9th Cir. 1987) (“Excluding jurors . . . because they acquitted in a prior case, or because of a
15
poor attitude in answer to voir dire questions is wholly within the prosecutor’s prerogative.”).
16
Having reviewed the record, and in light of the governing deferential standard of
17
review, the state appellate court’s determination that the reasons given by the prosecutor for
18
excusing Ms. Craig were not a pretext for racial discrimination cannot be found unreasonable. The
19
prosecutor expressed reasonable grounds for the use of a peremptory challenge to excuse Ms. Craig,
20
and there is no indication in the record that the reasons were pretextual. The stated reasons were
21
“clear and reasonably specific”, Purkett, 514 U.S. at 768-69, as well as race-neutral. In addition,
22
Petitioner’s argument that the prosecutor’s allegedly discriminatory motive was demonstrated by
23
her retention of other jurors with similar characteristics to stricken jurors is without merit. As the
24
state appellate court explained, while the retained jurors possessed some comparable characteristics
25
with prospective juror Craig, there were additional characteristics identified by the prosecutor as
26
29
1
grounds for excusal which Craig possessed and the retained jurors did not.
Petitioner is not entitled to federal habeas corpus relief on this claim.
2
3
C.
PROSECUTORIAL MISCONDUCT
4
Petitioner claims that multiple acts of prosecutorial misconduct rendered his trial
5
fundamentally unfair. Specifically, he contends that the prosecutor attempted to dissuade his alibi
6
witness, Tiffany Avent, from testifying, assumed facts not in evidence by questioning her regarding
7
whether her husband abused her, and argued that she had not testified at the first trial and thus was
8
likely being forced to provide alibi testimony at the second trial. In addition, Petitioner argues that
9
the prosecutor committed misconduct during closing arguments by making a personal plea that the
10
jury find Petitioner guilty; discussing the demographics and sociology of the victims, and discussing
11
the sexism experienced by “girls in the hood.”
12
13
14
15
16
17
18
19
20
21
The California Court of Appeal, Third Appellate District, considered and rejected
Petitioner’s claim on direct appeal, explaining its reasoning as follows:
Defendant accuses the prosecutor of six different instances of
misconduct. He asserts the judgment must be reversed based on a
persistent pattern of misconduct. We disagree.
“In general, a prosecutor commits misconduct by the use of deceptive
or reprehensible methods to persuade either the court or the jury.
[Citations.] But the defendant need not show that the prosecutor acted
in bad faith or with appreciation for the wrongfulness of the conduct,
nor is a claim of prosecutorial misconduct defeated by a showing of
the prosecutor’s subjective good faith.” (People v. Price (1991) 1
Cal.4th 324, 447.) A prosecutor’s conduct violates a defendant’s
constitutional rights only when the pattern of behavior is so egregious
it infects the entire trial with such unfairness as to make the
conviction a denial of due process. (People v. Mendoza (2007) 42
Cal.4th 686, 700.)
25
Although a prosecutor’s duty to prosecute vigorously allows her to
strike hard blows, defendant reminds us she “‘is not at liberty to
strike foul ones. It is as much [her] duty to refrain from improper
methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.’ [Citation.]” (People
v. Pitts (1990) 223 Cal.App.3d 606, 691.) Yet “‘“when the claim [of
misconduct] focuses upon comments made by the prosecutor before
26
30
22
23
24
1
2
the jury, the question is whether there is a reasonable likelihood that
the jury construed or applied any of the complained-of remarks in an
objectionable fashion.”’” (People v. Ayala (2000) 23 Cal.4th 225,
284.)
3
Tiffany Avent
4
5
6
7
8
9
10
11
12
13
14
15
16
17
Defendant asserts that the prosecutor attempted to dissuade Tiffany
Avent from testifying, assumed facts not in evidence by examining
her about an abusive relationship, and informed the jury that she had
not testified in the first trial to enable her to argue Avent had been
forced to provide alibi testimony. None of defendant’s allegations
constitute misconduct.
The prosecutor requested the court to appoint counsel for Avent
before she testified because there was an allegation she had picked up
defendant and Worthington after the shooting, and therefore she
might have been an accessory after the fact. Moreover, she was
recorded discussing her testimony with her husband, and although
she told an investigator she was working on the day of the shooting,
her work records revealed she was not. Counsel was appointed,
Avent testified, and there was neither any misconduct nor prejudice
arising from appointment of counsel.
Defendant objects to the prosecutor’s questions of Avent whether her
husband had abused her and the prosecutor’s statement during
closing argument that Avent had not testified at the first trial. Avent
appeared at this trial for the first time as an alibi witness for
defendant. During her examination, the prosecutor challenged her
testimony and asked, “Miss Avent, do you feel compelled to testify
as you have today because you’re in an abusive relationship with
your husband?” Avent testified that the last time her husband was
incarcerated it was not because he had abused her and she did not feel
compelled to provide defendant an alibi.
18
19
20
21
The prosecutor argued: “Tiffany Avent; is it consistent with the
defendant’s testimony? Oh, you bet it is. And I guess that’s why she
wasn’t asked to testify in the first trial. [¶] And what happened?
She’s talked to the defendant about 15 times. And regardless of
whether she’s -- realize [sic] she’s being coached or not, I believe she
does, the point now is she is an alibi witness.”
25
The prosecutor is free to challenge a defense witness’s [sic]
credibility and to urge the jurors to draw inferences from the
evidence. “It is not . . . misconduct to ask the jury to believe the
prosecutor’s version of events as drawn from the evidence. Closing
argument in a criminal trial is nothing more than a request, albeit
usually lengthy and presented in narrative form, to believe each
party’s interpretation, proved or logically inferred from the evidence,
26
31
22
23
24
1
2
of the events that led to the trial. It is not misconduct for a party to
make explicit what is implicit in every closing argument, and that is
essentially what the prosecutor did here.” (People v. Huggins (2006)
38 Cal.4th 175, 207.)
3
4
5
6
The fact remains that defendant presented a new alibi for his second
trial. Avant testified she had only recently come forward and thus it
was implicit she had not testified in the first trial. The prosecutor
properly challenged her motivation to testify and properly urged the
jury to reject a belated and unlikely alibi. We would not characterize
the prosecutor’s examination or argument as misconduct, let alone an
egregious pattern of misbehavior that compromised a fair trial.
7
Personal Plea
8
9
10
11
12
13
14
15
16
17
18
19
Defendant contends the prosecutor committed misconduct by making
a personal plea for a guilty verdict. The prosecutor argued: “I’m not
standing in front of you, nor do I come into court and say to you,
convict this man right here solely because he’s a gang member.
Because he is a gang member. And he’s a very active gang member.
That’s wrong. [¶] I want you to convict because you think he did it.
Because he did do it. And it’s important to me that you tell him that
you know that he did it.
Following defense counsel’s objection, the trial court told the
prosecutor to “please keep the personal out of it” and admonished the
jury that “What the attorneys say is not evidence.”
A prosecutor can express belief in a defendant’s guilt as long as it is
based on the evidence and does not suggest to the jury the belief is
based on information outside the trial record. (People v.
Mayfield 91977) 14 Cal.4th 668, 781-782.) Taken in context, the
prosecutor was urging the jury to convict defendant because he shot
the victims, not because he was a member of a gang. There is no
suggestion her belief was based on anything outside the evidence
admitted at trial. Moreover, after her innocuous and brief comment,
the trial court promptly admonished the jury. This argument does not
constitute misconduct.
20
Demographics and Sociology of Victims
21
25
During closing argument, the prosecutor lamented the consequences
of the gang subculture including violence, drugs, and a lack of
direction. She found this subculture depressing. In this context, she
made reference to the difference in upbringing between the victims
and the defendant. While pointing out that this week’s victims could
become next week’s perpetrators and vice versa, she mentioned: “But
the Canadys are kids from a much different upbringing than Mr.
Jackson. That much is clear. They are kids from the hood. Young
26
32
22
23
24
1
2
3
people. They are much more ghetto in their upbringing. Less
opportunities. [¶] And there are parts of this case that are very
depressing, and that’s one of ‘em. Because they don’t always or
haven’t always choosen [sic] that lifestyle or that [sic] a continuation
of what they were raised in, unlike this man who chose it. Who
didn’t get sucked in. He chose it.”
4
5
6
7
8
9
10
11
Defendant contends that evidence of the relative circumstances of the
two families was not admitted at trial and therefore the prosecutor
committed misconduct by introducing facts during argument.
(People v. Pinholster (1992) 1 Cal.4th 865, 948.) In a recorded
conversation, defendant bragged about choosing a gang lifestyle.
Moreover, the prosecutor may simply have been asking the jurors to
infer a difference between the gangster victims and the gangster
defendant. More importantly, the prosecutor’s isolated comment,
even if based on evidence not before the jury, was unlikely to
influence the jury. After all, the sociology of the gang subculture
pervaded this trial and slight gradations between those who were
“born into the hood” and those who volitionally chose it would have
had little impact in deciding whether defendant was the shooter. This
is not the kind of egregious misconduct that would necessitate a
reversal.
12
Girls in the Hood
13
14
15
16
17
18
In a similar vein, defendant argues the prosecutor again introduced
facts not in evidence when she argued there were young females
“with no self-esteem getting used and getting passed around in this
subculture. And that’s depressing. I mean, if you have daughters,
that’s depressing to know that they can have that low of a selfesteem.” She later connected to the theme of defendant [sic] by
referring to his alleged “slappings [of] Kaydee Wormington” and
asserting that “[t]his is a very sexist subculture. Very sexist. There
is all the bravado. Bravado, machismo, everything involved in this.
She gives me some very specific examples of being abused by
Landon Jackson.”
19
20
21
22
23
Wormington testified that defendant became aggressive, obsessive,
jealous, and abusive; called her names like “[b]itch, slut, whore,
punk”; and sometimes slapped and choked her. We agree with the
Attorney General that the prosecutor’s argument was a fair comment
on the evidence. Her testimony provided sufficient evidence to infer
a sexist subculture.
Lodged Doc. at 30-36.
24
On habeas corpus review, allegations of prosecutorial misconduct merit relief “only
25
if the misconduct rises to the level of a due process violation–not merely because [the reviewing
26
33
1
court] might disapprove of the prosecutor’s behavior.” Towery v. Schiriro, 641 F.3d 300, 306 (9th
2
Cir. 2010) (citing Seechrest v. Ignacio, 549 F.3d 789, 807 (9th Cir. 2008). See also Darden v.
3
Wainwright, 477 U.S. 168, 181 (1986) (for the purposes of federal habeas corpus review, the narrow
4
standard of due process applies to claims of prosecutorial misconduct) A prosecutor’s error or
5
misconduct does not, per se, violate a criminal defendant’s constitutional rights. See Jeffries v.
6
Blodgett, 5 F.3d 1180, 1191 (citing Darden, 477 U.S. at 181; Cambell v. Kincheloe, 829 F.2d 1453,
7
1457 (9th Cir. 1987)). Moreover, prosecutors are afforded reasonably wide latitude in fashioning
8
closing arguments, United States v. Birges, 723 F.2d 666, 671-72 (9th Cir. 1984), and are free to
9
argue “reasonable inferences from the evidence.” United States v. Gray, 876 F.2d 1411, 1417 (9th
10
Cir. 1989). “[P]rosecutors may strike ‘hard blows,’ based upon the testimony and its inferences,
11
although they may not, of course, employ argument which could fairly be characterized as foul or
12
unfair.” United States v. Gorostiza, 468 F.2d 915, 916 (9th Cir. 1972).
13
The question to be resolved is whether the alleged misconduct “‘so infected the trial
14
with unfairness as to make the resulting conviction a denial of due process.’” Hall v. Whitley, 935
15
F.2d 164, 165 (9th Cir. 1991) (quoting Donnelly v. DeChritoforo, 416 U.S. 637, 643 (1974)). In
16
order to determine whether prosecutorial misconduct occurred, it is necessary to examine the entire
17
proceedings and place the prosecutor’s conduct in context. See Greer v. Miller, 483 U.S. 756, 765-
18
66 (1987). Factors to be considered in determining whether habeas corpus relief is warranted
19
include whether the prosecutor manipulated or misstated the evidence; whether her comments
20
implicated other specific rights of the accused; whether the objectionable content was invited or
21
provoked by defense counsel’s argument; whether the trial court admonished the jurors; and the
22
weight of the evidence against the defendant. Darden, 477 U.S. at 181 (quoting Donnelly v.
23
DeChristoforo, 416 U.S. 637, 643 (1974). Thus, even where a prosecutor’s argument, questions or
24
behavior is found to be improper, relief is limited to cases in which a petitioner can establish that
25
the misconduct resulted in actual prejudice. Johnson v. Sublett, 63 F.3d 926, 930 (1995) (citing
26
34
1
Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). In other words, prosecutorial misconduct
2
violates due process when it has a substantial and injurious effect or influence in determining the
3
jury’s verdict. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
4
The state appellate court’s rejection of Petitioner’s prosecutorial misconduct claims
5
was not contrary to or an unreasonable application of clearly established federal law. The state
6
court’s characterizations of the prosecutor’s conduct were reasonable, and for the reasons set forth
7
by the state appellate court, the prosecutor’s conduct did not render Petitioner’s trial fundamentally
8
unfair in violation of his federal due process rights.
Most importantly, even if the prosecutor’s conduct amounted to error of a
9
10
constitutional magnitude, a harmless error analysis ensues.
11
demonstrate that he suffered actual prejudice as a result of any of the alleged misconduct. As
12
previously summarized herein, the material evidence and verbal testimony presented against
13
Petitioner at trial was significant. Thus, viewed in the context of the trial as a whole, it cannot be
14
determined that the Prosecutor’s conduct had a substantial and injurious effect or influence on the
15
jury’s verdict, or that there is a reasonable probability that the result of his trial would have been
16
different absent the alleged misconduct.
Petitioner is not entitled to federal habeas corpus relief on this claim.
17
18
Here, Petitioner has failed to
D.
CUMULATIVE EFFECT OF STATE LAW ERRORS
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Petitioner contends that the cumulative effect of the errors at trial, discussed above,
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deprived him of his right to due process and rendered his trial fundamentally unfair. The California
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Court of Appeal, Third Appellate District, considered and rejected this claim on direct appeal,
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explaining that “[n]one of the incidents we have addressed come close to the egregious misbehavior
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that jeopardizes a fair trial.” Lodged Doc. 4 at 36.
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In some cases, the combined effect of multiple trial errors may give rise to a due
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process violation if the trial was rendered fundamentally unfair, even where each alleged error
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considered individually would not require reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir.
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2007) (citing Donnelly v. Dechristoforo, 416 U.S. 637, 643 (1974); Chambers v. Mississippi, 410
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U.S. 284, 290 (1973)). The fundamental question in determining whether the combined effect of
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trial errors violated a defendant’s due process rights is whether the errors rendered the criminal
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defense “far less persuasive,” Chambers, 410 U.S. at 294, and thereby had a “substantial and
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injurious effect or influence” on the jury’s verdict. Parle, 505 F.3d at 927 (quoting Brecht, 507 U.S.
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at 637).
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“[C]umulative error analysis should evaluate only the effect of matters determined
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to be error, not the cumulative effect of non-errors.” United States v. Rivera, 900 F.2d 1462, 1471
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(9th Cir. 1990). If the evidence of guilt is otherwise overwhelming, the errors are considered
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harmless and the conviction will generally be affirmed. Parle, 505 F.3d at 928. On the other hand,
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if the government’s case on a critical element is weak, the combined effect of the error is more likely
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to be prejudicial. Id. In this case, the evidence against Petitioner was compelling, as discussed
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elsewhere herein. Moreover, as discussed above, Petitioner has suffered no errors of a federal
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constitutional magnitude. Thus, there is no combined effect of errors to be reviewed. United States
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v. Geston, 299 F.3d 1130, 1138 (9th Cir. 2002) (“Because there is only one error in this case,
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cumulative error analysis is not triggered.”); United States v. Sager, 227, F.3d 1138, 1149 (9th Cir.
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2000) (holding that “[o]ne error is not cumulative error”).
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Petitioner is not entitled to federal habeas corpus relief on this claim.
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VI. CONCLUSION
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IT IS RECOMMENDED that Petitioner’s petition for writ of habeas corpus be
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denied. These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days
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after being served with these findings and recommendations, any party may file written objections
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with the court and serve a copy on all parties. Such a document should be captioned “Objections
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to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served
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and filed within seven days after service of the objections. Failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d
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449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he elects
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to file petitioner may address whether a certificate of appealability should issue in the event he elects
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to file an appeal from the judgment in this case. See Rule 11, Federal Rules Governing Section 2254
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Cases (the district court must issue or deny a certificate of appealability when it enters a final order
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adverse to the applicant).
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DATED: August 31, 2011
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CHARLENE H. SORRENTINO
UNITED STATES MAGISTRATE JUDGE
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