Broadbent v. Martel
Filing
29
MEMORANDUM DECISION AND ORDER signed by Senior Judge James K. Singleton, Jr. on 11/20/2012 ORDERING that the Petition under 28:2254 for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED THAT the Court DECLINES to issue a Certificate of Appealability; Any further request for a Certificate of Appealability must be addressed to the Court of Appeals; the Clerk of the Court is to enter judgment accordingly. CASE CLOSED (Reader, L)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JAMUAL BROADBENT,
No. 2:11-cv-01711-JKS
Petitioner,
MEMORANDUM DECISION
vs.
M. MARTEL, Warden, Mule Creek State
Prison,
Respondent.
Jamual Broadbent, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. Broadbent is currently in the custody of the California
Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison.
Respondent has answered, and Broadbent has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Broadbent and his co-defendant Humberto Diaz were convicted by a Sacramento County
Superior Court jury of three counts of attempted murder (Cal. Penal Code §§ 187(a), 664) arising
out of a gang-related shooting. In December 2007 the trial court sentenced Broadbent to an
aggregate prison term of thirty-five years plus an indeterminate term of fifty years to life. The
California Court of Appeal, Third Appellate District, affirmed Broadbent’s conviction and
sentence in an unpublished decision,1 and the California Supreme Court denied review on
February 10, 2010. Broadbent filed his Petition for relief in this Court on June 22, 2011.
1
People v. Diaz, No. C057586, 2009 WL 3357924 (Cal. Ct. App. Oct. 20, 2009). The
Appellate Court did correct Broadbent’s presentence credits.
The factual basis underlying Broadbent’s conviction were summarized by the California
Court of Appeal.
In January 2006, Dorrate Hicks, who was 15 or 16 years old at the time, was
walking from his house near 26th Avenue and Martin Luther King, Jr. Boulevard in
Sacramento with his friend, Michael Jordan. As they were walking, Dorrate saw four
men standing around a street corner talking. Dorrate suggested turning back, but
Jordan kept going, and Dorrate stayed with him. As they passed the men, Jordan
stopped, shook someone’s hand, and asked where Ricky was. Dorrate kept walking.
One of the men told Jordan they did not know where Ricky was but they would let
Jordan know if they saw him. Jordan then caught up with Dorrate.
As they continued walking, one of the men (later identified as Diaz) asked,
“[W]here you all from?” Dorrate took this as a “kind of . . . threatening question,”
meaning “what gang do you belong to?” Jordan responded, “I’m from L.A. but I
don’t gang bang.” Diaz said something like, “[A]re you all from L.A? You all got
to get [the fuck] up out of here. You all don’t belong here.” He also said something
like, “Oak Park all mines,” which Dorrate understood to mean it was their territory.
Dorrate told the men they were leaving. Diaz told Dorrate, “Shut up, bitch or I’ll slap
you.”
Dorrate (followed by Jordan) walked quickly to Christian Brothers High
School, where there was more light, to call his brother Tykeymo Harrison to come
get him because he did not want to walk home. Dorrate told Harrison about the
incident with the four men. Harrison said he would come.
Harrison picked up Dorrate at the school next to Christian Brothers in an
Oldsmobile. (Jordan had left already.) Harrison was driving, and with him in the car
were their brother, Dorral; Dorral’s best friend, Anthony Watson; and Harrison’s
friend, Javan Gaut. Harrison told Dorrate to tell him where the men were because he
wanted to know why they were messing with Dorrate.
About 15 minutes after Dorrate had first encountered the men, he and the
others in the Oldsmobile arrived back at the corner. The men were still there. They
all got out of the car, which Harrison left running, and Diaz came into the middle of
the street, as did Harrison, Watson, and Gaut. Harrison said something like, “my
brother just told me one [of you] all from down here was messing with him,” and
Diaz turned and said something to two of the other men. In response, they walked
from one corner to another and around the back of a house. Dorral and Harrison
heard Diaz tell one of the other men something like, “go get a gun” or “go get the
gun.” Diaz then turned back and said Dorrate was not supposed to be there, “This is
Oak Park Bloods. We don’t know who your brother is.”
At that time, Dorral recognized Diaz as someone he had seen before at a
jewelry store. Dorral told Diaz he knew him, Diaz responded that he knew Dorral
too, they shook hands, and Diaz said, “[E]verything cool.”
Dorrate then saw the two men coming back. Gaut told the others that “they
was on point and let’s get up out of here.” Dorrate understood “on point” to mean
2
the men had a weapon. The two men were walking toward the car; the one in the
lead was later identified as Broadbent. Dorrate was the first one to get back in the
car, then Gaut, followed by Harrison. Before Dorral and Watson got back in, Dorral
looked at Broadbent and told him everything was cool and they were leaving. Dorral
then got back in the car, and as Watson was getting in, Broadbent started shooting
from just a few feet away. The windows on the passenger side shattered, and Watson
was hit in the head. Dorrate thought there were about six gunshots; Dorral thought
probably eight. Only after the shooting stopped was Harrison able to drive away.
Dorral was shot twice—one bullet hit him in the upper right arm and traveled
through his arm and chest, stopping in his neck; the other bullet struck his left wrist.
Harrison was shot in the shoulder. Watson was shot twice-one bullet hit his left
hand, but the other hit him in the head, leaving him in a vegetative state.
After the shooting, a police crime scene investigator examined the car at the
hospital and saw bullet holes in the right rear passenger door and a bullet hole in the
lower left front windshield.
Diaz and Broadbent were charged in a consolidated complaint with three
counts of attempted murder—one count each for Watson, Dorral, and Harrison. The
complaint included various enhancement allegations, including criminal street gang
enhancements on each charge.
At trial, Sacramento Police Detective Wendy Brown testified she was
working in the gang suppression unit in January 2006 and was the officer who
arrested Broadbent. She was also present at Diaz’s arrest two days later. When he
was arrested, Diaz had rock cocaine in a plastic baggie.
Detective Brown also testified as the prosecution’s gang expert. She testified
that Ridezilla (also known as Zilla, Underworld Zilla (U.Z.), and Clap City) is a
neighborhood-based gang that is made up primarily of members of the Oak Park
Bloods, along with members recruited from other neighboring gangs. Ridezilla is a
“very, very violent gang” and its primary activities are “[h]omicides, attempt[ed]
homicides, narcotics dealings, [and] assaults with deadly weapons.” “The rivals of
Ridezilla are anyone who challenges Ridezilla.” Ridezilla members “are very, very
often armed, and they are not afraid to use them.” Diaz and Broadbent were first
validated as members of Ridezilla in 2005, based in part on their own admissions of
gang membership. Detective Brown expressed her opinion that the shooting was
committed for the benefit of Ridezilla because “the gang . . . benefits by a show of
force in answering disrespect.”2
II. GROUNDS RAISED/DEFENSES
Broadbent raises eight grounds: (1) CALCRIM 600, the “kill-zone” instruction violates
the due-process clause; (2) ineffective assistance of counsel in failing to object to the
2
Diaz, 2009 WL 3357924 at *1-2.
3
prosecutor’s improper concurrent intent argument; (3) exclusion of Broadbent’s father and
brother deprived him of his Sixth Amendment right to a public trial; (4) the California ten-point
test for gang validation constitutes an invalid criminal profile; (5) to the extent that the gangexpert’s testimony was based upon hearsay it violated the Confrontation Clause of the Sixth
Amendment; (6) the evidence was insufficient to establish special allegations; (7) failure to strike
non-responsive answers in cross-examination resulted in the denial of a fair trial; and (8) denial
of bifurcation of gang-related allegations rendered the trial fundamentally unfair. Respondent
contends that the Petition is untimely; and that his third (denial of public trial), fourth (gang
validation test), and fifth (gang-related testimonial hearsay) are procedurally barred.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court renders its decision or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”3 The Supreme Court has explained that “clearly established Federal law” in
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the
time of the relevant state-court decision.”4 The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
3
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also Lockyer
v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
4
Williams, 529 U.S. at 412 (alteration added).
4
power of the Supreme Court over federal courts.5 Thus, where holdings of the Supreme Court
regarding the issue presented on habeas review are lacking, “it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal law.’”6 When a claim falls under the
“unreasonable application” prong, a state court’s application of Supreme Court precedent must
be “objectively unreasonable,” not just “incorrect or erroneous.”7 The Supreme Court has made
clear that the objectively unreasonable standard is “a substantially higher threshold” than simply
believing that the state-court determination was incorrect.8 “[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to whether the error ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’”9 In a
federal habeas proceeding, the standard under which this Court must assess the prejudicial
impact of constitutional error in a state court criminal trial is whether the error had a substantial
and injurious effect or influence in determining the outcome.10 Because state court judgments of
5
Early v. Packer, 537 U.S. 3, 10 (2002).
6
Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted);
see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam); Kessee v. MendozaPowers, 574 F.3d 675, 678-79 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir.
2009) (explaining the difference between principles enunciated by the Supreme Court that are
directly applicable to the case and principles that must be modified in order to be applied to the
case; the former are clearly established precedent for purposes of § 2254(d)(1), the latter are not).
7
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
omitted).
8
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
9
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
10
Fry v. Pliler, 551 U.S. 112, 121 (2007) (adopting the standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)).
5
conviction and sentence carry a presumption of finality and legality, the petitioner has the burden
of showing by a preponderance of the evidence that he or she merits habeas relief.11
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings. Cf. Felker v.
Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing
AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue
the writ in cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems,” not a substitute for ordinary error
correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.12
In applying this standard, this Court reviews the “last reasoned decision” by the state
court.13 State appellate court decisions that summarily affirm a lower court’s opinion without
explanation are presumed to have adopted the reasoning of the lower court.14 This Court gives
11
Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (citations omitted); see Wood v.
Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (stating that a federal court cannot grant “habeas
relief on the basis of little more than speculation with slight support”).
12
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).
13
Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297
F.3d 911, 918 (9th Cir. 2002)); cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (explaining
“how federal courts in habeas proceedings are to determine whether an unexplained order . . .
rests primarily on federal law,” and noting that federal courts must start by examining “the last
reasoned opinion on the claim . . . . ”).
14
Ylst, 501 U.S. at 802-03 (“Where there has been one reasoned state judgment rejecting
a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.”); cf. Richter, 131 S. Ct. at 784 (“As every Court of Appeals to consider
the issue has recognized, determining whether a states court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from the state
6
the presumed decision of the state court the same AEDPA deference that it would give a
reasoned decision of the state court.15
IV. DISCUSSION
A.
Timeliness
Respondent simply contends, without further explanation that “[i]t appears the Petition is
untimely by at least 30 days, 28 U.S.C. § 2244(d)(1)(A).” The limitations period of
§ 2244(d)(1)(A) is an affirmative defense that must be pleaded by the Respondent.16 The record
in this case indicates that the California Supreme Court denied review on February 10, 2010.
Broadbent’s conviction became final on direct review 90 days later when his time to file a
petition for certiorari in the Supreme Court expired,17 Monday, June 14, 2010. 28 U.S.C. § 2244
provides:
(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
court explaining the state court’s reasoning.”).
15
See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition
was not entitled to § 2254(d) deference).
16
Chaker v. Crogan, 428 F.3d 1215, 1220 (9th Cir. 2005).
17
Jimenez v. Quarterman, 555 U.S. 113, 119 (2009); Randle v. Crawford, 604 F.2d 1047,
1055-57 (9th Cir. 2010).
7
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitation under this subsection.
As relevant to this case, because there were no state post-conviction proceedings involved, only
one provision of § 2244 is involved, (d)(1)(A) (date the judgment of conviction became final).
Thus, Broadbent’s time to file his Petition in this Court expired on June 14, 2011, eight days
before Broadbent filed his Petition. An untimely petition is subject to dismissal.18
Broadbent contends that the limitations period was equitably tolled because of his mental
disability. ADEPA’S statutory limitations period may be tolled for equitable reasons.19 To
warrant equitable tolling, a petitioner “bears the burden of establishing two elements: (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way.”20 While a petitioner is required to pursue his rights diligently to warrant equitable tolling,
the appropriate standard is “reasonable diligence,” not “maximum feasible diligence.”21 A panel
of the Ninth Circuit has held that equitable tolling of the limitations period governing a habeas
petition is permissible when the petitioner can show mental impairment so severe that he or she
was unable personally to understand the need to timely file or prepare a petition, and that the
impairment made it impossible under the totality of circumstances to meet the filing deadline
despite petitioner's diligence.22 The panel then set forth the following guide:
18
Day v. McDonough, 547 U.S. 198, 201 (2006).
19
Holland v. Florida, 130 S.Ct. 2549, 2560 (2010) (citation omitted).
20
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citations omitted).
21
Holland, 130 S. Ct. at 2565.
22
Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010).
8
In practice, then, to evaluate whether a petitioner is entitled to equitable
tolling, the district court must: (1) find the petitioner has made a non-frivolous
showing that he had a severe mental impairment during the filing period that would
entitle him to an evidentiary hearing; (2) determine, after considering the record,
whether the petitioner satisfied his burden that he was in fact mentally impaired; (3)
determine whether the petitioner’s mental impairment made it impossible to timely
file on his own; and (4) consider whether the circumstances demonstrate the
petitioner was otherwise diligent in attempting to comply with the filing
requirements.23
In his Petition Broadbent affirmatively alleged his mental disability and its adverse
impact on his ability to timely file his Petition. In response, other than to assert the bare
conclusory defense of untimeliness, Respondent does not address the issue. In short, it does not
appear that Respondent disputes what was implicitly raised in the Petition, that the limitation
period was equitably tolled. Because Respondent bears the burden of establishing entitlement to
an affirmative defense and because the Respondent does not dispute Broadbent’s contentions, it
does not appear that an evidentiary hearing is required. Based upon the record before it, this
Court finds that Broadbent has made a prima facie showing that he was unable to timely file his
Petition for relief in this Court due to circumstances beyond his control, i.e., his mental
impairment, and Respondent has not countered that showing. Accordingly, the Petition was
timely filed.
B.
Procedural Bar
Respondent contends that Broadbent’s third (denial of public trial), fourth (gang
validation test), and fifth (gang-related hearsay testimony) are procedurally barred. A federal
habeas court will not review a claim rejected by a state court “if the decision of [the state] court
rests on a ground that is independent of the federal question and adequate to support the
23
Id. at 1100-01.
9
judgment.”24 “The state-law claim may be a substantive rule dispositive of the case, or a
procedural barrier to adjudication of the claim on the merits.”25 Procedural default does not
preclude federal habeas review unless the last state court rendering judgment in a case, clearly
and expressly states that its judgment rests on a state procedural bar.26 “[I]n order to constitute
adequate and independent grounds sufficient to support a finding of procedural default, a state
rule must be clear, consistently applied, and well established at the time of the petitioner’s
purported default.”27 A discretionary state procedural rule can be firmly established and regularly
followed, so as to bar federal habeas review, even if the appropriate exercise of discretion may
permit consideration of a federal claim in some cases but not others.28 The Court agrees with
Respondent that, because Petitioner’s claims were defaulted in state court on an adequate and
independent state ground, they will not be considered in federal habeas proceedings unless
Petitioner can demonstrate cause for the default and actual prejudice, i.e., a miscarriage of
justice.29
24
Coleman v. Thompson, 501 U.S. 722, 729 (1991).
25
Walker v. Martin, 131 S. Ct. 1120, 1127 (2011).
26
Teague v. Lane, 489 U.S. 288, 298-99 (1989) (citing Harris v. Reed, 489 U.S. 255,
262-63 (1989)).
27
Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir. 1996) (internal quotation marks and
citation omitted).
28
Walker v. Martin, 131 S. Ct. 1120, 1128 (2011); Beard v. Kindler, 130 S. Ct. 612, 618
(2009).
29
See Coleman v. Thompson, 501 U.S. 722, 729 (1991).
10
To prove a fundamental miscarriage of justice, Broadbent must show that a constitutional
violation probably resulted in his conviction despite his actual innocence.30 Although at the
gateway stage the petitioner need not establish his innocence as an “absolute certainty,” the
Petitioner must demonstrate that more likely than not, no reasonable juror could find him guilty
beyond a reasonable doubt.31
If a petitioner has procedurally defaulted on a claim, a federal court may
nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust
the claim; and (2) prejudice from the purported constitutional violation; or (3)
demonstrates that not hearing the claim would result in a “fundamental miscarriage
of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Sawyer v. Whitley, 505 U.S.
333, 339–40, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). An objective factor outside
of a petitioner’s control (e.g., ineffective assistance of counsel or a basis for the claim
that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S.
478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); McCleskey v. Zant, 499 U.S. 467,
497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The petitioner can meet the prejudice
prong if he demonstrates “that the errors . . . worked to his actual and substantial
disadvantage, infecting his entire [proceeding] with errors of constitutional
dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (citing United States
v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). A petitioner
can demonstrate a fundamental miscarriage of justice by “establish[ing] that under
the probative evidence he has a colorable claim of factual innocence.” Sawyer, 505
U.S. at 339, 112 S.Ct. 2514 (quotation marks omitted).32
Ground 3: Denial of Public Trial
The trial court excluded Broadbent’s father and brother from the courtroom. Broadbent
contends that this violated his Sixth Amendment right to a jury trial and that the right of a public
30
See Schlup v. Delo, 513 U.S. 298, 321-25 (1995) (linking miscarriages of justice to
actual innocence); United States v. Olano, 507 U.S. 725, 736 (1993) (“In our collateral-review
jurisprudence, the term ‘miscarriage of justice’ means that the defendant is actually innocent.”);
Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[I]n an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of cause for the procedural default.”).
31
House v. Bell, 547 U.S. 518, 538 (2006).
32
Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011).
11
trial is so fundamental that it cannot be waived by a failure to object at the time of trial. The
California Court of Appeal rejected Broadbent’s arguments.
Broadbent contends his “constitutional right to a public trial was violated
when the court excluded his father and brother from the audience without a finding
that would support an ‘overriding interest’ or even a ‘substantial basis’ to justify the
infringement upon his right to a public trial.” We conclude Broadbent forfeited this
argument by not raising it in the trial court, and we also reject his alternate argument
that his trial attorney was ineffective for failing to make this argument in the trial
court.
On the day of opening statements, as the court and counsel were addressing
a supplemental motion in limine outside the presence of the jury, the prosecutor
notified the court that Broadbent’s father and brother, who were in the hall outside
the courtroom, were wearing T-shirts that displayed some sort of message about
freeing Broadbent. Broadbent’s attorney left the courtroom and told them to leave
and come back wearing something else. Counsel noted there were jurors in the
hallway who saw the shirts. Accordingly, before opening statements began, the court
reminded the jury not to be influenced by anything outside the courtroom, including
“if you see anyone . . . wearing some clothing that might appear to be inappropriate.”
The next morning, after Dorrate finished testifying, one of the jurors reported
to the court that he had been in a stall in the bathroom when he heard two individuals
discussing Dorrate's testimony. The juror identified one of the individuals as
Broadbent’s brother. (It was his identical twin.) The description of the other
individual the juror provided matched Broadbent’s father.
Immediately thereafter, one of the other jurors and one of the alternate jurors
reported to the court that a member of the audience had tried to make small talk with
them in the hallway. Their description of that person matched Broadbent’s father.
Diaz’s attorney requested a separate trial based on the actions of Broadbent’s
father and brother. Broadbent’s attorney asked that the juror who overheard the
conversation in the bathroom be excused. The prosecutor opposed both requests but
asserted that the court “ha[d] enough to dismiss [Broadbent’s father and brother]
right now so they don't come back at 1:30.” The court asked if the matter was
submitted, and all three counsel agreed it was.
The trial court denied the defense requests but found that Broadbent’s father
and brother had “made attempts to influence this jury. And I’m going to have them
excused from this courtroom.” After excusing the jury for lunch, the court informed
Broadbent’s father and brother that they were “banned from this courtroom during
this pending trial” based on the shirt incident and the two conversations.
At no time did Broadbent’s attorney object to or argue against the exclusion
of Broadbent’s father and brother from the trial.
The initial question we face is whether Broadbent’s argument that the
exclusion of his father and brother violated his right to a public trial is properly
before us. Broadbent acknowledges that he did not make this argument in the trial
12
court, but he offers three different reasons why “[t]his constitutional claim is
reviewable despite lack of objection below.”
One, Broadbent contends that “the right to jury trial cannot be forfeited by
silence, but can only be waived by an express waiver from the defendant personally,
and the right to a public trial is an integral component of the jury trial right.” He
thereby implies that the right to a public trial-here, the right to have his father and
brother present at the trial cannot be forfeited by silence but must be expressly
waived. Our Supreme Court has repeatedly held otherwise. (See, e.g., People v.
Bradford (1997) 14 Cal.4th 1005, 1046-1047 [“a failure to object constitutes a
waiver of the right to a public trial” and “[n]o . . . personal waiver is expressly
required to waive the right to a public criminal trial”]; People v. Catlin (2001) 26
Cal.4th 81, 161 [“Failure to object [to closed proceedings] constitutes a waiver of the
claim on appeal”].) Thus, this argument fails.
Two, Broadbent contends that his “failure to object is excused by the fact that
there was no meaningful opportunity to object before the court ruled and an after-thefact objection would have been futile.” He is wrong. When the prosecutor asserted
“the Court has enough to dismiss [Broadbent’s father and brother] right now so they
don’t come back,” the trial court said, “All right. Matter submitted?” At that time,
Broadbent could have objected but he did not; instead, he agreed to submit the
matter.
Three, Broadbent asserts his public trial argument is actually “a claim
challenging the sufficiency of the evidence to support the closure order” and
“[c]laims of insufficient evidence are not waived by failing to object.” It is true that
the rule allowing a claim of insufficiency of the evidence to be raised for the first
time on appeal is not limited to judgments. (See People v. Butler (2003) 31 Cal.4th
1119, 1126 [challenge to an order for HIV testing].) As we have noted, however, our
Supreme Court has repeatedly held that the right to a public trial can be forfeited by
failure to object in the trial court, and we do not believe this principle can be avoided
simply by recasting the issue as one involving the sufficiency of the evidence to
support the trial court’s action.
“‘“No procedural principle is more familiar . . . than that a constitutional
right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases
by the failure to make timely assertion of the right before a tribunal having
jurisdiction to determine it.”’” (People v. Saunders (1993) 5 Cal.4th 580, 590.) “‘
“‘In the hurry of the trial many things may be, and are, overlooked which would
readily have been rectified had attention been called to them. The law casts upon the
party the duty of looking after his legal rights and of calling the judge’s attention to
any infringement of them. If any other rule were to obtain, the party would in most
cases be careful to be silent as to his objections until it would be too late to obviate
them, and the result would be that few judgments would stand the test of an
appeal.’”’” (Ibid.)
Had Broadbent objected in the trial court to the exclusion of his father and
brother on the ground it violated his constitutional right to a public trial, the trial
court would have been alerted to the necessity of determining to what extent its
13
exclusion order intruded on Broadbent’s rights and whether exclusion was
appropriate under the facts before it and the governing case law. Having failed to
alert the trial court of the need for this determination, Broadbent cannot raise this
issue for the first time on appeal as a basis for upsetting the result of the trial that
followed. Under well-established Supreme Court precedent, he forfeited this
argument by failing to raise it in the trial court.33
Respondent argues that Broadbent’s argument before this Court is procedurally barred.
The Court agrees. The California contemporaneous objection rule is “clear, consistently applied,
and well-established” where, as here, a party fails to make a proper objection to the admission of
evidence.34 The rule is therefore operative in the case at bar as an “adequate and independent”
state procedural bar.35 Moreover, the California rule is entirely consistent with federal law as
established by the United States Supreme Court, which also requires a timely objection to a
ruling even where a constitutional right is involved.36 Broadbent is procedurally barred from
bringing his third ground.
Ground 4: Gang Validation Test
As summarized by the California Court of Appeal, the testimony on the gang validation
test Broadbent objects to:
Detective Brown testified that “[t]he 10 criteria are a person admits their
membership in the gang, is tattooed with a gang logo, is in the company of other
33
Diaz, 2009 WL 3357924 at *3-5. Broadbent does not raise an ineffective assistance of
counsel claim before this Court.
34
Melendez v. Pliler, 288 F.3d 1120, 1124-25 (9th Cir. 2002).
35
See Collier v. Bayer, 408 F.3d 1279, 1283 (9th Cir. 2005).
36
Fed. R. Evid. 103(a)(1); see generally Yakus v. United States, 321 U.S. 414, 444 (1944)
(“No procedural principle is more familiar to this Court than that a constitutional right may be
forfeited in criminal as well as civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.”); Peretz v. United States, 501 U.S. 923,
936-37 (1991).
14
validated gang members, has been involved in gang related crimes, is named by two
or more members of their gang as a member of that gang, a photograph which
indicates and shows gang membership, county or jail correspondence that indicates
the gang membership, has been contacted in the field participating in gang related
crimes by law enforcement, has gang graffiti, and the individual has been contacted
wearing gang clothing.”37
Broadbent contends that this testimony constituted a prohibited “profile.” The California Court
of Appeal rejected Broadbent’s position:
Gang Validation Testimony
In his pretrial motion to limit the testimony of the prosecution’s gang expert,
Diaz identified four numbered areas in which he wanted the court “to place
reasonable and appropriate limits on the gang expert’s testimony.” He then stated
that “[f]urther bases for such requests are set forth below,” which was followed by
20 pages of argument. Amidst those 20 pages, under the fourth of six headings, Diaz
argued that “[t]he opinions of gang experts are inadmissible because they constitute
improper profile evidence,” and he asked the court to “limit the gang expert’s
opinions and testimony so that profile evidence is not proffered to the jury.”
In addressing Diaz’s motion, the trial court covered the four numbered areas
identified at the beginning of the motion and nothing else. At no time did either Diaz
or Broadbent address the “profile” argument buried in Diaz’s in limine motion or
secure a ruling from the trial court on that argument.
Thereafter, Detective Brown testified without objection about how Broadbent
and Diaz were “validated” by law enforcement as members of Ridezilla pursuant to
a list of 10 criteria developed by the Department of Justice and adopted by the
Sacramento Police Department.
On appeal, Broadbent contends Detective Brown’s gang validation testimony
was inadmissible profile evidence. There are multiple problems with this argument.
First, no one made it in the trial court. Although, as we have noted, Diaz buried in
his motion in limine an argument that “[t]he opinions of gang experts are
inadmissible because they constitute improper profile evidence,” that argument did
not specifically tie the claim of “profiling” to the issue of gang “validation.” Thus,
while Diaz asked the court to prohibit the gang expert from offering profile evidence,
Diaz never argued that the evidence of gang validation was profile evidence.
Accordingly, we cannot reach this argument on appeal. (See Evid.Code, § 353, subd.
(a).)
Second, even if we were to assume Diaz’s buried argument about
inadmissible profile evidence could have been understood as relating to evidence of
gang validation, neither Diaz nor Broadbent secured a ruling from the trial court on
37
Diaz, 2009 WL 3357924 at *14 n.10.
15
that argument. In his opening brief, Broadbent tries to suggest the court ruled on the
argument when it “ruled that the gang expert would be able to give gang validation
evidence.” The part of the transcript Broadbent cites, however, involved the trial
court’s ruling on two of the four numbered areas in which Diaz specifically asked the
court to limit the gang expert’s testimony, namely, his requests to prohibit testimony:
(1) “to whether the defendant actively participated in Ridezilla or any other named
alleged gang because that is unfounded, speculation and another impermissible
encroachment upon the jurors exclusive function,” and (2) “to what the primary
activities of Ridezilla members are because the expert has insufficient knowledge
upon which to base an opinion.” The court’s ruling on these arguments did not
include a ruling on the buried argument that the expert should be prohibited from
offering inadmissible profile evidence.
“A properly directed motion in limine may satisfy the requirements of
Evidence Code section 353 and preserve objections for appeal. [Citation.] However,
the proponent must secure an express ruling from the court.” (People v. Ramos
(1997) 15 Cal .4th 1133, 1171.) That did not happen here.
Finally, even if this argument were properly before us, we would reject it
because Detective Brown’s gang validation testimony was not improper profile
evidence. “A profile is a collection of conduct and characteristics commonly
displayed by those who commit a certain crime,” and “[p]rofile evidence is generally
inadmissible to prove guilt” because it is “‘inherently prejudicial’” due to “‘the
potential of including innocent people as well as the guilty’” within the profile.
(People v. Robbie (2001) 92 Cal.App.4th 1075, 1084-1085.) Thus, in Robbie the
appellate court concluded the trial court erred in admitting expert opinion testimony
offered to prove the defendant’s conduct was consistent with being a rapist. (Id. at
pp. 1077, 1081.)
Detective Brown’s testimony that Diaz and Broadbent satisfied a number of
the criteria law enforcement use to “validate” gang members was in no way similar
to evidence of a criminal profile, i.e ., that by their conduct they met the profile of
attempted murderers. Accordingly, even if defendants had objected to the gang
validation evidence on this basis, the trial court would not have erred in admitting the
evidence over their objection.38
As with his third ground, the failure of Broadbent to make a contemporaneous objection
to the challenged testimony is an adequate and independent state ground sufficient to
procedurally bar consideration of his claim in this Court. Broadbent is not entitled to relief under
his fourth ground.
38
Id. at *14-15.
16
Ground 5: Gang-related Hearsay Testimony
To prove the predicate offenses the prosecution relied on the testimony of a gang expert
who gave a factual narrative of two of the predicate offenses. Broadbent argues that, because the
gang expert was not a percipient witness to either incident, her testimony was necessarily
founded on hearsay thereby violating the Confrontation Clause. The California Court of Appeal
rejected Broadbent’s arguments, holding:
Broadbent contends Detective Brown’s hearsay testimony regarding the
predicate offenses violated his Sixth Amendment right to confrontation under
Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. In Crawford, “the
high court held that the confrontation clause of the Sixth Amendment to the federal
Constitution prohibits ‘admission of testimonial statements of . . . witness[es] who
did not appear at trial unless [the witness] was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.’” (People v. Romero
(2008) 44 Cal.4th 386, 421.)
We reject Broadbent’s Crawford argument at the outset because neither
defendant objected to Detective Brown’s testimony regarding the predicate offenses
on this ground (or any ground, for that matter) in the trial court. (See People v.
Morris (2008) 166 Cal.App.4th 363, 367 [Crawford objection not raised below is not
preserved for appeal].)
As we have noted, before trial, Diaz moved in limine to limit the testimony
of the prosecution’s gang expert. One of the limits Diaz requested was to prohibit
the expert from “comment[ing] on hearsay statements about [Diaz]’s association with
Ridezilla.” When this aspect of Diaz’s motion came up for discussion, his attorney
argued that “allowing that kind of hearsay evidence . . . [¶] violates [his] Sixth
Amendment right to a fair trial and to confront the witnesses against him.” The court
rejected that argument, implicitly concluding that hearsay statements on which an
expert relies to formulate an opinion are not subject to Crawford because the jury is
instructed that such statements are not to be considered for the truth of the matter
asserted.
Obviously, Diaz’s Crawford objection relating to hearsay statements about
his association with Ridezilla had nothing to do with any testimony Detective Brown
might offer regarding the predicate offenses necessary to establish a pattern of
criminal activity. Moreover, at no time either before or during Detective Brown’s
testimony about the predicate offenses did either Diaz or Broadbent assert a
17
Crawford objection—or any other objection for that matter—to that testimony. In
the absence of such an objection, the issue is forfeited.39
As with his third and fourth grounds, the failure of Broadbent to make a
contemporaneous objection to the challenged testimony is an adequate and independent state
ground sufficient to procedurally bar consideration of his claim in this Court. Broadbent is not
entitled to relief under his fifth ground.
C.
Merits
Ground 1: “Kill-zone” Instruction
In his first ground Broadbent challenges the following instruction:
CALCRIM No. 600—The “Kill Zone” Instruction
The court instructed the jury on attempted murder pursuant to CALCRIM No.
600, in relevant part as follows:
“The defendants are charged in Counts 1, 2 and 3 with attempted murder.
“To prove that the defendants are guilty of attempted murder, the People must
prove that:
“1. The defendants took at least one direct but ineffective step toward killing
another person; and
“2. The defendants intended to kill that person.
“[¶] . . . [¶]
“A person may intend to kill a specific victim or victims at the same time he
intends to kill anyone in a particular zone of harm or kill zone. In order to convict
a defendant of the attempted murder of Anthony Watson, Dorral Hicks or Tyke[y]mo
Harrison, the People must prove that the defendant intended to kill Anthony Watson,
Dorral Hicks or Tyke[y]mo Harrison, or intended to kill anyone within the kill zone.
If you have a reasonable doubt whether the defendant intended to kill Anthony
Watson, Dorral Hicks or Tyke[y]mo Harrison by harming everyone in the kill zone,
then you must find the defendant not guilty of the attempted murder of Anthony
Watson, Dorral Hicks or Tyke[y]mo Harrison.”40
39
Id. at *9.
40
Id. at *19-20.
18
Broadbent contends the kill zone paragraph of the instruction misstates the applicable
law, that it erroneously named the same three victims and primary targets and kill zone targets,
allowed the jury to convict him of attempted murder even if he was not shooting at anyone in
particular and there was no primary target at all, and contained an irrational permissive inference.
The California Court of Appeal rejected Broadbent’s arguments:
1. People v. Bland
The “kill zone” paragraph of CALCRIM No. 600 derives from People v.
Bland (2002) 28 Cal.4th 313. In Bland, the court explained that the doctrine of
transferred intent applies to the crime of murder but not to “an inchoate crime like
attempted murder” because “[s]omeone who in truth does not intend to kill a person
is not guilty of that person’s attempted murder even if the crime would have been
murder-due to transferred intent-if the person were killed. To be guilty of attempted
murder, the defendant must intend to kill the alleged victim, not someone else. The
defendant's mental state must be examined as to each alleged attempted murder
victim. Someone who intends to kill only one person and attempts unsuccessfully
to do so, is guilty of the attempted murder of the intended victim, but not of others.”
(Id . at pp. 317, 328.) The court went on to explain that “[t]he conclusion that
transferred intent does not apply to attempted murder still permits a person who
shoots at a group of people to be punished for the actions towards everyone in the
group even if that person primarily targeted only one of them . . .. [T]he person
might still be guilty of attempted murder of everyone in the group, although not on
a transferred intent theory . . .. [¶] . . . [A]lthough the intent to kill a primary target
does not transfer to a survivor, the fact the person desires to kill a particular target
does not preclude finding that the person also, concurrently, intended to kill others
within ... the ‘kill zone.’” (Id. at p. 329.) The court noted that “[t]his concurrent
intent theory is not a legal doctrine requiring special jury instructions, as is the
doctrine of transferred intent. Rather, it is simply a reasonable inference the jury may
draw in a given case: a primary intent to kill a specific target does not rule out a
concurrent intent to kill others.” (Id. at p. 331, fn. 6.)
2. Evidentiary Support For The “Kill Zone” Instruction
With this understanding of the “kill zone” or “concurrent intent” theory of
attempted murder in mind, we turn to defendants’ argument, beginning with Diaz’s.
Diaz contends the kill zone instruction was inappropriate here because “[t]he ‘kill
zone’ principle appears to consist of two different elements: 1) a primary target; and
2) a manner of assault reasonably designed to ensure the death of the primary target
by creating a lethal zone around the target, thus concurrently intending death to all
within the ‘kill zone’ in order to make sure the intended target is killed.” He asserts
that “[n]either of those elements is present” here. He contends, “There was no
evidence . . . that the bullets were intended to strike anyone in particular in the
19
vehicle; to the contrary, the evidence was that the shots were fired indiscriminately
at all occupants of the car.” Moreover, “the shooter did not . . . employ[] a manner
of assault, such as firing over fifty rounds of high-powered ammunition, that would
result in the death of the primary target and those close by.”
The People contend the evidence supported an inference that all three named
victims were Broadbent’s primary targets and that “the instruction gave the jury the
opportunity to find that either Anthony, Dorral, or Tykeymo, or all of them, were the
primary targets.” The People also contend that the amount of “firepower” is not
dispositive of whether a kill zone was created or whether the kill zone instruction is
warranted in a particular case.
We agree with the People on both points. Where (as here) a person fires,
from close range, six to eight shots from a firearm at an automobile that more than
one person is in (or getting into), there is a sufficient evidentiary basis to conclude
a “kill zone” has been created because, under these facts, the shooter could harbor the
intent to kill everyone within the automobile (or at least as many as he can). Thus,
the “manner of assault” Broadbent employed justified a “kill zone” instruction.
Additionally, on the facts of this case it was for the jury to decide whether
Broadbent had one or more primary targets within the “kill zone.” There was
evidence that Harrison, Dorral, and Watson left the car and met Diaz in the street,
while Dorrate and Gaut remained by the car. From this evidence, the jury could have
concluded all three of the victims who confronted Diaz, or some combination of
them, were Broadbent’s primary targets. More importantly, it was not critical to the
application of the “kill zone” instruction that the jury identify one or more primary
targets. If the jury, applying the “kill zone” instruction, found that Broadbent
intended to kill everyone inside (or getting into) the car, then the jury necessarily
found that Broadbent intended to kill each of the three victims, whether any of them
was the primary target. (See People v. Stone (2009) 46 Cal.4th 131, 140 [“a person
who intends to kill can be guilty of attempted murder even if the person has no
specific target in mind. An indiscriminate would-be killer is just as culpable as one
who targets a specific person”].)
In summary, Diaz has failed to show any error in the giving of the “kill zone”
instruction. Accordingly, we turn to Broadbent’s arguments.
3. Elimination Of Intent To Kill
Broadbent first contends “CALCRIM No. 600 misstates the applicable law
by describing the ‘kill zone’ theory [a]s an alternative way to satisfy the mental
element of the offense [of attempted murder] that can be used even if the jury cannot
find a specific intent to kill every named victim.” Broadbent premises this argument
on the use of the word “or” in the instruction, where (in this case) the instruction told
the jury, “In order to convict a defendant of the attempted murder of Anthony
Watson, Dorral Hicks or Tyke[y]mo Harrison, the People must prove that the
defendant intended to kill Anthony Watson, Dorral Hicks or Tyke[y]mo Harrison, or
intended to kill anyone within the kill zone.” (Italics added.)
Contrary to Broadbent's argument, as given here CALCRIM No. 600 did not
tell the jury “an actual specific intent to kill the victim is not required if the kill zone
20
theory applies.” First, the instruction told the jury that to prove defendants were
guilty of attempted murder, the People had to prove that defendants took a direct step
toward killing another person and “intended to kill that person.” (Italics added.) The
“kill zone” portion of the instruction then informed the jury that “[a] person may
intend to kill a specific victim or victims at the same time he intends to kill anyone
in a particular zone of harm or kill zone.” (Italics added.) The instruction explained
that the People had to prove defendants intended to kill Watson, Dorral, or Harrison,
“or .. . anyone in the kill zone.” Finally, the instruction informed the jury that it had
to acquit if it had a reasonable doubt whether defendant intended to kill Watson,
Dorral, or Harrison “by harming everyone in the kill zone.”
Taken as a whole, the instruction did not substitute the concept of a “kill
zone” for the requirement of a specific intent to kill the named victims. Rather, the
instruction properly conveyed the idea that if defendants intended to kill everyone in,
or getting into, the car-which was plainly the “kill zone” in this case—then they
necessarily intended to kill the named victims, who were all shot while in that “kill
zone.” As given here, CALCRIM No. 600 did not misstate the law.
4. Primary Target Requirement
Broadbent next argues that a “kill zone” instruction requires “[t]he
identification of a primary target,” and here “[i]t was error to name the same three
individuals as primary targets and kill zone targets.” Thus, in his view, “the [kill
zone] instruction was both erroneously worded and inapplicable to the facts of this
case.”
We have largely disposed of this argument already in rejecting Diaz's
challenge to the “kill zone” instruction. On the facts of this case, it was for the jury
to decide whether Broadbent had one or more primary targets within the “kill zone”
of the car, and if he did, who those targets were. Broadbent points to no authority to
support his suggestion that the jury cannot be allowed to decide what person or
persons were the primary target, assuming there was one. Moreover, as we have
concluded already, identification of a primary target is not critical to application of
the “kill zone” theory. What is central to the idea of a “kill zone” is the use of a
means of killing that is directed at an area where more than one person is present and
that has the ability to kill more than one person. In such a situation, a jury may infer
that the defendant intended to kill everyone—or at least as many persons as he
possibly could—within that “kill zone” and thus may find the defendant guilty of as
many counts of attempted murder as there were persons within the “kill zone” that
the defendant tried to kill.
Broadbent complains that if no primary target is required, then the “kill zone”
theory “would apply whenever someone shoots indiscriminately into a group,” which
would be error “because ‘an attempted murder is not committed as to all persons in
a group simply because a gunshot is fired indiscriminately at them.’” (People v.
Anzalone (2006) 141 Cal.App.4th 380, 392.) This assertion may be true where a
gunshot is fired. (See People v. Stone, supra, 46 Cal.4th at p. 138 [concluding “[t]he
kill zone theory simply does not fit” where the defendant was charged with one count
of attempted murder for firing a single gunshot at a group].) But it is not true
21
where—as here—multiple gunshots are fired and multiple counts of attempted
murder are charged.
Addressing the “kill zone” theory, the Court of Appeal in Anzalone concluded
that “to be found guilty of attempted murder, the defendant must either have intended
to kill a particular individual or individuals or the nature of his attack must be such
that it is reasonable to infer that the defendant intended to kill everyone in a particular
location as the means to some other end, e.g., killing some particular person.”
(People v. Anzalone, supra, 141 Cal.App.4th at p. 393.) More recently, however, the
Supreme Court explained that “[a]lthough a primary target often exists and can be
identified, one is not required.” (People v. Stone, supra, 46 Cal.4th at p. 140.) Thus
it follows that a person can be found guilty of attempted murder if the nature of his
attack is such that it is reasonable to infer he intended to kill everyone in a particular
location, whether there was some other end involved. And under the “kill zone”
theory, there can be as many charges of attempted murder as there are potential
victims. Here, Broadbent fired six to eight shots into a car containing (or about to
contain) five persons; he and Diaz were subsequently charged with three counts of
attempted murder—one for each person struck by a bullet. Under these
circumstances, the jury was properly instructed on the “kill zone” theory, even if
there was no primary target.
5. Irrational Permissive Inference
Broadbent next argues that “[t]he ‘kill zone’ portion of CALCRIM No. 600
erroneously eliminated the need to find a specific intent to kill each named victim by
giving the jury the option to apply an irrational permissive inference as an alternative
way to find an implied intent to kill others, based on their presence in the so-called
‘kill zone.’” In Broadbent’s view, if the jury could not find an actual intent to kill the
named victim, the instruction nonetheless allowed the jury to “infer an implied intent
to kill based on” “where the victims are situated.” Broadbent contends the
instruction thus violates due process.
We have concluded already that, taken as a whole, the attempted murder
instruction here did not offer the concept of a “kill zone” as an alternative to the
requirement of a specific intent to kill the named victims. Rather, the instruction
properly conveyed the idea that if defendants intended to kill everyone in the “kill
zone” of the car, then they necessarily intended to kill the named victims, who were
in that zone.
Moreover, “A permissive inference violates the Due Process Clause only if
the suggested conclusion is not one that reason and common sense justify in light of
the proven facts before the jury.” (People v. Mendoza (2000) 24 Cal.4th 130, 180.)
CALCRIM No. 600 does not run afoul of this principle because the instruction does
not tell the jury that it can find an implied intent to kill based solely on the victim’s
presence in an “imaginary area” known as the “kill zone.” Rather, the instruction
properly tells the jury (in the words of the Supreme Court in Bland ) that “a primary
intent to kill a specific target does not rule out a concurrent intent to kill others.”
(People v. Bland, supra, 28 Cal.4th at p. 331, fn. 6.) Whether the jury decides to find
a concurrent intent to kill multiple victims located within a given “zone” is
22
something left to the jury based on all of the evidence before it. Nothing about the
“kill zone” portion of CALCRIM No. 600 permits or encourages the jury to draw an
irrational inference in this regard, and therefore the instruction does not violate due
process.41
It is a fundamental precept of dual federalism that the States possess primary authority for
defining and enforcing the criminal law.42 Consequently, the California Court of Appeal having
held that the challenged instruction correctly stated state law, this ends the inquiry to the extent
that Broadbent argues that the “kill-zone” instruction misstates the law.43
A challenged instruction violates the federal constitution if there is a “reasonable
likelihood that the jury has applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.”44 The question is whether the instruction,
when read in the context of the jury charges as a whole, is sufficiently erroneous to violate the
Fourteenth Amendment.45 This Court must also assume in the absence of evidence to the
contrary that the jury followed those instructions.46 It is well established that not only must the
challenged instruction be erroneous but it must violate some constitutional right and may not be
41
Diaz, 2009 WL 3357924 at *20-24.
42
See Engle v. Isaac, 456 U.S. 107, 128 (1982).
43
Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam) (holding that it is of no
federal concern whether state law was correctly applied); see Waddington v. Sarausad, 555 U.S.
179, 189, n.5 (2009) (“The Washington Supreme Court expressly held that the jury instruction
correctly set forth state law, . . . and we have repeatedly held that ‘it is not the province of a
federal habeas court to re-examine state-court determinations on state-law questions.’” (quoting
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991))).
44
Boyde v. California, 494 U.S. 370, 380 (1990).
45
Francis v. Franklin, 471 U.S. 307, 309 (1985).
46
Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206
(1987) (noting the “almost invariable assumption of the law that jurors follow their
instructions”); see Franklin, 471 U.S. at 323-24 & n.9 (discussing the subject in depth).
23
judged in artificial isolation, but must be considered in the context of the instructions as a whole
and the trial record.47 This Court must also bear in mind that the Supreme Court has admonished
that the inquiry is whether there is a reasonable likelihood that the jury applied the challenged
instruction in a way that violates the constitution and that the category of infractions that violate
“fundamental fairness” is very narrowly drawn.48 “Beyond the specific guarantees enumerated in
the Bill of Rights, the Due Process clause has limited operation.”49 In this case, the California
Court of Appeal assiduously adhered to those principles in rejecting Broadbent’s contentions.
Broadbent’s claim that CALCRIM 600 permitted the jury to impermissibly infer intent to
kill by circular reasoning suffers the same infirmity. A permissive inference requires a rational
connection between the basic facts that the prosecution proved and the ultimate fact presumed,
and the latter is more likely than not to flow from the former.50 A permissive inference leaves the
trier of fact free to credit or reject the inference and the party challenging it must demonstrate its
invalidity as applied to him.51 This Court cannot say that it was irrational to infer that in firing
six to eight shots at close range at a vehicle containing multiple occupants the shooter intended to
kill all of those persons who were logically within the lethal zone of that gunfire.52
Consequently, this Court cannot say that the decision of the California Court of Appeal
was “contrary to, or involved an unreasonable application of, clearly established Federal law, as
47
McGuire, 502 U.S. at 72.
48
Id. at 72-73.
49
Id.
50
See County Court of Ulster County, N. Y. v. Allen, 442 U.S. 140, 157 (1979).
51
Id.
52
See Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).
24
determined by the Supreme Court of the United States” at the time the state court rendered its
decision or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”53 Broadbent is not entitled to relief under his first
ground.
Ground 2: Ineffective Assistance of Counsel
Broadbent argues that his trial counsel was ineffective because he failed to object to what
Broadbent characterizes as the prosecution’s erroneous argument in closing summation on the
application of the concurrent intent theory of the kill zone. The California Court of Appeal
rejected this argument as well:
6. Ineffective Assistance Of Counsel
Finally, we turn to Broadbent’s claim of ineffective assistance of counsel
relating to the prosecutor’s argument about the “kill zone” theory. At first, the
prosecutor argued, “I’ll submit to you if you stand within a few feet of a car and you
empty a gun and you fill that car up with lead and you empty your gun, you are trying
to kill everyone in it.” But then the prosecutor continued, addressing “something that
we call the kill zone.” On that, she argued as follows:
“This is where—this exists and this is the law that is often applied when a
person intends to kill one person and he’s aware that people are in close proximity
to his intended target, they are so close that the law is and you determine that they
have concurrent intent. That’s what it is. “It doesn’t matter if you feel that Jam[u]al
Broadbent intended to kill everyone individually in that car. Maybe he intended only
to kill [Harrison] or Dorral or [Watson]. The other shots followed. Concurrent
intent. He’s charged with three counts, not the full six. He could have been charged
with the six. Clearly the same intent was there. Concurrent intent on the other
victims. You’ll see it. You’ll read it. You can talk about it.
“You’ll see this whenever you have a crowd of people, somebody drives by,
does a drive-by, shoots into a crowd of folks intending to kill one guy, knows the
danger involved, find concurrent intent at the same time he tries to kill that person.”
As Broadbent argues, the prosecutor’s argument erroneously suggested that
defendants did not have to intend to kill all three victims to be convicted of
attempting to murder all three of them. Broadbent asserts that his trial attorney's
failure to object to the prosecutor’s erroneous argument, and failure to “disabuse the
53
28 U.S.C. § 2254(d); see also Andrade, 538 U.S. at 70-75 (explaining this standard).
25
jury of the prosecutor’s erroneous argument during the defense summation,”
constituted ineffective assistance of counsel.
“To prevail on a claim of ineffective assistance of counsel, a defendant must
show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense . . .. Prejudice exists where there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
In asserting that his trial attorney’s failure to object to the prosecutor’s
erroneous argument regarding the “kill zone” theory prejudiced him, Broadbent does
not attempt to frame an argument rooted in the facts and circumstances of this case.
Instead, he simply offers a quote from Anzalone, and concludes, “The same is true
here.” That does not suffice.
In Anzalone, the defendant was charged with four counts of attempted murder
for shooting twice at a group of four men standing near a car. (People v. Anzalone,
supra, 141 Cal.App.4th at pp. 383-385.) Unlike here, the trial court did not instruct
on the “kill zone” theory of concurrent intent, but the prosecutor argued that theory,
telling the jury-erroneously-that “‘[a]nytime someone is within the zone of danger,
whether it be one, two, three or twenty people, somebody indiscriminately shoots
toward a crowd of people, everything in that zone of danger qualifies . . .. That is
how we get to the four counts of attempted murder.’” (Id. at pp. 390-391.)
The Court of Appeal noted that “[t]he prosecutor’s argument incorrectly
suggest[ed] that a defendant may be found guilty of the attempted murder of someone
he does not intend to kill simply because the victim is in some undefined zone of
danger.” (People v. Anzalone, supra, 141 Cal.App.4th at pp. 392-393.) The court
then concluded that trial counsel’s failure to object to the erroneous argument was
prejudicial because “[t]aking the court’s proper instructions and the prosecutor’s
erroneous argument together, the jury would have reasonably understood that to find
attempted murder it was required to find appellant intended to kill at least one of the
men standing by the car; but once it did so, it could find appellant guilty of three
additional counts of attempted murder simply because the other victims were in the
‘zone of danger.’” (Id. at p. 396.)
In arguing that what was true in Anzalone “is true here,” Broadbent fails to
recognize that the trial court here, unlike the trial court in Anzalone, did instruct the
jury on the “kill zone” theory of concurrent intent. Moreover, as detailed above, we
have found no error in the court’s instruction on that subject because the instruction
properly conveyed the idea that if defendants intended to kill everyone in the “kill
zone” of the car, then they necessarily intended to kill the named victims, who were
in that zone. Thus, this case is not comparable to Anzalone, where the only guidance
the jury received on the “kill zone” theory was the prosecutor’s erroneous argument.
There were other material differences in the attempted murder instructions in
the two cases also. Here, unlike in Anzalone (see People v. Anzalone, supra, 141
Cal.App.4th at p. 390), the trial court instructed the jury that to prove defendants
were guilty of attempted murder, the People had to prove defendants took a direct
step toward killing another person and “intended to kill that person.” (Italics added.)
26
“Absent evidence to the contrary, we must assume that the jury followed the court’s
instructions.” (People v. Talhelm (2000) 85 Cal.App.4th 400, 409.) Indeed, “The
crucial assumption underlying our constitutional system of trial by jury is that jurors
generally understand and faithfully follow instructions.” (People v. Mickey (1991)
54 Cal.3d 612, 689, fn. 17.)
Here, given that the trial court’s “kill zone” instruction—which the jury
received after the prosecutor’s erroneous argument—was correct, and given the
unrebutted assumption that the jury understood and followed the instruction (instead
of the erroneous argument that preceded it), we see no reasonable probability the
result would have been different if Broadbent’s trial attorney had objected to the
prosecutor’s argument. Accordingly, his ineffective assistance of counsel claim
fails.54
Under Strickland, to demonstrate ineffective assistance of counsel, Broadbent must show
both that his counsel’s performance was deficient and that the deficient performance prejudiced
his defense.55 A deficient performance is one in which “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.”56 Petitioner
must show that defense counsel’s representation was not within the range of competence
demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for
counsel’s ineffectiveness, the result would have been different.57 An analysis that focuses “solely
on mere outcome determination, without attention to whether the result of the proceeding was
fundamentally unfair or unreliable, is defective.”58 In applying this latter standard, the Supreme
54
Diaz, 2009 WL 3357924 at *24-26.
55
Strickland v. Washington, 466 U.S. 668, 687 (1984).
56
Id.
57
Hill v. Lockhart, 474 U.S. 52, 57 (1985).
58
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); see Strickland, 466 U.S. at 687; see
also Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (“The essence of an ineffectiveassistance claim is that counsel’s unprofessional errors so upset the adversarial balance between
defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”
(citing Strickland, 466 U.S. at 687)); United States v. Cronic, 466 U.S. 648, 656 (1984) (“The
right to the effective assistance of counsel is recognized not for its own sake, but because of the
27
Court has explained that, if the outcome might have been different as a result of a legal error, the
defendant has established prejudice and is entitled to relief.59 An ineffective assistance of
counsel claim should be denied if the petitioner fails to make a sufficient showing under either
one of the Strickland prongs.60
As the California Court of Appeal noted, the jury was instructed correctly and it is
presumed that the jury follows its instructions.61 It is also recognized that, as a general principle,
arguments of counsel generally carry less weight with the jury than do instructions from the
court.62 In light of these two principles, this Court cannot say that the determination by the
California Court of Appeal that Broadbent was not prejudiced by the failure of his trial counsel to
object to the prosecutor’s erroneous argument was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”63 Nor, viewing the matter through the doublydeferential lens of Mirzayance-Richter, can this Court find that the state court unreasonably
effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged
conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not
implicated.” (citations omitted)).
59
See Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v. United States, 531
U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393.
60
See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and
need not address both prongs if the defendant fails on one).
61
Weeks, 528 U.S. at 234; Marsh, 481 U.S. at 206; see Franklin, 471 U.S. at 323-24 &
62
See Boyde v. California, 494 U.S. 370, 384-85 (1990).
63
28 U.S.C. § 2254(d).
n.9.
28
applied the correct legal principle to the facts of the Petitioner’s case within the scope of
Andrade-Williams-Landrigan-Richter; i.e., the state court decision was not more than incorrect
or erroneous, its application of clearly established federal law was not objectively unreasonable.
Broadbent has failed to establish that counsel committed any error that was so serious that
counsel was not functioning as the counsel guaranteed by the Sixth Amendment or that his
defense was prejudiced, as required by Strickland-Hill.
Ground 6: Insufficiency of the Evidence (Special Allegations)
Broadbent contends that the there was insufficient evidence to support the two predicate
offenses necessary for the gang-related enhancements. The California Court of Appeal
disagreed, holding:
Predicate Offenses
Broadbent offers several arguments on appeal relating to the predicate
offenses on which the prosecution relied to qualify Ridezilla as a criminal street gang
within the meaning of Penal Code section 186.22. We address those arguments in
turn.
1. Sufficiency Of The Evidence
Broadbent contends the evidence was insufficient to prove the predicate
offenses because the only evidence of the offenses was hearsay testimony offered by
Detective Brown, which the trial court had already ruled would not be admitted for
the truth of the matters asserted. We disagree.
Under subdivision (b)(1) of section 186.22, a person “who is convicted of a
felony committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members” is subject to an additional term of imprisonment.
For purposes of this sentence enhancement provision, a “criminal street gang” is “any
ongoing organization, association, or group of three or more persons, whether formal
or informal, having as one of its primary activities the commission of one or more of
the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
inclusive, of subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or have engaged
in a pattern of criminal gang activity.” (§ 186.22, subd. (f).) A “‘pattern of criminal
gang activity’ means the commission of, attempted commission of, conspiracy to
commit, or solicitation of, sustained juvenile petition for, or conviction of two or
more of [certain enumerated] offenses . . ..” (Id., subd. (e).) These offenses are
29
commonly referred to as “predicate offenses.” (See People v. Zermeno (1999) 21
Cal.4th 927, 931.)
“It is incumbent upon the prosecution in seeking an enhancement under
section 186.22, subdivision (b), to prove through competent evidence the elements
of a ‘criminal street gang’ as set out in the statute, including the offenses necessary
to satisfy the pattern requirement.” (In re Nathaniel C. (1991) 228 Cal.App.3d 990,
1004.)
With this understanding of the predicate offense requirement, we turn to the
procedural background of Broadbent’s argument.
Before trial, Diaz filed a written motion in limine to limit the testimony of the
prosecution’s gang expert. Among other things, Diaz asserted “[t]he gang expert
should not be allowed to comment on hearsay statements about [Diaz]’s association
with Ridezilla.” He also asserted that the expert’s opinion about the primary activity
of Ridezilla was inadmissible “because it is hearsay and lacks foundation.” Diaz did
not assert a hearsay objection to any potential testimony regarding the predicate
offenses to be used to establish a pattern of criminal activity by Ridezilla. Instead,
Diaz argued only that “[t]his element must be established by ‘substantial evidence.’”
In addressing Diaz’s motion in limine, the court and counsel first addressed
Diaz’s assertion that the gang expert “should not be allowed to testify to [Diaz]’s
state of mind or give an opinion that [he] had the intent to promote or assist the gang
because that is an impermissible encroachment upon the jury’s exclusive function.”
Diaz’s attorney conceded she did not think the prosecutor “would try to elicit an
opinion on an ultimate fact from a gang expert,” but she argued “that having an
expert testify Mr. Diaz is—is a validated gang member, this is what his gang does,
this particular crime was gang related, is tantamount to the same thing.” In
discussing this argument, the court observed generally that “the facts [to] which the
[gang expert] testifies in formulating that opinion are not being offered for the truth
of the matter asserted. They’re being offered to show the basis on which the expert
is relying.” Ultimately, the court ruled the gang expert would “be allowed to give an
opinion as to whether or not these defendants in this particular instance acted for the
benefit of, and association with or at the direction of a criminal street gang.”
Later, in discussing Diaz's assertion that the gang expert should not be
allowed to comment on hearsay statements about Diaz’s association with Ridezilla,
Broadbent’s attorney argued that if the court allowed such testimony, it should
“admonish the jury that they’re not to take any of it as proof of the truth of the
matter.” The court ruled that such testimony would be allowed because “[t]he case
law makes clear that experts can rely on hearsay statements . . . in formulating their
opinion.”
During these pretrial discussions of Diaz’s motion in limine, there was no
discussion about any potential testimony regarding the predicate offenses to be used
to establish a pattern of criminal activity.
At the end of the prosecutor’s voir dire of Detective Brown to establish her
as a gang expert, Diaz’s attorney reiterated her objection to any opinion testimony
based on hearsay. When the court pointed out that “the case law recognize[s] that
30
[hearsay] is the type of evidence that experts normally rely upon” and the evidence
is admissible because “it's being offered to show the—expert’s opinion and basis of
that opinion,” Diaz’s attorney asked if the court would “consider giving an
admonition to the jury.” The court noted that it had, in some cases, instructed the
jury on the use of hearsay evidence “consistent with the CALCRIM” “prior to the
proffered testimony,” and in some cases the attorneys had “fashion[ed] instructions
that essentially allow the jurors to focus on the evidence that is—is subject to the
expert’s opinion.” The court then observed that in some cases the expert may testify
to “things [that] relate to the nature of the offense,” and the court specifically
observed that “Detective Brown was also an investigating officer in this case so that
it—she testifies to it as a per[cipi]ent witness.” The court explained that sometimes
the attorneys fashioned custom instructions “pinpoint[ing] what evidence they're
referring to” because some evidence may be admitted for multiple purposes.
Diaz’s attorney declined to prepare such an instruction and instead asked the
court to “just read the general instruction.” Subsequently, before Detective Brown
resumed testifying, the court instructed the jury with CALCRIM No. 1403 on the
limited use of evidence of gang activity. This instruction did not address the use of
hearsay evidence
Thereafter, in the course of her testimony, Detective Brown testified without
objection to two predicate offenses involving Ridezilla members. First, she testified
about an incident in which a female member of the Oak Park Bloods got into an
altercation with a member of a rival Crips gang during which she shot the rival gang
member “because the Ridezilla gang members told her to do so.” Second, she
testified about an incident in which eight Ridezilla members shot up a house, and one
of the gang members (David Perkins) was struck and killed by a bullet fired by one
of his fellow gang members. She testified that she personally worked on both cases
and that she was involved in interviewing the female gang member involved in the
first incident.
In instructing the jury at the end of the case, the court gave CALCRIM No.
1403 (the limited use of evidence of gang activity) again. The court also gave
CALCRIM No. 360, which told the jury, “Wendy Brown testified that in reaching her
conclusions as an expert witness she considered statements made by others. You
may consider those statements only to evaluate the expert’s opinion. Do not consider
those statements as proof that the information contained in the statements is true.”
We now turn back to Broadbent’s argument. He contends the prosecutor
“failed to present any competent evidence to establish” the two predicate offenses
because “[n]o percipient witness to either crime testified.” Instead, the prosecutor
“relied solely on the testimony of the gang expert,” but “[b]ecause she was not a
percipient witness to either offense, [her] testimony as to the facts of each incident
was necessarily hearsay.” “The jury was specifically instructed that hearsay
testimony given by the expert . . . cannot be considered for the truth of the matter
asserted.” Because “[j]urors are presumed to follow limiting instructions,” Detective
Brown’s “hearsay accounts of how the predicate offenses occurred cannot supply
substantial evidence” of the commission of those offenses.
31
Broadbent’s argument fails for one simple reason: Detective Brown’s
testimony about the predicate offenses did not fall within the limiting provisions of
CALCRIM No. 360. By its terms, that instruction applied only to “statements made
by others” that Detective Brown testified she considered “in reaching her conclusions
as an expert witness.” Thus, for example, to the extent Detective Brown considered
statements made by others in reaching her opinion that the attempted murders of
Harrison, Watson, and Dorral were committed for the benefit of a criminal street
gang, CALCRIM No. 360 told the jurors they were “not [to] consider those
statements as proof that the information contained in the statements is true.” But in
testifying to the occurrence of the two predicate offenses, Detective Brown was not
expressing any opinion or conclusion she reached as an expert witness. Rather, she
was testifying to facts she became aware of as an investigating officer of both the
predicate crimes. True, even as an investigating officer she may not have had
personal knowledge of the facts of the incidents and may have come by her
knowledge of those facts only through statements made by others, but this only made
her testimony regarding the predicate offenses subject to a hearsay/lack of personal
knowledge objection that defendants never made; it did not make her testimony
regarding those offenses subject to the limiting effects of CALCRIM No. 360, which
applied only to her testimony as an expert witness.
Because the limiting instruction did not apply to Detective Brown’s testimony
about the predicate offenses, that testimony could and did constitute substantial
evidence of those offenses, and Broadbent’s argument to the contrary is without
merit.64
Reduced to its essence, Broadbent’s entire argument is that the California Court of
Appeal erred in its determination that the evidence of the predicate offenses, upon which the
gang-related enhancements rested in part, was properly considered.65 Unfortunately for
Broadbent, he has not presented a question of constitutional dimension. Whether or not the
instruction limiting consideration of the hearsay testimony given by the expert applied is strictly
a question of state law beyond the purview of this Court.66 To the extent that Broadbent argues
64
Diaz, 2009 WL 3357924 at *5-8.
65
Broadbent does not argue that, if the challenged testimony was properly considered it
did not constitute sufficient evidence of the necessary predicate offenses.
66
Cooke, 130 S. Ct. at 863 (holding that it is of no federal concern whether state law was
correctly applied).
32
that consideration of the hearsay evidence violated the Confrontation Clause under the ruling in
Crawford, as discussed above with respect to his fifth ground, because he did not properly object
Broadbent is procedurally barred from asserting that claim before this Court. Broadbent is not
entitled to relief under his sixth ground.
Ground 7: Failure to Strike Non-responsive Answers
Broadbent contends that the failure of the trial court to strike non-responsive answers
given to questions propounded to a prosecution witness by counsel for Broadbent on crossexamination in violation of an in limine ruling, violated his due process rights to a fair trial.
Broadbent also claims that the failure of the prosecutor to correct the non-responsive answer
amounted to prosecutorial misconduct. The California Court of Appeal agreeed that the
responses should have been stricken but declined to rule on the prosecutorial misconduct claim
as unnecessary and held that the error was nonetheless harmless.
3. Nonresponsive Answers
During the discussion of in limine motions, Diaz’s attorney told the court that
the prosecutor might use the Perkins incident as one of the predicate offenses to
establish a pattern of criminal activity by Ridezilla, and she had “intended to make”
a motion under Evidence Code section 352 to exclude any “identification of either
defendant as having been there,” but the prosecutor had told her she did “not intend
to introduce evidence to the extent she has it—that Mr. Diaz was present at the
Perkins incident,” so Diaz’s attorney was “satisfied about that.” The prosecutor
confirmed she was “not going to be getting into the fact that Mr. Diaz and Mr.
Broadbent were named as two of the shooters within the—the eight or nine people
[who] were out on the street on the day that David Perkins died” or “the fact
that—that Mr. Diaz was implicated by his co-defendant in that particular shooting.”
During his cross-examination of Detective Brown, Broadbent’s attorney
asked her certain hypothetical questions about whether U.S.C. (University of
Southern California) alumni could be considered a criminal street gang. Later, during
recross-examination, Broadbent’s attorney questioned her about the use of the
Perkins shooting to establish that Ridezilla is a criminal street gang. He then
returned to his “hypothetical about U.S.C. alumni” being “a criminal street gang” and
asked her if she thought that was “ridiculous.” Detective Brown responded, “The
ridiculous part about it is that . . . we’ve already established the fact that they are not
33
a criminal street gang. [¶] If you want to tell us about the crimes that they've
committed, that’s fine, but it doesn’t make them a street gang.” The following
exchange then occurred:
“Q Well, when you testified to these two incidents that members of the oak
or the Ridezilla group committed, the purpose of that was to show that because these
crimes were committed by other members it follows, therefore, that Ridezilla is a
criminal street gang. In other words, the purpose is defined by the conduct of its
members.
“A Yes. The purpose is defined by the conduct of its members, and its
members are the people who committed these acts, including your client.
“Q Well, to establish a predicate offense under this law you don’t have to
establish that the people who are on trial in a given case had anything to do with
those crimes; do you?
“A You don’t have to, but in this circumstances it is the case.
“Q Okay. But you don’t have to?” (Italics added.)
At this point, Diaz’s attorney asked to approach, but instead Broadbent’s
attorney withdrew the question. Shortly thereafter, Broadbent’s attorney concluded
his examination, and the prosecutor said she was “going to need to approach the
bench.”
Outside the presence of the jury, the prosecutor argued that the questions by
Broadbent’s attorney had “opened” “the door” “for a thorough answer [that] would
reveal that Mr. Broadbent according to this expert’s opinion was involved in the . . .
Perkins shootout.” Broadbent’s attorney asserted that he intended “to establish the
parameters of the law, particularly the parameters of the predicate offenses, and not
to assert the innocence of Mr. Broadbent regarding the particular incident.” The
prosecutor argued that “asking the question the way it was asked, both questions,
particularly the last question, which is a follow-up of the first question, suggests and
places at least his client in a false light given what he knows.” Broadbent’s attorney
ultimately said, “Frankly, I think it was nonresponsive, and I would move to strike
it, but whether it stays or doesn’t stay, that’s—I think that should be the end of it.”
The court concluded that “the question could have been interpreted in more than one
way, and the manner in which Detective Brown interpreted the question was actually
the appropriate way to address it, . . . and . . . the question and answer [are] going to
stand.” Diaz’s attorney requested that “the last question and answer be stricken from
the record” because Detective Brown’s answer to that question implicated Diaz. In
response, the prosecutor continued to assert that she should be allowed “to get into
the prior gang crimes of Mr. Broadbent,” and she asserted that by doing so “it would
clean up” the implication relating to Diaz. The court concluded the prosecutor did
not “need to do that” and the answer did not need to be stricken either “because . . .
the answer that was given is the correct statement of the law.” The court later
reiterated its belief that Detective Brown’s responses “were totally correct” and “what
occurred was exactly what should have occurred.” The court decided “to leave the
question and answer as is” because “[w]e know at least there is some evidence that
[Detective Brown was] speaking truthfully based on the question that was posed, that
34
it wasn’t true in this case, because arguably the defendants do have some
involvement in at least one of the predicate offenses.”
On appeal, Broadbent contends the portions of Detective Brown’s answers
in which she tied Broadbent to the predicate offenses (italicized above) should have
been stricken as nonresponsive. (See People v. Bell (2007) 40 Cal.4th 582, 611, fn.
11 [“A nonresponsive answer is properly the subject of a motion to strike”].)
The People assert there was no error because “Broadbent’s defense counsel
did not unequivocally request that Detective Brown’s answers be stricken.” We
disagree. Broadbent’s attorney asserted the answer was “nonresponsive” and he
“would move to strike it,” and the trial court plainly understood this was a motion to
strike because the court expressly ruled that “the question and answer [are] going to
stand,” thereby denying the motion. Furthermore, Diaz’s attorney thereafter made
an unequivocal motion to strike, which the trial court also denied.
In the absence of any argument by the People that Detective Brown’s answers
were responsive to the questions from Broadbent’s attorney, we agree with Broadbent
that the trial court should have stricken the nonresponsive portions of those answers.
Detective Brown’s assertion in response to the first question that Broadbent (“your
client”) was one of “the people who committed these acts” was not responsive to
anything in the question, but was a gratuitous addition. Detective Brown may have
believed Broadbent’s attorney was attempting to insinuate by his question that
Broadbent was not involved in the Perkins incident and may have wanted to counter
that insinuation, but it was not her place to do so, particularly when the prosecutor
had advised her “that she should present the predicate [offense] in a clean manner
omitting reference that [defendants] were . . . two of the . . . six shooters out in the
street in addition to Mr. Perkins.” The same conclusion applies to the second
question. While Detective Brown may have felt Broadbent’s attorney was trying to
insinuate that Broadbent was not involved in the Perkins incident, his question asked
only for her to identify what is required generally to establish a predicate offense, and
her additional statement, “but in this circumstance it is the case,” was nonresponsive
to that question
Broadbent contends he was prejudiced by the trial court’s failure to strike the
nonresponsive portions of Detective Brown’s answers because “the evidence against
[him] was weak in terms of eyewitness identification and provocation” and “[t]he
predicate offenses were inflammatory and prejudicial.” To establish prejudice,
Broadbent must persuade us there was a reasonable probability he would have
obtained a more favorable result in the absence of the error. (People v. Watson
(1956) 46 Cal.2d 818, 836.) He has not done so. First, we do not share Broadbent’s
assessment of the evidence against him as “weak.” Second, no matter how close the
case may have been, we do not find a reasonable probability that the isolated
responses from Detective Brown suggesting Broadbent was involved in at least one
of the predicate offenses made a difference to the jury’s resolution of the charges
against him. Stated another way, Broadbent has given us no reason to believe it is
reasonably probable that in a 10-day trial, these two brief statements were material
35
to the jury’s decision. Accordingly, we conclude the trial court’s error in failing to
strike the nonresponsive answers was harmless.67
Even assuming that the failure to strike the challenged testimony constituted prosecutorial
misconduct68 and that the objection was properly preserved in the trial court,69 Broadbent would
not prevail. Before this Court may grant relief, it must find that any constitutional error was not
harmless. Specifically, under Brecht,70 this Court must find that the error “had [a] substantial and
injurious effect or influence in determining the [outcome].”71 This standard is a more forgiving
standard of review than the Chapman72 “beyond a reasonable doubt” standard.73 This Court
applies the Brecht standard without regard to the state court’s harmlessness determination.74 The
determination by a state court that a constitutional error is harmless is itself subject to the
unreasonableness test of AEDPA.75 While numerous cases in applying Brecht refer to the
overwhelming evidence of the petitioner’s guilt,76 this tends to overstate the quantum of evidence
67
Diaz, 2009 WL 3357924 at *9-11.
68
Napue v. Illinois, 317 U.S. 264, 269 (1959).
69
Although he raised the prosecutorial misconduct claim in the Court of Appeal,
Broadbent does not claim that he raised a prosecutorial misconduct objection in the trial court.
70
Brecht v. Abrahamson, 507 U.S. 619 (1993).
71
Id. at 622; see Fry v. Pliler, 551 U.S. 112, 121 (2007) (holding that the Brecht standard
applies whether or not the state court recognized the error and reviewed it for harmlessness).
72
Chapman v. California, 386 U.S. 18, 24 (1967).
73
Fry, 551 U.S. at 116.
74
Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir. 2011).
75
Fry, 551 U.S. at 119-20.
76
See e.g., Moses v. Payne, 543 F.3d 1090, 1100 (9th Cir. 2008); Larson v. Palmateer,
515 F.3d 1057, 1064 (9th Cir. 2008); Jackson v. Brown, 513 F.3d 1057, 1082 (9th Cir. 2008);
Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007).
36
necessary to establish harmless error under Brecht.77 “Only if the record demonstrates that the
jury’s decision was substantially influenced by the error or there is grave doubt about whether an
error affected a jury will [a habeas petitioner] be entitled to relief.”78
Prosecutorial misconduct with respect to the introduction of evidence violates due
process only if the evidence “taken as a whole” gives a jury a “false impression.”79 Here, as the
California Court of Appeal noted, the claimed error involved two relatively innocuous statements
made during a ten-day trial. Based upon the record, this Court cannot say that the determination
by the California Court of Appeal that the error was harmless was not just incorrect or erroneous,
but was objectively unreasonable.80 Broadbent is not entitled to relief under his seventh ground.
Ground 8: Refusal to Bifurcate
Prior to trial, Broadbent moved to bifurcate the trial on the criminal street gang
enhancement allegations from the substantive charges. Broadbent contends that the trial court
abused its discretion in denying the motion, and that denial of bifurcation resulted in gross
unfairness amounting to a denial of due process. The California Court of Appeal rejected
Broadbent’s contentions holding that, under California law, a “trial court has broad discretion to
deny bifurcation of a charged gang enhancement,” and that the trial court did not abuse its
discretion in denying the motion.81 This ground fails because neither an alleged mistake of state
77
See, e.g., Brecht, 507 U.S. at 639 (finding harmless error in part because “the State’s
evidence of guilt was, if not overwhelming, certainly weighty”).
78
Sechrest v. Ignacio, 549 F.3d 789, 808 (9th Cir. 2008) (citations and internal quotation
marks omitted).
79
Alcorta v. Texas, 355 U.S. 28, 31 (1957) (per curiam).
80
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).
81
Diaz, 2009 WL 3357924 at *16.
37
law nor an allegation of abuse of discretion present a question of constitutional dimension
cognizable in this Court.82
V. CONCLUSION AND ORDER
Broadbent is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.83 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.84
The Clerk of the Court is to enter judgment accordingly.
Dated: November 20, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge
82
Cooke, 130 S. Ct. at 863 (holding that it is of no federal concern whether state law was
correctly applied); Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (“It is not even whether it was an
abuse of discretion for her to have done so—the applicable standard on direct review. The
question under AEDPA is instead whether the determination of the Michigan Supreme Court that
there was no abuse of discretion was “an unreasonable application of . . . clearly established
Federal law. § 2254(d)(1).”)
83
28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003))).
84
See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
38
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?