Gray v. Cash

Filing 51

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/13/2017 VACATING the 12/20/2016 37 findings and recommendations and RECOMMENDING petitioner's 1 application for a writ of habeas corpus be granted on p etitioner's claim that the evidence is insufficient to support the jury's true finding on the enhancement allegation under Cal. Penal Code § 12022.75. The petition should be denied in all other respects. Subject to the following exce ption, proceedings in state court leading to retrial on the enhancement allegation should be commenced within 60 days from any order adopting this recommendation. However, if either party appeals the judgment in this case, no criminal proceedings s hould be required to commence until 60 days after the issuance of the mandate following a final appellate decision or the denial of a petition for writ of certiorari, whichever occurs later. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK WAYNE GRAY,

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No. 2:13-cv-0564-KJM-EFB P

Petitioner,
vs.
BRENDA M. CASH,

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ORDER AND FINDINGS AND
RECOMMENDATIONS

Respondent.

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Petitioner is a state prisoner proceeding through counsel with a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction

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entered against him on June 30, 2009, in the Shasta County Superior Court, on charges of spousal

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rape of an unconscious or sleeping victim, genital penetration with a foreign object through use of

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controlled substances, four counts of first degree residential burglary, attempted first degree

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residential burglary, sexual battery, stalking, attempted stalking, and numerous misdemeanors.1

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Petitioner was convicted of the following misdemeanors: two counts of sexual battery
(Pen.Code, § 243.4, subd. (e)(1) (counts 10 & 24)), dissuading a witness/victim from prosecuting
a crime (id., § 136.1, subd. (b)(2) (count 20)), contempt of court/disobeying a court order (id., §
166, subd. (a)(4) (count 22)), three counts of petty theft (id., §§ 484, subd. (a), 488 (counts 24, 25,
26)), eight counts of invading privacy by means of video (id., § 647, subd. (j)(3) (counts 11–18)),
and peeking (id., § 647, subd. (i) (count 19)). A misdemeanor conviction for inducing false
testimony (id., § 166, subd. (a)(1) (count 21)) was dismissed on the court’s own motion for lack
of a factual basis.
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Petitioner received a sentence of 20 years and 2 months in state prison. He seeks federal habeas

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relief on the following grounds: (1) a violation of the attorney client privilege during his trial

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violated his federal constitutional rights; (2) the evidence introduced at his trial was insufficient to

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support the jury’s factual finding that he administered a controlled substance in the commission

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of the offense of genital penetration with a foreign object; and (3) the decision of the California

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Court of Appeal on one of his appellate claims violated his Sixth Amendment right to a jury trial.

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The court issued findings and recommendations on December 20, 2016. ECF No. 37.

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Those findings recommended that petitioner’s sufficiency of the evidence claim as to Ambien’s

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status as a controlled substance be granted and his other claims be denied. Id. Both parties filed

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objections to the findings. ECF Nos. 44, 50. In addition to filing objections, respondent also

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augmented the record by submitting supplemental documents in paper evidencing the California

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Supreme Court’s denial of a state habeas petition recently filed by petitioner. ECF No. 45. These

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records were not before the court when it issued its original findings and recommendations. After

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review of those records and, in light of the arguments in the parties’ objections, the court finds it

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appropriate to vacate its previous findings and issue the following.

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Upon careful consideration of the record and the applicable law and, for the reasons

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explained below, the undersigned recommends that petitioner’s application for habeas corpus

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relief be granted in part and denied in part.

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I. Background

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In its unpublished memorandum and opinion affirming petitioner’s judgment of

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conviction on appeal, the California Court of Appeal for the Third Appellate District provided the

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following factual summary:

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Defendant Mark Wayne Gray met his wife S. when she was only 17
years old. The couple had three children, but the marriage fell apart
and she moved out of their house. Rather than get on with his life,
defendant turned hers into a living hell. He embarked on a course
of conduct calculated to terrify her, drive her crazy, or both. As a
result of misdeeds committed both before and after the separation,
defendant was convicted by a jury of the felonies of spousal rape of
unconscious or sleeping victim (Pen.Code, § 262, subd. (a)(3)),
genital penetration with a foreign object (id., § 289, subd. (d))
through use of a controlled substance (id., § 12022.75), four counts
of first degree residential burglary (id., § 459), attempted first
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degree residential burglary (id., §§ 664, 459), sexual battery (id., §
243.4, subd. (e)(1)), stalking (id., § 646.9, subd. (a)) and attempted
stalking (id., §§ 664/646.9, subd. (b)), as well as a host of
misdemeanors. He was sentenced to an aggregate term of 20 years
and two months in state prison.

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Defendant appeals, arguing that the trial court erred in denying his
pretrial motion to suppress evidence. He also challenges several
other convictions on procedural grounds. In the published parts of
this opinion, we reject two of his arguments: (1) that the trial court
committed reversible error in ordering disclosure to the prosecutor
of documents defendant brought with him to the witness stand, over
his objection that they were protected by the attorney-client
privilege; and (2) that the enhancement for administering a
controlled substance for the purpose of committing sexual
penetration (Pen.Code, § 12022.75) must be vacated because the
prosecution introduced no evidence that “Ambien” was a controlled
substance.

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As for the rest of defendant's claims, we find no reversible trial
error, but shall strike two of the misdemeanor convictions, modify
the sentence in minor respects, and otherwise affirm the judgment.

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FACTUAL BACKGROUND
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Prosecution's Case
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S. and defendant met when she was 17 years old and he was 30.
They dated, moved in together, got married in 1999, and had three
children.

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During their marriage defendant began to videotape them having
sex, which made S. uncomfortable. A couple of times S.
discovered that he had been secretly videotaping her. However,
when she confronted him with it, he became angry.

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In the fall of 2006, S. began to feel the marriage was not working
out. In early 2007, she enrolled in some college classes, which
made defendant unhappy.

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One night in August 2007, an incident occurred where, after S.
rebuffed defendant's sexual advances, he pinned her down on the
bed so she could not breathe and assaulted her sexually. She fled
the house, stayed at a friend's place and eventually moved into her
own residence.2

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Once S. moved into her own house in September 2007, she told
defendant he was not allowed inside. From then on, unusual and
suspicious events began to occur.

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The tires in S.'s minivan kept going flat, despite the efforts of the
car shop to reinflate them. In November, roofing nails were found

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At the time of trial, S. and defendant were still legally married.
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in the center of her tires, and in December, two new tires that she
had received for her birthday were found slashed.

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Various small items that S. kept in her minivan turned up missing,
such as work shirts, CD's (compact discs), a phone charger and
various items of personal clothing. Lights inside the van that she
was sure she had turned off were turned back on.
Unusual occurrences also began happening around S.'s house. The
electrical circuit breaker box was turned off mysteriously. Several
articles of clothing were found with slits in them. Decorative
pumpkins put outside the house repeatedly disappeared. On
Thanksgiving Day 2007, the main water valve to the house was
turned off. Single shoes of S.'s were missing and numerous items
of personal clothing had disappeared. All of the thefts were
reported to the police.

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After the pumpkins kept disappearing, S. bought a security camera
and installed it outside her home. The camera caught a videotape of
defendant near her home at a time when she and the children were
away. In December 2007, a PC-based video surveillance system S.
had purchased was stolen out of her garage.

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A private investigator hired by S. recorded two surveillance videos
showing defendant entering her locked minivan and removing items
from it, including panties, a purse and several CD's. One night in
April 2008, S. heard a loud noise upstairs and discovered that a
window had been broken. In June 2008, S. suspected that someone
had placed spyware on her cell phone. Police subsequently
recovered from defendant's house video footage indicating that he
had scrolled through S.'s contacts on her cell phone with a gloved
hand.

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These events left S. shaken and afraid. On September 12, 2008, she
obtained a restraining order against defendant.
On September 18, 2008, police obtained an arrest warrant for
defendant and a search warrant for his house and car. When the
officer read charges of theft or burglary, defendant responded that
any items he took were under the belief they were his property.

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In the trunk of defendant's car, police found S.'s CD's that had been
reported stolen. Under the floor mat, they found a duplicate key to
S.'s minivan.

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Inside defendant's house, police found a set of keys to S.'s house
before she had the locks changed. They also found numerous items
S. had reported stolen from her home, including the single shoes
that were taken from S.'s closet and her cell phone charger. During
the same search, police discovered a VHS tape showing defendant
having sex with S. while she was sleeping or unconscious.
Numerous other videotapes taken by a hidden camera were
discovered, some containing footage showing S. in various states of
undress, and another showing defendant digitally penetrating her

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vagina while she was asleep.3 Officers also found surreptitiously
filmed videotapes depicting defendant's next door neighbors
engaging in sexual activity.

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Defendant's criminal misconduct did not end with his arrest.
Defendant used his mother as an intermediary to tell S. that he
would agree to whatever child custody arrangement she wanted if
she would drop the charges against him. A secretly taped jailhouse
conversation indicated defendant and his mother collaborated in
trying to avoid a subpoena so that she would not have to testify at
trial.

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Defendant's former cellmate, Courtney Jones Botta, testified that
defendant offered him money to commit acts of petty theft and
vandalism against S.'s property. Defendant wanted these acts done
while he was in custody, so as to make it appear he was not the
perpetrator of the charged crimes.

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Defense

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Defendant took the stand in his own defense. He testified that he
and his wife had a “great sex life.” He admitted he used a camera
to videotape S. in states of undress and recorded footage of them
having sex, but insisted that “90 percent of the time” S. knew about
it and did not object.

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Defendant stated that he started secretly videotaping S. in June
2007 after their relationship became rocky, because she started
acting “suspicious” and “paranoid,” like she was hiding something
from him. He also believed she was spending time with other men
and taking some of his things.

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Defendant explained the digital penetration video by stating that he
had been massaging his wife to see if he could motivate her to have
sex, and was shocked to realize that she had fallen asleep. He
videotaped the episode to prove to her what a sound sleeper she
was. He denied giving her narcotics or sleep medication. He
claimed that he took the Ambien himself to help him fall asleep.

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Explaining the video that formed the basis of the spousal rape by
intoxication charge, defendant claimed that he filmed S. asleep,
paused the video to obtain her consent to have sex with him, and
then restarted the filming. He insisted his wife was awake during
the entire act of intercourse.

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Defendant denied ever breaking into S.'s house, stealing items of
personal property, or committing acts of vandalism directed at her.
He admitted taking things out of her van, but claimed he was
exercising his community property rights. He also admitted
videotaping his neighbors having sex on several occasions. He
claimed that they were having sex in their backyard, and was

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A bottle of sleeping pills with the trade name “Ambien” was also recovered. Some of
the pills had been crushed into a powder and placed in a paper bindle.
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concerned that his children would see them. The purpose of the
taping was to gather evidence for the police.

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People v. Gray, 124 Cal.Rptr.3d 625, 626-29 (2011), as modified on denial of reh'g (May 19,

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2011).

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After the California Court of Appeal affirmed his judgment of conviction, petitioner filed

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a petition for rehearing. ECF No. 1-1 at 41. The Court of Appeal modified its opinion to correct

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a typographical error but otherwise denied rehearing. Id. at 60. Petitioner subsequently filed a

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petition for review in the California Supreme Court. The Supreme Court summarily denied

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review and ordered that the opinion of the Court of Appeal not be officially published. Id. at 63.

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Justice Kennard was of the opinion that the petition should be granted. Id.
Petitioner filed a petition for certiorari in the United States Supreme Court on November

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8, 2011. ECF No. 1 at 15. The question presented for review concerned the scope of a search

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warrant executed by the police. Id. That petition was summarily denied. ECF No. 1-1 at 65.

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II. Standards of Review Applicable to Habeas Corpus Claims

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An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

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application of state law. See Wilson v. Corcoran, 562 U.S. 1,5 (2010); Estelle v. McGuire, 502

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U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

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holdings of the United States Supreme Court at the time of the last reasoned state court decision.

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Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S.

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___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.

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Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining

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what law is clearly established and whether a state court applied that law unreasonably.” Stanley,

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633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit

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precedent may not be “used to refine or sharpen a general principle of Supreme Court

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jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall

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v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155

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(2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so

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widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,

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be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of

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an issue, it cannot be said that there is “clearly established Federal law” governing that issue.

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Carey v. Musladin, 549 U.S. 70, 77 (2006).

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A state court decision is “contrary to” clearly established federal law if it applies a rule

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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

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Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

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writ if the state court identifies the correct governing legal principle from the Supreme Court’s

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decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 4 Lockyer v.

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Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002

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(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that

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court concludes in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly. Rather, that application must also be

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Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
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unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473

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(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent

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review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).

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“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as

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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

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Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

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Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner

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must show that the state court’s ruling on the claim being presented in federal court was so

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lacking in justification that there was an error well understood and comprehended in existing law

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beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

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court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

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527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

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(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §

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2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering

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de novo the constitutional issues raised.”).

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The court looks to the last reasoned state court decision as the basis for the state court

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judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If

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the last reasoned state court decision adopts or substantially incorporates the reasoning from a

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previous state court decision, this court may consider both decisions to ascertain the reasoning of

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the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When

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a federal claim has been presented to a state court and the state court has denied relief, it may be

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presumed that the state court adjudicated the claim on the merits in the absence of any indication

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or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption

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may be overcome by a showing “there is reason to think some other explanation for the state

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court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

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Similarly, when a state court decision on a petitioner’s claims rejects some claims but does not

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expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that
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the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133

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S.Ct. 1088, 1091 (2013).

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Where the state court reaches a decision on the merits but provides no reasoning to

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support its conclusion, a federal habeas court independently reviews the record to determine

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whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

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Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

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review of the constitutional issue, but rather, the only method by which we can determine whether

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a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

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reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

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reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.
A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

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Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze

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just what the state court did when it issued a summary denial, the federal court must review the

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state court record to determine whether there was any “reasonable basis for the state court to deny

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relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories ... could

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have supported, the state court's decision; and then it must ask whether it is possible fairminded

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jurists could disagree that those arguments or theories are inconsistent with the holding in a prior

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decision of [the Supreme] Court.” Id. at 102. The petitioner bears “the burden to demonstrate

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that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d

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925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

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When it is clear, however, that a state court has not reached the merits of a petitioner’s

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claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

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habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

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F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

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III. Petitioner’s Claims

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A. Violation of Attorney-Client Privilege

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In his first ground for federal habeas relief, petitioner claims that his Fifth Amendment

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right against self-incrimination, his Sixth Amendment rights to counsel and a jury trial, and his
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Fourteenth Amendment right to due process were violated when the prosecutor was allowed to

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take possession and make use of written material that petitioner brought to the witness stand to

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refresh his recollection of the relevant events. ECF No. 1 at 12, 13. 5 Petitioner claims that in

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requiring him to turn over this material to the prosecutor, the trial judge “compelled the disclosure

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of attorney-client privileged confidential communications during the trial.” Id. at 16. Petitioner

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also argues that the California Court of Appeal made an erroneous factual finding that the

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material taken from petitioner consisted of “notes being employed by a witness” instead of

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protected attorney-client communications. Id. at 33. He argues the judge’s ruling had a

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substantial and injurious effect on the verdict.6 Id.

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1. State Court Decision

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The California Court of Appeal denied this claim in a lengthy decision that was originally

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certified for partial publication. The court explained the background to the claim and its analysis

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thereon, as follows:

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Defendant argues that it was reversible error for the trial court to
order him to surrender 18 pages of notes that he brought with him
to the witness stand. He asserts that such compelled disclosure was
a violation of the attorney-client privilege, and that the prosecutor's
use of the notes severely damaged his defense. We do not agree.

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A. Factual Background

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In the middle of defendant's testimony, the prosecutor asked for a
bench conference. Out of the presence of the jury, the trial judge,
the Honorable Monica Marlow, stated on the record that defendant
had taken certain notes with him to the witness stand and that the
prosecutor had asked to review them. Defense counsel's initial
reaction was, “That would be fine. I don't know what he's taken

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Page number citations such as this one are to the page numbers reflected on the court’s
CM/ECF system and not to page numbers assigned by the parties.
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Respondent argues that petitioner’s Fifth Amendment claim is not exhausted. ECF No.
15 at 20 n.1. Generally, a state prisoner must exhaust all available state court remedies either on
direct appeal or through collateral proceedings before a federal court may consider granting
habeas corpus relief. 28 U.S.C. § 2254(b)(1). However, an application for a writ of habeas
corpus “may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). See Cassett v. Stewart,
406 F.3d 614, 624 (9th Cir. 2005). Assuming arguendo that petitioner’s Fifth Amendment claim
is unexhausted, this court recommends that it be denied on the merits pursuant to 28 U.S.C.
§ 2254(b)(2).
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with him.” Defendant, however, asked, “What if I have a problem
with that?” A recess was then taken to allow defendant to consult
with his attorney.

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At the conclusion of the conference, defense counsel Amy Babbits
explained that the notes were communications defendant made with
his prior attorney and with her. Judge Marlow asked why
defendant had the notes with him on the witness stand, to which
Attorney Babbits had no ready reply. The judge then ordered the
notes placed in a sealed envelope until an Evidence Code section
4027 hearing could be held regarding their disclosure. Defendant
objected to this turn of events, stating “I would like my notes. I've
worked on the notes for eight months.” Judge Marlow asked
Attorney Babbits whether she explained to her client that if he took
the notes to the witness stand the prosecutor would have a right to
review them. She responded, “I've told him that. Yes.”

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Judge Marlow explained to defendant that if he chose to have the
notes with him on the witness stand, they would be “discoverable to
the prosecution.” Defendant replied, “That damages my case.” The
judge stated that the decision was his, but if he chose to take the
notes with him, “you may end up with a court ruling you don't
agree with . . . .” Defendant responded that he would testify
without the notes.

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Subsequently, a section 402 hearing was held on the discoverability
of the notes.8 The prosecution's investigator testified that he saw
defendant consulting the notes “at least four times” during his
testimony. Defendant admitted that he took the notes to the stand,
but claimed that he referred to them only a couple of times, to
check on dates.

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Attorney Babbits took the position that the documents were
privileged attorney-client communications and were therefore
protected from disclosure. The prosecutor argued that by taking the
documents with him to the witness stand to refresh his memory,
defendant had waived any privilege and subjected them to
discovery under section 771.

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When his trial testimony resumed, the prosecutor elicited
defendant's admission that he had taken the notes with him to the
witness stand the previous day. At a resumption of the section 402
hearing, defendant testified that the notes were “letters and
summaries to [his] attorney” since November of 2008. He admitted
that he reviewed them to refresh his recollection just prior to
testifying. Under questioning by Attorney Babbits, defendant
stated that the notes were reviewed during conversations between

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Undesignated statutory references are to the Evidence Code. (footnote in original text)

The notes hereinafter referred to consist of a six-page document and a 12–page
document. Each begins with the salutation “Dear Josh,” a reference to defendant's former
attorney, Josh Lowery. (footnote in original text)
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him and his present and former attorneys, that some were prepared
at his attorney's request, and that some were written by his attorney.

2
3
4
5
6
7

Judge Marlow then took a recess to view the documents in camera.
Afterward, she announced that she was satisfied they contained no
attorney work product and thus were not protected by that privilege.
Judge Marlow also determined that the documents were “simply a
summary of [defendant's] recollection of events,” the primary
purpose of which was to refresh his memory. The court concluded
that, even though the notes might have been protected initially as
attorney-client communication, defendant had waived the privilege
by bringing them to the witness stand to refresh his memory during
his trial testimony. Accordingly, the court ordered disclosure of the
notes to the prosecutor.

8
9
10
11

In a later exchange, Attorney Babbits clarified that she did not
object to a one-page summary that defendant concededly looked at
while testifying, but did object, on grounds of attorney-client
privilege, to disclosure of the six- and 12 - page documents he had
brought with him to the witness stand. Judge Marlow ruled,
however, that under section 771, the prosecutor had a right to
review any writing defendant actually used to refresh his memory.

12
13
14
15

During cross-examination, the prosecutor used the notes to elicit
defendant's admission that he lied to his attorney when he wrote
that he never saw the video of someone scrolling with S.'s cell
phone. With respect to the spousal rape charge, the prosecutor got
defendant to admit that the notes failed to mention his current claim
that he paused the video to obtain S.'s consent before having
intercourse with her.

16
B. Analysis
17
18
19
20
21
22
23
24
25
26
27

Defendant contends that the trial court violated the attorney-client
privilege by allowing the prosecutor to see the notes he used while
testifying. He asserts that the documents were absolutely privileged
as confidential communications and that, notwithstanding section
771, the mere fact that he took them to the witness stand did not
constitute a waiver of the privilege.
Section 954 states in relevant part: “Subject to Section 912 and
except as otherwise provided in this article, the client, whether or
not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between
client and lawyer . . . .” (§ 954, 1st par.) Section 912 states in
pertinent part: “[T]he right of any person to claim a privilege
provided by Section 954 . . . is waived with respect to a
communication protected by the privilege if any holder of the
privilege, without coercion, has disclosed a significant part of the
communication or has consented to disclosure made by anyone.
Consent to disclosure is manifested by any statement or other
conduct of the holder of the privilege indicating consent to the
disclosure, including failure to claim the privilege in any
proceeding in which the holder has the legal standing and

28
12

1

opportunity to claim the privilege.”
added.)

(§ 912, subd. (a), italics

2
3
4
5

Section 771 states, with inapplicable exceptions, that “if a witness,
either while testifying or prior thereto, uses a writing to refresh his
memory with respect to any matter about which he testifies, such
writing must be produced at the hearing at the request of an
adverse party and, unless the writing is so produced, the testimony
of the witness concerning such matter shall be stricken.” (§ 771,
subd. (a), italics added.)

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

We shall assume for purposes of argument that the two documents
in question were confidential communications between defendant
and his attorneys and thus presumptively privileged. The decisive
question is whether Judge Marlow correctly ruled that defendant's
use of these notes to refresh his memory constituted a waiver of that
privilege.
Cases addressing the interplay between section 771 and the
attorney-client privilege are few. In Kerns Construction Co. v.
Superior Court (1968) 266 Cal.App.2d 405, 72 Cal.Rptr. 74, the
defendant's employee used certain investigation and accident
reports to refresh his testimony at a deposition. When the plaintiff's
attorney demanded disclosure of the reports, defense counsel
objected on grounds of attorney-client privilege. (Id. at pp. 408–
409, 72 Cal.Rptr. 74.) The Court of Appeal, Fourth Appellate
District, Division Two, held that the reports were properly subject
to disclosure. “Having no independent memory from which he [the
witness] could answer the questions; having had the papers and
documents produced by [defendant] Gas Co.'s attorney for the
benefit and use of the witness; [and,] having used them to give the
testimony he did give, it would be unconscionable to prevent the
adverse party from seeing and obtaining copies of them. We
conclude there was a waiver of any privilege which may have
existed.” (Id. at p. 410, 72 Cal.Rptr. 74.)
However, in Sullivan v. Superior Court (1972) 29 Cal.App.3d 64,
105 Cal.Rptr. 241, (Sullivan), a conference between the plaintiff
and her attorney regarding the facts of an automobile accident was
tape recorded and then transcribed. The plaintiff reviewed the
transcript to refresh her memory before giving deposition
testimony. After ascertaining that the plaintiff had used it to refresh
her memory, defense counsel demanded disclosure of the transcript
under section 771. (Sullivan, at p. 67, 105 Cal.Rptr. 241.)

23
24
25
26
27
28

The Court of Appeal, First Appellate District, Division Four, held
that the privilege was not waived under these circumstances.
Although it recognized an apparent conflict between section 771,
which requires the production of all writings used to refresh
testimony, and section 954, which protects confidential
communications between attorney and client (Sullivan, supra, 29
Cal.App.3d at p. 72, 105 Cal.Rptr. 241), the court, as a matter of
statutory interpretation, held that the word “writing” in section 771
was never intended to include a verbatim transcript of a confidential
interview between attorney and client with respect to the core issues
13

1
2
3

in the case (Sullivan, at p. 73, 105 Cal.Rptr. 241). In light of the
“age and sanctity” of the privilege, the Sullivan court found it
doubtful that the Legislature intended the word “writing” in section
771 to cover such a unique document as a transcript of a
confidential attorney-client conversation. (Sullivan, at pp. 73–74,
105 Cal.Rptr. 241.)

4
5
6
7
8
9
10

Much more recently, in People v. Smith (2007) 40 Cal.4th 483, 54
Cal.Rptr.3d 245, 150 P.3d 1224, the California Supreme Court had
no trouble deciding that the mandate of section 771 prevailed over a
claim of psychotherapist-patient privilege. There, defense-retained
psychologist, Dr. Oliver Glover, administered numerous
psychological tests to the defendant and used the results to refresh
Dr. Glover's recollection before testifying. The prosecution moved
to discover Dr. Glover's notes, raw data and test materials under
sections 771 and 721, subdivision (a), criterion (3) (providing that
an expert witness may be fully cross-examined as to “the matter
upon which his or her opinion is based and the reasons for his or
her opinion”). (People v. Smith, supra, 40 Cal.4th at pp. 507–508,
54 Cal.Rptr.3d 245, 150 P.3d 1224.)

11
12
13
14

Smith held that the foregoing statutes required production of the
materials. Noting that Dr. Glover relied on the documents to
refresh his memory and to formulate his opinion, the Supreme
Court ruled that the trial court “did not abuse its discretion” in
ruling that the prosecution was entitled to disclosure of the doctor's
tests and notes. (People v. Smith, supra, 40 Cal.4th at pp. 508–509,
54 Cal.Rptr.3d 245, 150 P.3d 1224.)

15
16

Applying the foregoing principles and interpreting the relevant
statutes, we uphold the trial court's determination that the attorneyclient privilege was waived under the circumstances here.

17
18
19
20
21
22
23
24

It is the function of the trial court to resolve any factual dispute
upon which a claim of privilege depends (Lipton v. Superior Court
(1996) 48 Cal.App.4th 1599, 1619, 56 Cal.Rptr.2d 341) and the
court's resolution of such factual conflicts will not be disturbed if
supported by substantial evidence (Sierra Vista Hospital v.
Superior Court for San Luis Obispo County (1967) 248 Cal.App.2d
359, 364–365, 56 Cal.Rptr. 387). Moreover, discovery orders are
reviewed for abuse of discretion. (People ex rel. Lockyer v.
Superior Court (2004) 122 Cal.App.4th 1060, 1071, 19 Cal.Rptr.3d
324.)
Unlike the situation in Sullivan, the prosecutor was not seeking to
discover the contents of a pretrial attorney-client communication.
She merely sought notes that were being employed by a witness
during the course of his testimony.

25
26
27
28

Section 954 declares that the attorney-client privilege may be
waived by any conduct on the part of the privilege holder
manifesting consent to the disclosure. Evidence adduced at the
section 402 hearing revealed that defendant's “Dear Josh” letters
actually consisted primarily of notes he prepared in computer class
during his incarceration. They contained a count-by-count response
14

1

to the criminal charges. Defendant brought the documents with him
to the witness stand, referred to them on several occasions while
testifying, and admittedly used them to refresh his memory.

2
3

A person “who exposes any significant part of a communication in
making his own case waives the privilege with respect to the
communication's contents bearing on discovery, as well.” (Samuels
v. Mix (1999) 22 Cal.4th 1, 20–21, fn. 5, 91 Cal.Rptr.2d 273, 989
P.2d 701; see also § 912, subd. (a); People v. Barnett (1998) 17
Cal.4th 1044, 1124, 74 Cal.Rptr.2d 121, 954 P.2d 384.) By
bringing the notes to the witness stand and using them to refresh his
memory, defendant made their contents fair game for examination
and inquiry. Such conduct is inconsistent with an intent to preserve
them as confidential attorney-client communications.

4
5
6
7
8

“The doctrine of waiver of the attorney-client privilege is rooted in
notions of fundamental fairness. Its principal purpose is to protect
against the unfairness that would result from a privilege holder
selectively disclosing privileged communications to an adversary,
revealing those that support the cause while claiming the shelter of
the privilege to avoid disclosing those that are less favorable.”
(Tennenbaum v. Deloitte & Touche (9th Cir.1996) 77 F.3d 337,
340–341, citing 8 Wigmore, Evidence (McNaughton ed. 1961) §
2327, p. 636.)

9
10
11
12
13

It would be unjust to allow a party to use written materials on the
witness stand to enable him to present his case to the jury and then
hide behind a claim of attorney-client privilege when his adversary
seeks to review the same materials.9 The trial court reasonably
found that, by using the documents as a memory-refreshing device
and visual aid in presenting his testimony, defendant waived any
claim of attorney-client privilege. Accordingly, the court properly
required their disclosure to the prosecution pursuant to the mandate
of section 771. We find no abuse of discretion in the disclosure
order.10

14
15
16
17
18
19
20
21

9

Section 771 provides an alternative – striking defendant's testimony – but that
apparently was not requested by the parties. (footnote in original text)
10

22
23
24
25
26
27
28

Defendant also claims the trial court's in camera review was itself error, citing Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 101 Cal.Rptr.3d 758, 219 P.3d 736. In
Costco, the Supreme Court noted that section 915, subdivision (a) prohibits information claimed
to be protected by the attorney-client privilege from disclosure to a presiding officer. (Costco, at
p. 736, 101 Cal.Rptr.3d 758, 219 P.3d 736.) Although the statute allows in camera review to
enable a trial court to rule on a claim of work product privilege, it has no counterpart with respect
to the attorney-client privilege. Thus, the trial court erred by conducting an in camera review of
the subject attorney-client letter. (Id. at pp. 736–737, 101 Cal.Rptr.3d 758, 219 P.3d 736.)
Unlike the situation in Costco, Judge Marlow conducted an in camera review for the stated
purpose of ascertaining whether any attorney work product privilege applied, which is expressly
permitted by section 915, subdivision (b). Defense counsel lodged no objection to the court's
procedure. Accordingly, any claim of error has been forfeited. (footnote in original text)
15

1
2

People v. Gray, No. C062668, 124 Cal.Rptr.3d 625, 626-29 (2011).
2. Analysis

3

The decision of the California Court of Appeal on petitioner’s claim regarding the

4

violation of the attorney-client privilege turns on an analysis of California case law and statutes.

5

As explained above, a federal writ is not available for alleged error in the interpretation or

6

application of state law. Wilson, 562 U.S. at 5; Estelle, 502 U.S. at 67-68. To the extent

7

petitioner is alleging that the trial court violated state law in ordering him to turn over his notes to

8

the prosecutor, his claims are not cognizable in this federal habeas action. This would include

9

whether petitioner validly waived the attorney-client privilege under state law by relying on

10

material he brought to the witness stand. The only claims that are properly before this court are

11

claims alleging federal constitutional error. The court will address those claims below.

12

Citing Weatherford v. Bursey, 429 U.S. 545 (1977), petitioner claims that being forced to

13

turn over attorney-client material to the prosecutor violated his Sixth Amendment right to

14

counsel. ECF No. 1 at 35. In Weatherford, an undercover agent attended sessions between the

15

defendant and the defendant's attorney at the invitation of defense counsel, who believed that the

16

agent was also being prosecuted for the same offense. Although the agent sat in on these

17

sessions, he did not disclose any information he learned at the sessions to his superiors or to the

18

prosecution. The Court of Appeals for the Fourth Circuit held that the agent’s actions violated the

19

Sixth Amendment because “whenever the prosecution knowingly arranges and permits intrusion

20

into the attorney-client relationship the right to counsel is sufficiently endangered to require

21

reversal and a new trial.” Weatherford, 429 U.S. at 549, 97 S.Ct. 837 (quoting Bursey v.

22

Weatherford, 528 F.2d 483, 486 (4th Cir. 1975)). The Supreme Court reversed the Fourth

23

Circuit, holding that a Sixth Amendment violation in this context requires not only intrusion into

24

the attorney-client privilege but also a showing of prejudice. Later, in Cluchette v. Rushen, 770

25

F.2d 1469, 1471 (9th Cir. 1985), the Ninth Circuit explained:

26
27
28

Standing alone, the attorney-client privilege is merely a rule of
evidence; it has not yet been held a constitutional right. See Maness
v. Meyers, 419 U.S. 449, 466 n. 15, 95 S.Ct. 584, 595 n. 15, 42
L.Ed.2d 574 (1975); Beckler v. Superior Court, 568 F.2d 661, 662
(9th Cir.1978).
In some situations, however, government
16

1

interference with the confidential relationship between a defendant
and his counsel may implicate Sixth Amendment rights. See, e.g.,
Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30
(1977). Such an intrusion violates the Sixth Amendment only when
it substantially prejudices the defendant. United States v. Irwin,
612 F.2d 1182, 1186-87 (9th Cir.1980); see United States v. Glover,
596 F.2d 857, 863-64 (9th Cir.), cert. denied, 444 U.S. 860, 100
S.Ct. 124, 62 L.Ed.2d 81 (1979).

2
3
4
5
6
7

Cluchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985).
Petitioner also cites United States v. Danielson, 325 F.3d 1054 (9th Cir. 2003), in support

8

of his federal constitutional claims.11 ECF No. 1 at 38. In Danielson, a criminal defendant

9

revealed his trial strategy to a confidential government informant. Although the government had

10

not directed the informant to obtain this information, it later encouraged the informant to keep

11

talking to the defendant and paid some of his expenses while he continued to gather information.

12

Danielson, 325 F.3d at 1060. Under these circumstances, the Ninth Circuit found that the

13

government had improperly intruded into the attorney-client relationship. Citing the Supreme

14

Court decision in Weatherford, the court remanded the case to the trial court to determine whether

15

petitioner had suffered “substantial” prejudice from the government’s improper actions. The

16

Ninth Circuit explained:

17

Substantial prejudice results from the introduction of evidence
gained through the interference against the defendant at trial, from
the prosecution's use of confidential information pertaining to
defense plans and strategy, and from other actions designed to give
the prosecution an unfair advantage at trial.

18
19
20
21

Id. at 1069.
Petitioner argues that, in this case, “the prosecutor was able to utilize the attorney-client

22

communications to damage the credibility of petitioner in front of the jury and it was that

23

prejudicial conduct which caused the constitutional violations complained of here.” ECF No. 1 at

24

35. Petitioner points out that the prosecutor used the confiscated material to cross-examine him,

25

eliciting the fact that he had lied to his attorneys and his mother, and had failed to tell his attorney

26

that he paused the videotape in order to secure his wife’s consent to sexual intercourse. Id. at 39-

27
28

11

Petitioner mis-labels this case United States v. Dennis. Id. However, it is clear that he
is referring to the Danielson case.
17

1

40. He contends that the prosecutor’s actions, in effect, “invaded the defense camp.” Id. at 43.

2

Petitioner asks:

3

What can be more injurious to a defendant’s case than having the
prosecutor holding in her hand a sheaf of 18 pages of letters from
client to attorney and cross-examining the defendant, Mr. Gray, on
the contents of those letters and getting him to admit that he lied to
his attorney and that he lied even to his own mother about material
facts of the case.

4
5
6
7
8
9
10

Id. at 44.
Petitioner also notes that the prosecutor referred to the notes in his closing argument and
read aloud from one of petitioner’s letters to his counsel, comparing the statements contained
therein with petitioner’s trial testimony. Id. at 39-40. He argues:

11

Here, the state deliberately intruded into petitioner’s privileged
relationship with his attorneys. As in other federal cases, the
government here, unwisely but actively, infiltrated the defense, not
by planting informants but, incomprehensibly with the approval of
a California state court, intercepting and actually seizing and using
in court against petitioner, confidential communications between
petitioner and his attorneys.

12
13
14
15

Id. at 36-37.

16

Finally, petitioner argues that the California Court of Appeal made a factual misstatement

17

when it found that he brought the notes to the witness stand and used them to refresh his memory.

18

He contends that, on the contrary, the court and prosecutor agreed that petitioner had not read

19

from or viewed the documents during his testimony, but only before he took the witness stand.

20

Id. at 42.

21

As explained above, a federal habeas court must deny habeas relief with respect to any

22

claim adjudicated on the merits in a state court proceeding unless the proceeding “resulted in a

23

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

24

Federal law, as determined by the Supreme Court of the United States” or “resulted in a decision

25

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

26

the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). Clearly established Federal law under

27

§ 2254(d)(1) is “the governing legal principle or principles set forth by the Supreme Court at the

28

time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). When
18

1

a Supreme Court decision does not ‘squarely address[ ] the issue in th[e] case . . . it cannot be

2

said, under AEDPA, there is ‘clearly established’ Supreme Court precedent addressing the issue

3

before us, and so we must defer to the state court's decision.” Moses v. Payne, 555 F.3d 742, 754

4

(9th Cir. 2009). In other words, under AEDPA a federal habeas court must defer to the state

5

court’s decision if a Supreme Court decision fails to “squarely address” the issue in the case or to

6

establish a legal principle that “clearly extends to a new context.” Varghese v. Uribe, 736 F.3d

7

817, 820 (9th Cir. 2013). See also Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) (“If no

8

Supreme Court precedent creates clearly established federal law relating to the legal issue the

9

habeas petitioner raised in state court, the state court’s decision cannot be contrary to or an

10
11

unreasonable application of clearly established federal law”).
There is no United States Supreme Court decision which squarely addresses the issue

12

presented in this case. Nor is there a legal principle established by a Supreme Court decision that

13

clearly extends to the novel factual context of this case. In the cases relied on by petitioner, the

14

prosecution instigated and set in motion a violation of the defendant’s attorney-client privilege,

15

which it then used to its advantage. In this case, on the contrary, the prosecutor’s request for a

16

copy of petitioner’s notes was made only after petitioner brought the notes to the witness stand to

17

use in connection with his testimony. The prosecutor’s request to see these notes was permitted

18

by state statute and sanctioned by court order. Unlike the situation in Weatherford and

19

Danielson, there was no purposeful improper intrusion by the prosecutor on petitioner’s

20

confidential notes for the purpose of giving him an unfair advantage. Rather, he simply requested

21

what the California Evidence Code allowed: the opportunity to review material that a witness is

22

using to refresh his recollection. Because there is no United States Supreme Court decision that

23

gives a clear answer to the question presented, let alone one in petitioner’s favor, the decision of

24

the California Court of Appeal does not violate 28 U.S.C. § 2254(d). See Wright v. Van Patten,

25

552 U.S. 120, 126 (2008).

26

In any event, petitioner has failed to establish that the trial court’s ruling had a

27

“’substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht, 507

28

U.S. at 637. With regard to petitioner’s cross-examination testimony that he falsely told his first
19

1

trial counsel and his mother that he had not seen the videos of someone scrolling through the

2

victim’s cell phone, petitioner explained that he did so because he was originally advised not to

3

make any incriminating statements. Later, however, his counselor told him “to tell the truth so I

4

told the truth.” Reporter’s Transcript (RT) at 984-5. He also explained that he did not tell his

5

mother about seeing the videotape of someone scrolling through the victim’s cell phone because

6

he believed she was passing information along to other members of his family, who in turn were

7

passing the information to his wife. Id. at 985-86. In addition, petitioner testified that he did not

8

tell his attorney that he woke his wife up to ask her permission to have sex because it was a

9

“minor” detail “in the scope of what I was being charged with.” Id. at 985. Given the substantial

10

evidence of petitioner’s guilt, as set forth in the opinion of the California Court of Appeal, and the

11

fact that petitioner was able to plausibly explain the discrepancy between his trial testimony and

12

the contents of his notes, the court does not find that petitioner has established prejudice with

13

respect to this claim. Any error by the trial court in allowing the prosecutor to take possession of

14

petitioner’s notes could not have had a “substantial and injurious effect or influence in

15

determining the jury's verdict” under the circumstances of this case. Brecht, 507 U.S. at 637.

16
17

For the foregoing reasons, petitioner is not entitled to relief on his claim that a violation of
the attorney-client privilege violated his federal constitutional rights.

18

B. Sufficiency of the Evidence

19

Petitioner was charged with a five-year sentence enhancement for administering “a

20

controlled substance, to wit: AMBIEN, in violation of Penal Code section 12022.75” in the

21

course of committing the felony of sexual penetration with a foreign object. Clerk’s Transcript

22

on Appeal (CT) at 209. The jury found this sentence enhancement allegation to be true. Id. at

23

483. Penal Code § 12022.75 provides, with respect to controlled substances, that “Any person

24

who, in the commission or attempted commission of any offense specified in paragraph (2),

25

administers any controlled substance listed in Section 11054, 11055, 11056, 11057, or 11058 of

26

the Health and Safety Code to the victim shall be punished by an additional and consecutive term

27

of imprisonment in the state prison for five years.” Cal. Pen. Code § 12022.75(b)(1). The drug

28

“Ambien” is not specifically listed as a controlled substance under Health and Safety Code
20

1

§§ 11054, 11055, 11056, 11057 or 11058. Further, the prosecutor did not introduce any evidence

2

at petitioner’s trial to show that Ambien is a controlled substance under the relevant sections of

3

the Health and Safety Code.

4

With that absence of evidence on the question, petitioner claims that the evidence

5

introduced at his trial was insufficient to support the jury finding that he administered a controlled

6

substance to his wife. ECF No. 1 at 45-49. He notes that the jury instructions required the jurors

7

to determine whether he administered Ambien to his wife, but did not require them to determine

8

if Ambien constituted a controlled substance under the relevant sections of the Health and Safety

9

Code. Id. at 46. He argues that there was a complete lack of evidence to support the jury’s true

10
11

finding on the sentence enhancement.
Petitioner raised this claim on direct appeal and also in a petition for review filed in the

12

California Supreme Court. Resp’t’s Lod. Docs. 9, 17. Accordingly, the claim is exhausted.

13

Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999). In his opposition brief on appeal,

14

respondent conceded that the evidence was insufficient to support the sentence enhancement for

15

administering a controlled substance and agreed that petitioner’s five year sentence on that

16

enhancement should be reversed. Resp’t’s Lod. Doc. 10 at 50-51. Subsequently, the California

17

Court of Appeal requested briefing by the parties on the following two issues: (1) whether the

18

court could take judicial notice of facts demonstrating that Ambien contained an ingredient that is

19

a listed controlled substance; and (2) if the court could properly take judicial notice of these facts,

20

what effect this would have on petitioner’s claim of insufficient evidence. Both parties filed

21

responsive briefs. Resp’t’s Lod. Docs. 12, 13.

22
23

1. State Court Decision
The California Court of Appeal rejected petitioner’s arguments, but only after

24

characterizing them and construing his claim as one of jury instruction error instead of a claim of

25

insufficient evidence. The state court explained its reasoning as follows:

26
27

Defendant contends that the enhancement must be stricken because
the prosecution introduced no evidence that Ambien was a
controlled substance. We do not agree.

28
21

1

Defendant's argument frames a false issue. The question is not
whether the prosecution failed to prove an element of the offense
(that Ambien was a controlled substance) because the jury
instruction given by the trial court completely removed that issue
from the jury's consideration.

2
3
4

The court instructed the jury as follows: “If you find defendant
guilty of the crime charged in count one [digital penetration,] you
must then decide whether the People have proved the additional
allegation that defendant administered a controlled substance to [S.]
during the commission of that crime. [¶] . . . To prove this
allegation, the People must prove two things; number one, in the
commission of sex penetration with a foreign object when [the]
victim [was] unconscious, [defendant] administered Ambien to [S.]
[¶] And, number two, [defendant] did so for the purpose of
committing the crime of sex penetration with a foreign object when
the victim was unconscious.”12 (Italics added.)

5
6
7
8
9
10

Thus, the instruction conclusively presumed that Ambien was a
controlled substance, rather than asking the jury to determine it as a
factual issue. Because the instruction completely removed the issue
from the jury's consideration, it makes no sense to ask whether that
element of the crime was supported by substantial evidence.
“‘When proof of an element has been completely removed from the
jury's determination, there can be no inquiry into what evidence the
jury considered to establish that element because the jury was
precluded from considering whether the element existed at all.’”
(People v. Flood (1998) 18 Cal.4th 470, 533, 76 Cal.Rptr.2d 180,
957 P.2d 869 (Flood), quoting United States v. Gaudin (9th
Cir.1994) 28 F.3d 943, 951.) Instead, the issue on appeal devolves
into one of instructional error.

11
12
13
14
15
16
17

An instruction that forecloses jury inquiry into an element of the
offense and relieves the prosecution from the burden of proving it
violates the Fourteenth Amendment. (Carella v. California (1989)
491 U.S. 263, 266, 109 S.Ct. 2419, 105 L.Ed.2d 218, 222.) Such an
instruction does not require automatic reversal, however. An
instruction which misdescribes, omits or presumes an element of an
offense is subject to harmless error review under Chapman v.
California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705,
710–711, i.e., whether the error was harmless beyond a reasonable
doubt (Flood, supra, 18 Cal.4th at p. 499, 76 Cal.Rptr.2d 180, 957
P.2d 869). Stated another way, we must ask whether we can say
beyond a reasonable doubt that the error did not contribute to the
jury's verdict. (Flood, supra, 18 Cal.4th at p. 504, 76 Cal.Rptr.2d
180, 957 P.2d 869, citing Yates v. Evatt (1991) 500 U.S. 391, 402–
403, 111 S.Ct. 1884, 114 L.Ed.2d 432, 448, overruled on other
grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4, 112
S.Ct. 475, 116 L.Ed.2d 385, 399.)

18
19
20
21
22
23
24
25
26
27
28

12

Prior to this instruction, the court twice referred to the special allegation relating to
count one as “administering Ambien,” not “administering a controlled substance.” (footnote in
original text)
22

1
2

“One situation in which instructional error removing an element of
the crime from the jury's consideration has been deemed harmless is
where the defendant concedes or admits that element.” (Flood,
supra, 18 Cal.4th at p. 504, 76 Cal.Rptr.2d 180, 957 P.2d 869.)

3
4
5
6
7
8
9
10
11
12
13
14
15
16

Here, the jury instruction presuming Ambien was a controlled
substance was given without objection and was never the topic of
discussion in chambers. At trial, defendant did not dispute that
Ambien was a controlled drug. His defense was that he procured a
prescription for Ambien for himself, because he had trouble
sleeping. In their summations, both attorneys argued their case as if
it were a given fact that Ambien was a controlled substance. The
prosecutor argued, “There's an enhancement here. And that's for
the administration of Ambien to commit the crime.” (Italics
added.) Defense counsel retorted, “She has no proof that at the
time of that video [S.] was given Ambien.” (Italics added.) The
record thus establishes that the trial was conducted by the court and
all parties as if Ambien's status as a controlled substance was a
presumed fact.
There is a sound basis for judicially noticing the truth of the fact
presumed in the instruction. Judicial notice is commonly taken of
well-known medical and scientific facts. (See 1 Witkin, Cal.
Evidence (4th ed. 2000) Judicial Notice, § 33, pp. 128–129
(Witkin) [and cases collected therein].) Although “Ambien” is not
listed as a controlled substance in the Health and Safety Code
section 11057, subdivision (d) provides that controlled substances
include “any material, compound, mixture, or preparation which
contains any quantity of the following substances, including its
salts, isomers, and salts of isomers whenever the existence of those
salts, isomers, and salts of isomers is possible within the specific
chemical designation: [¶] . . . [¶] (32) Zolpidem.”

17
18
19
20
21
22
23
24
25
26

The Physicians' Desk Reference (PDR) states that “Ambien” is the
chemical compound “zolpidem tartrate.” (Ambien, Physicians'
Desk Reference, Prescription Drugs (63d ed. 2009) p. 2692, italics
added.)
Judicial notice is a substitute for formal proof of facts. (1 Witkin,
supra, Judicial Notice, § 1, p. 102.) Section 452 provides that
judicial notice may be taken of “[f]acts and propositions that are not
reasonably subject to dispute and are capable of immediate and
accurate determination by resort to sources of reasonably
indisputable accuracy.” (§ 452, subd. (h).) The PDR has been
recognized in other jurisdictions as an authoritative source for
indisputably accurate information. (See Commonwealth v. Greco
(Mass.2010) 76 Mass.App.Ct. 296, 301, 921 N.E.2d 1001, 1006;
Kollmorgen v. State Bd. of Med. Examrs. (Minn.Ct.App.1987) 416
N.W.2d 485, 488; U.S. v. Dillavou (S.D.Ohio 2009) 2009 WL
230118; Wagner v. Roche Labs. (Ohio 1996) 77 Ohio St.3d 116,
120, fn. 1, 671 N.E.2d 252, 256 [“The PDR is considered an
authoritative source for information.”].)

27
28
23

1

An appellate court may take judicial notice of any fact judicially
noticeable in the trial court. (Evid.Code, § 459, subd. (a).)13
Therefore, we take judicial notice, by reference to the PDR, that
Ambien contains zolpidem, which is specifically listed as a
controlled substance in Health and Safety Code section 11057,
subdivision (d)(32).

2
3
4

“The United States Supreme Court has admonished that,
‘[h]armless-error analysis addresses . . . what is to be done about a
trial error that, in theory, may have altered the basis on which the
jury decided the case, but in practice clearly had no effect on the
outcome.’” (People v. Harris (1994) 9 Cal.4th 407, 431, 37
Cal.Rptr.2d 200, 886 P.2d 1193, quoting Rose v. Clark (1986) 478
U.S. 570, 582, fn. 11, 106 S.Ct. 3101, 92 L.Ed.2d 460, 473.)

5
6
7
8

Our review of the trial record, coupled with undisputed facts of
which we take judicial notice, convinces us beyond a reasonable
doubt the instructional error here played no part in the jury's true
finding on the enhancement of administering a controlled
substance. Indeed, to overturn a verdict due to the absence of proof
of an undisputedly true and judicially noticeable fact would be an
abdication of our constitutional duty to reverse only where the error
complained of resulted in a miscarriage of justice. (Cal. Const., art.
VI, § 13.)

9
10
11
12
13
14
15

Gray, 124 Cal.Rptr.3d at 634-36.
The California Supreme Court denied petitioner’s initial petition for review (Resp’t’s Lod.

16

Doc. 17) on August 24, 2011. Resp’t’s Lod. Doc. 18. Roughly two years later, the California

17

Supreme Court decided People v. Davis, 57 Cal.4th 353 (2013). In Davis, the court was tasked

18

with deciding whether a jury could infer that 3,4-methylenedioxymethamphetamine (MDMA) or

19

‘Ecstasy’ was a controlled substance based solely on its chemical name, even when the substance

20

was not listed as controlled in the relevant portion of the California Health and Safety Code. Id.

21

at 356. The California Supreme Court rejected “the notion that the jury could rely on ‘common

22

sense’ or ‘common knowledge’ to infer from its chemical name that MDMA contains some

23

quantity of methamphetamine or amphetamine.” Id. at 360. It found that the matter was not

24

within the “common knowledge of laymen” and that “it was incumbent on the People to introduce

25

competent evidence or a stipulation about MDMA’s chemical structure or effects.” Id. at 361-62.

26
27
28

13

In a letter requesting supplemental briefing, we informed the parties that we were
considering the propriety of taking judicial notice of the PDR entry for Ambien, and afforded
them an opportunity to brief the issue. (footnote in original text).
24

1

After Davis was decided, petitioner filed a motion to reinstate his appeal on the grounds

2

that Davis was intervening law. The following procedural history is taken from a petition for writ

3

of habeas corpus filed by petitioner with the California Supreme Court on August 5, 2014:

4
5
6
7
8

On July 25, 2013, nearly two years after the remittitur issued, this
court decided People v. Davis (2013) 57 Cal.4th 353. On
November 4, 2013, petitioner filed a motion to recall the remittitur
and to reinstate his appeal in Case No. C062668 on the grounds
that, after the issuance of the remittitur, intervening new authority,
contrary to state law relied upon in the Court of Appeal’s opinion,
was issued by this court in Davis. On November 22, 2013, the
Court of Appeal summarily denied the motion.

12

On December 24, 2103 (sic), petitioner filed a petition (Case No.
S124988) seeking review of the Court of Appeal’s November 22,
2013, order and requesting that this court vacate the order denying
the motion and the transfer the matter back to the Court of Appeal
to reconsider its decision in light of Davis. On February 26, 2014,
this court denied review without prejudice to petitioner’s right to
seek relief by way of petition for writ of habeas corpus citing In re
Harris (1993) 5 Cal.4th 813, 841.

13

...

14

On April 1, 2014, petitioner filed an application in the Court of
Appeal in Case No. C062668 to expand his appellate counsel’s
appointment to include the preparation and filing of a petition for
writ of habeas corpus; the application was supported by the
Declaration of Appellate Counsel Patricia L. Brisbois and also
included a copy of this court’s February 26, 2014 order.

9
10
11

15
16
17
18
19
20
21
22
23

On April 14, 2014, the Court of Appeal filed an order denying the
application to expand appellate counsel’s appointment and stated,
“In denying the motion to recall remittitur, filed by petitioner on
November 4, 2013, we treated it as the equivalent of a petition for
writ of habeas corpus. (See In re Richardson (2011) 196
Cal.App.4th 647, 663.)” On April 25, 2014, petitioner filed a
petition for review in Case No. S218049. On June 25, 2014, this
court denied the petition for review “without prejudice to the filing
of a petition for writ of habeas corpus in this court on the issue of
whether defendant is entitled to relief in light of People v. Davis
(2013) 57 Cal. 4th 353.”

24

Resp’t’s Lod. Doc. 23 at 4. As noted above, petitioner then filed a petition for writ of habeas

25

corpus with the California Supreme Court on August 5, 2014 wherein he again argued that

26

insufficient evidence supported his five year enhancement for administering a controlled

27

substance. Id. at 10. He argued that Davis constituted new, intervening authority which entitled

28

him to relief on this claim. Id. at 12. Petitioner also contended that the court of appeal had
25

1

committed legal error and acted in excess of its jurisdiction when it took judicial notice of facts

2

not proven at trial to support Ambien’s classification as a controlled substance. Id. at 16. On

3

November 18, 2015, the California Supreme Court issued a silent denial. Resp’t’s Lod. Doc. 24.

4

Petitioner’s claim before this court is that the evidence introduced at his trial is

5

insufficient to support the jury’s finding that he administered a controlled substance. Petitioner’s

6

allegations of insufficient evidence state a federal habeas claim. Jackson v. Virginia, 443 U.S.

7

307, 319 (1979); In re Winship, 397 U.S. 358, 364 (1970). Petitioner argues that the California

8

Court of Appeal improperly resolved his claim by relying on a theory not raised or briefed by the

9

parties and by failing to address the claim of insufficient evidence actually raised. ECF No. 23 at

10

16. He contends that the court of appeal’s decision is not entitled to deference under AEDPA

11

because it “totally rejected a sufficiency of the evidence analysis and took the tack the CCA itself

12

could supply the missing element.” ECF No. 1 at 49. In its earlier findings and

13

recommendations, the court credited this argument and reviewed this claim de novo. ECF No. 37

14

at 24. The court, based on procedural background articulated supra, now recognizes that this

15

acceptance was error and that AEDPA deference should have been applied. Specifically, the

16

procedural history of this claim in the state courts weighs against ‘looking through’ the California

17

Supreme Court’s denial of petitioner’s August 2014 habeas petition. The court notes that

18

respondent could not have raised this procedural background in her 2013 answer (ECF No. 15)

19

because the California Supreme Court had not yet invited (June 25, 2014) or denied (November

20

18, 2015) the relevant habeas petition addressing People v. Davis. Resp’t’s Lod. Docs. 22, 24.

21

Petitioner first raised the potential applicability of the Davis case in his December 2013 traverse

22

(ECF No. 23 at 17) and noted that he had filed a petition for review with the California Supreme

23

Court asking it to recall the remittitur and reinstate his appeal on the issue of whether the court of

24

appeal acted properly in taking judicial notice of Ambien’s status as a controlled substance. Id.

25

This led to the filing of a habeas petition on that issue on August 5, 2014. Resp’t’s Lod. Doc. 23.

26

In a series of status reports, petitioner indicated that his petition had been submitted (ECF No. 31)

27

and ultimately denied (ECF No. 35). The order inviting the petition, the petition itself, and the

28

order silently denying it were not submitted to this court until February 22, 2017 – the same day
26

1

respondent filed her objections to the courts recommendations (ECF No. 44) - when the Clerk of

2

Court acknowledged paper receipt of those lodged documents from respondent.14 ECF No. 45. 15

3

As such, these documents were not available to the court at the time it issued its earlier findings

4

and recommendations in December 2016. ECF No. 37.

5

As noted above, this court must look to the last reasoned state court decision as the basis

6

for the state court judgment. Stanley, 633 F.3d at 859. It is presumed that “[w]hen there has been

7

one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that

8

judgment or rejecting the same claim rest upon the same ground.” Ylst, 501 U.S. at 803. This

9

presumption is, however, rebuttable and can be overcome by strong evidence. Kernan v.

10

Hinojosa, 136 S. Ct. 1603, 1605-1606 (2016). Davis had not yet been decided at the time of the

11

court of appeal’s decision. It makes little sense, then, to conclude that the California Supreme

12

Court invited a habeas petition “on the issue of whether defendant is entitled to relief in light of

13

People v. Davis” only to reject it by adopting the exact reasoning of a decision issued before

14

Davis was handed down. See Resp’t’s Lod. Doc. 22. Even if the California Supreme Court also

15

chose to construe petitioner’s claim as one for instructional error, it may be presumed that it

16

considered whether Davis altered the trajectory of that claim – something the court of appeal was

17

not at liberty to do in 2011. This ‘strong evidence’ overcomes the Ylst ‘look-through’

18

presumption and, therefore, this court interprets the Supreme Court’s denial as a free standing

19

decision on the merits which is entitled to AEDPA deference.

20
21

“Where the state court reaches a decision on the merits but provides no reasoning to
support its conclusion, we independently review the record.” Stanley, 633 F.3d at 860 (internal

22
23
24
25
26
27
28

14

The court notes that more than one year passed between the California Supreme Court’s
rejection of petitioner’s last state habeas petition and the issuance of the findings and
recommendations in this case. The question of whether AEDPA deference was owed in weighing
petitioner’s sufficiency claim was raised in the initial petition. ECF No. 1 at 48-49. Respondent
could have moved to supplement the record on this issue prior to the issuance of the findings and
recommendations.
15

Although petitioner kept the court informed as to the status of his August 2014 petition,
his exhibits took the form of unadorned docket sheets rather than the orders themselves. See ECF
No. 23-1; ECF No. 35-1.
27

1

quotations omitted). Such review is not de novo, “but an independent review of the record is

2

required to determine whether the state court clearly erred in its application of controlling federal

3

law.” Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); see also Richter, 562 U.S. at 98

4

(holding that “determining whether a state court’s decision resulted from an unreasonable legal or

5

factual conclusion does not require that there be an opinion from the state court explaining the

6

state court's reasoning.”). “In such instances the habeas petitioner's burden still must be met by

7

showing there was no reasonable basis for the state court to deny relief.” Stanley, 633 F.3d at

8

860.

9

2. Applicable Legal Standards

10

a.

11

Insufficiency of the Evidence

The Due Process Clause “protects the accused against conviction except upon proof

12

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

13

charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a

14

conviction if, “after viewing the evidence in the light most favorable to the prosecution, any

15

rational trier of fact could have found the essential elements of the crime beyond a reasonable

16

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). See also Juan H. v. Allen, 408 F.3d 1262,

17

1274, 1275 & n. 13 (9th Cir.2005). “[T]he dispositive question under Jackson is ‘whether the

18

record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’” Chein

19

v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). Put another

20

way, “a reviewing court may set aside the jury’s verdict on the ground of insufficient evidence

21

only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, ___ U.S. ___,

22

___, 132 S. Ct. 2, 4 (2011).

23

In conducting federal habeas review of a claim of insufficiency of the evidence, “all

24

evidence must be considered in the light most favorable to the prosecution.” Ngo v. Giurbino,

25

651 F.3d 1112, 1115 (9th Cir. 2011). “A petitioner for a federal writ of habeas corpus faces a

26

heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction

27

on federal due process grounds.” Juan H., 408 F.3d at 1274. The federal habeas court

28

/////
28

1

determines sufficiency of the evidence in reference to the substantive elements of the criminal

2

offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Chein, 373 F.3d at 983.

3
4

b.

Instructional Error

Challenges to state court jury instructions are generally not cognizable on federal habeas

5

review because they concern state law. See Van Pilon v. Reed, 799 F.2d 1332, 1342 (9th Cir.

6

1986) (“Claims that merely challenge the correctness of jury instructions under state law cannot

7

reasonably be construed to allege a deprivation of federal rights.”). A petitioner may obtain

8

federal habeas relief for an erroneous state court jury instruction only where “the ailing

9

instruction by itself so infected the entire trial that the resulting conviction violates due process.”

10

Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The Supreme

11

Court has “defined the category of infractions that violate ‘fundamental fairness’ very narrowly.”

12

Id. at 72-73.

13

Where a reviewing state court determines that an error was harmless pursuant to the

14

standard set out by Chapman v. California, 386 U.S. 18 (1967), a federal court “may not award

15

habeas relief under §2254 unless the harmlessness determination itself was unreasonable.” Davis

16

v. Ayala, 135 S. Ct. 2187, 2199 (2015) (emphasis in original). To show that the determination

17

was unreasonable, petitioner must demonstrate that it “was so lacking in justification that there

18

was an error well understood and comprehended in existing law beyond any possibility of

19

fairminded disagreement.” Id. (internal quotation marks omitted).

20
21

3. Analysis
Based on the foregoing, the court must review this claim through the lens of AEDPA.

22

Accordingly, relief is warranted only if the state court’s adjudication “resulted in a decision that

23

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

24

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

25

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

26

proceeding.” 28 U.S.C. § 2254(d). Given that the California Supreme Court’s silent decision is

27

entitled to deference, the court will begin by analyzing the grounds on which the court of appeal

28

based its denial of petitioner’s claim. Presumably the California Supreme Court could have based
29

1

its denial on similar grounds after considering Davis. Then, the court will consider whether any

2

other reasonable basis existed on which the California Supreme Court could have denied this

3

claim.

4

The court of appeal’s decision to summarily reject petitioner’s sufficiency of the evidence

5

claim and, instead, recast it as an instructional error is deeply troubling. The former, unlike the

6

latter, is not subject to a harmless error analysis. See Jensen v. Clements, 800 F.3d 892, 902 (7th

7

Cir. 2015) (“Time and again, the Supreme Court has emphasized that a harmless-error inquiry is

8

not the same as a review for whether there was sufficient evidence at trial to support a verdict.”).

9

Instead, in evaluating the sufficiency of the evidence, a reviewing court must grant habeas relief

10

if “all rational fact finders would have to conclude that the evidence of guilt fails to establish

11

every element of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

12

(1979). Under that standard, petitioner would have prevailed on this claim insofar as it was

13

undisputed that no evidence whatsoever was presented on the question of whether Ambien

14

qualified as a controlled substance.

15

The Supreme Court has emphasized that sufficiency review addresses “whether the

16

government’s case was so lacking that it should not have even been submitted to the jury.” Burks

17

v. United States, 437 U.S. 1, 16 (1978) (emphasis in original). In Jackson, the Supreme Court

18

held that “the critical inquiry on review of the sufficiency of the evidence to support a criminal

19

conviction must be not simply to determine whether the jury was properly instructed, but to

20

determine whether the record evidence could reasonably support a finding of guilt beyond a

21

reasonable doubt.” 443 U.S. at 319. And, more recently, the Supreme Court confirmed these

22

earlier holdings, noting that “[a]ll that a defendant is entitled to on a sufficiency challenge is for

23

the court to make a ‘legal’ determination whether the evidence was strong enough to reach a jury

24

at all.” Musacchio v. United States, 136 S. Ct. 709, 715 (2016). Thus, whether the jury was

25

properly instructed or not, petitioner was entitled to a determination as to whether any rational

26

finder of fact could have found, based on the evidence at trial, that Ambien was a controlled

27

substance under California law. See id. (“A reviewing court’s limited determination on

28

/////
30

1

sufficiency review thus does not rest on how the jury was instructed.”). Given that no evidence

2

was submitted on this point, the court concludes that no rational finder of fact could have done so.

3
4

This court also finds that, even if the recasting of petitioner’s claim was proper, he would
still be entitled to relief. The trial court instructed jurors that:

5

If you find the defendant guilty of the crime charged in Count 1,
you must then decide whether the People have proved the
additional allegation that the defendant administered a controlled
substance to [the victim] during the commission of that crime.

6
7

To prove this allegation, the People must prove that:

8

(1) In the commission of sex penetration with a foreign object when
victim was unconscious, the defendant administered Ambien to [the
victim];

9
10

AND

11

(2) The defendant did so for the purpose of committing the crime of
sex penetration with a foreign object when victim was unconscious.

12
13

Resp’t’s Lod. Doc. 2 (Clerk’s Transcript Vol. 2) at 443. The only logical reading of this
14
instruction demands that Ambien be categorized ‘a controlled substance.’ The trial court’s
15
instruction automatically equating Ambien with a controlled substance was clearly error. See
16
Hennessy v. Goldsmith, 929 F.2d 511, 514 (9th Cir. 1991) (“Failure to properly instruct the jury
17
regarding an element of the charged crime is a constitutional error that deprives the defendant of
18
due process. . . .”). And such error is subject to the harmless error analysis. See Neder v. United
19
States, 527 U.S. 1, 10 (1999). The harmless error analysis applies even where an instruction
20
impermissibly shifts the burden of proof on an element of the crime. See Rose v. Clark, 478 U.S.
21
570, 580 (1986) (holding that “an instruction that impermissibly shifted the burden of proof on
22

malice -- is not ‘so basic to a fair trial’ that it can never be harmless.”).16 “[T]he test for

23
determining whether a constitutional error is harmless . . . is whether it appears beyond a
24
reasonable doubt that the error complained of did not contribute to the verdict obtained.” Neder,
25
527 U.S. at 15.
26
27
28

16

The court notes that the Supreme Court’s decision in Rose did not explicitly decide
whether the error in that case was actually harmless; it remanded that question to the Court of
Appeals. 478 U.S. at 584.
31

1

The court of appeal concluded that the error in this case was harmless because defendant

2

had conceded or admitted that Ambien was a controlled substance by failing to factor that issue

3

into his theory of the case in any way. Gray, 124 Cal.Rptr.3d at 635. The court of appeal

4

emphasized that both parties argued the case as if Ambien’s status as a controlled substance was a

5

presumed fact. Id. The United States Supreme Court has held that an instructional omission may

6

be deemed harmless in situations where the omission relates to an element of the crime which the

7

defendant admitted. See Connecticut v. Johnson, 460 U.S. 73, 87 (1983) (holding that, where

8

instructions erroneously took the question of intent away from the jury, such error would be

9

harmless “if the defendant conceded the issue of intent.”); see also Carella v. California, 491

10

U.S. 263, 270 (1989) (noting that a conclusive presumption could be harmless “with regard to an

11

element of the crime that the defendant in any case admitted.”) (conc. op. of Scalia, J.). The

12

problem presented here is that the record does not support a conclusion that petitioner conceded

13

the element of the offense at issue.

14

The petitioner never explicitly admitted or stipulated to the fact that Ambien was a

15

controlled substance. Nor did the defense theory of the case which the state court identified – that

16

petitioner had procured Ambien because he had trouble sleeping - implicitly admit Ambien’s

17

status as a controlled substance. To be sure, petitioner’s counsel failed to address this question

18

directly, either by raising the issue at trial or by objecting to the trial court’s erroneous instruction.

19

But it was the burden of the prosecution, not the defense, to address the issue and present

20

evidence to prove this element. It was not defense counsel’s obligation to prove that Ambien was

21

not a controlled substance; it was the prosecution’s burden to prove that it was. Absent some

22

admission of this element on the part of petitioner, the state court’s reasoning amounts to an

23

unconstitutional shifting of the burden of proof. See In re Winship, 397 U.S. 358, 362 (1970)

24

(“[I]t is the duty of the Government to establish . . . guilt beyond a reasonable doubt. This notion -

25

- basic in our law and rightly one of the boasts of a free society -- is a requirement and a

26

safeguard of due process of law in the historic, procedural content of ‘due process.’”) (internal

27

quotation marks omitted)(citing Leland v. Oregon, 343 U.S. 790, 803 (1952) (dis. op. of

28

Frankfurter, J.). The record in this case does not demonstrate an admission, but rather a tripartite
32

1

mistake on the part of the defense, the prosecution, and the trial court. It is apparent that none

2

recognized the necessity of presenting actual evidence to prove this element. Given that the

3

prosecution bore the responsibility of establishing this element beyond a reasonable doubt,

4

however, it seems fundamentally incompatible with due process to punish the defendant for the

5

state’s omission. To do so would, for all practical purposes, misplace the burden of proof and

6

hold defense counsel to a higher standard of performance than the prosecution. Failure to

7

recognize the necessity of proving an essential element could be deemed ‘admission’ for the

8

former and, as occurred in this case at least, a happy mistake for the latter.

9

Next, the court finds that the decision to take judicial notice of the fact that Ambien

10

contains zolpidem was inconsistent with the Supreme Court’s decision in Apprendi v. New Jersey,

11

530 U.S. 466 (2000). Apprendi stands for the proposition that “[o]ther than the fact of a prior

12

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

13

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.

14

Apprendi applies to enhancements like the one at issue here:

15
16

“Merely using the label ‘sentence enhancement’ to describe the
[second act] surely does not provide a principled basis for treating
[the two acts] differently.” Apprendi, 530 U.S. at 476.

17
18
19
20
21
22

The dispositive question, we said, “is one not of form, but of
effect.” Id., at 494. If a State makes an increase in a defendant's
authorized punishment contingent on the finding of a fact, that
fact—no matter how the State labels it—must be found by a jury
beyond a reasonable doubt. See id. at 482-483. A defendant may
not be “expose [d] . . . to a penalty exceeding the maximum he
would receive if punished according to the facts reflected in the jury
verdict alone.” Id. at 483.

23

Ring v. Arizona, 536 U.S. 584, 602 (2002) (citations altered for clarity). Respondent contends

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that any Apprendi error is harmless because “[t]he evidence that Ambien is a controlled substance

25

was uncontested and overwhelming.” ECF No. 15 at 44. The court disagrees. It may be

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apparent from various sources – like the Physicians’ Desk Reference which the court of appeal

27

referred to in this case – that Ambien and zolpidem are equivalent. None of those sources were

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presented to the jury in this case, however, and it cannot be concluded that they decided this issue
33

1

beyond a reasonable doubt. Indeed, as the court of appeal found, they were precluded from

2

considering this issue at all.

3

In light of the finding that the California Supreme Court’s 2014 silent denial of

4

petitioner’s habeas petition was a free standing decision entitled to deference, this court must

5

determine whether there is any other reasonable basis on which to deny relief on this claim. See

6

Himes, 336 F.3d at 853. This requires that the court “vigilantly search for an interpretation of the

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state law question which would avoid attributing constitutional error to the state court. But we

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stop short of adopting an implausible or strained interpretation.” Id. at 854. The court, after

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careful consideration, concludes that there was no other reasonable basis for denying this claim.

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IV. Conclusion
For the foregoing reasons, it is ORDERED that the findings and recommendations issued
on December 20, 2016 (ECF No. 37) are VACATED.
Further, it is RECOMMENDED that petitioner’s application for a writ of habeas corpus

14

be granted on petitioner’s claim that the evidence is insufficient to support the jury’s true finding

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on the enhancement allegation under Cal. Penal Code § 12022.75. The petition should be denied

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in all other respects. Subject to the following exception, proceedings in state court leading to

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retrial on the enhancement allegation should be commenced within 60 days from any order

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adopting this recommendation. However, if either party appeals the judgment in this case, no

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criminal proceedings should be required to commence until 60 days after the issuance of the

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mandate following a final appellate decision or the denial of a petition for writ of certiorari,

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whichever occurs later.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

25

objections with the court and serve a copy on all parties. Such a document should be captioned

26

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

27

shall be served and filed within fourteen days after service of the objections. Failure to file

28

objections within the specified time may waive the right to appeal the District Court’s order.
34

1

Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

2

1991). In his objections petitioner may address whether a certificate of appealability should issue

3

in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

4

Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

5

enters a final order adverse to the applicant).

6

DATED: September 13, 2017.

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