Holsey v. Knipp

Filing 32

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 7/10/14 ORDERING that within 14 days of the filed date of this Findings and Recommendations/Order, petitioner indicate whether he desires counsel to be appointed f or the purpose of presenting and arguing objections; IT is RECOMMENDED that Petitioners application for a writ of habeas corpus be denied; and the District Court issue a certificate of appealability on the two issues referenced above. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEROY DALE HOLSEY,

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No. 2:13-cv-00962-KJM-GGH

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS;
ORDER

WILLIAM KNIPP,
Respondent.

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INTRODUCTION AND SUMMARY
Petitioner is a state prisoner proceeding, through appointed counsel, with a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of failing to update

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his annual sexual offender registration with two prior strikes and was sentenced to a prison term

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of 28 years to life in the Placer County Superior Court. Petitioner challenges his conviction and

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sentence on the following grounds: 1) due process violation by the trial court in instructing the

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jury that forgetting to register by itself was not a defense; 2) ineffective assistance of counsel for

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failure to obtain a pre-guilt phase psychological evaluation of petitioner, failure to obtain a post-

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trial psychological report, and failure to present evidence of petitioner’s mental health problems

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during the guilt phase; 3) violation of Sixth Amendment right to counsel when the trial court

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failed to conduct a Marsden hearing and appoint him new counsel; 4) due process violation by the

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trial court in failing to dismiss petitioner’s prior strikes; and 5) the 28-year-to-life sentence is

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grossly disproportionate to the offense and violates the Eighth Amendment’s prohibition on cruel

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and unusual punishment.
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Upon careful consideration of the record and the applicable law, the undersigned will

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recommend that petitioner’s application for habeas corpus relief be denied.

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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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Introduction

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Defendant was charged with failing to register as a sex offender
within five working days of his birthday. The pattern instruction
for that offense sets forth four elements the People must prove, as
follows: (1) defendant had been convicted of a sex offense
requiring registration; (2) defendant lived at a particular address; (3)
defendant knew he had a duty to register within five working days
of his birthday; and (4) defendant willfully failed to register.
(CALCRIM No. 1170.)

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Defendant had been a sex offender registrant for many years,
registered many times, and twice before was convicted of
registration violations. For tactical reasons, the defense stipulated
he had been convicted of a felony sex offense requiring registration,
and that he lived at an address on Main Street in Roseville. This
left two jury issues, whether or not defendant actually knew he had
to register, and whether his failure to do so was willful.

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Trial Evidence

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Defendant was born on March 20, 1965. Roseville police officers
Rick Fox and Jude Chabot spoke to him at his Main Street
apartment on April 14, 2010. On April 27, 2010, they arrested him.
He told the officers he forgot to register and was waiting for the
police to send him a reminder notice.

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A police department analyst described how the registration records
were kept, and testified all registrations are done in person. At
every registration, the registrant is advised of the duty to re-register
each year within five working days of his (or her) birthday, and the
form has a line so stating, which the registrant must initial before
signing the form. Defendant had registered four times in Roseville,
once as an incoming registrant, once as an annual renewer in 2006,
once due to a return to the area, and finally, on April 2, 2009, when
he moved to Main Street. Each of the four clerks who assisted
defendant to register in Roseville testified and identified the forms
he filled out. Two clerks did not remember him. One testified he
was coherent and responsive. The last clerk, who registered
defendant when he moved to Main Street in 2009, testified she did
not recall anything unusual in his behavior or questions.

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A Department of Justice analyst identified defendant’s statewide
registration file, which indicated he did not register after 2009. The
file reflected registrations dating back to 1986, and that defendant
registered at “CDC,” the former California Department of
Corrections, on October 13, 2002, registered at Atascadero State
Hospital on September 24, 2003, then again registered at CDC on
February 13, 2004. Thus, it shows defendant was in the hospital for
a period of about five months; this five-month period was seven
years before the instant offense.

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Defendant was convicted in 2002 of failing to register, and the jury
was instructed this fact could be used to show he knew of his duty
to register.

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Defendant presented no evidence.

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Jury Arguments

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The People argued defendant knew he had a duty to register
because he had a prior conviction for failing to register, and had
registered many times in the past, including three times as annual
renewals after his birthday, and that he had initialed and signed
multiple forms reflecting this duty. Willfulness was shown because
he knew he had to register, was able to register, but failed to
register, and a person cannot “just sit back, not register, and simply
claim that it wasn’t willful.” “[F]orgetting is simply not a defense.”

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Defense counsel effectively conceded defendant had knowledge of
the registration requirement, and in fact emphasized that he had a
history of registering, but also pointed to evidence in the exhibits
showing defendant had spent time in Atascadero State Hospital, and
argued there was a reasonable doubt about whether the fact he did
not register this time was willful, or due to a mental health problem
leading him to forget, as defendant had told the officers.

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When the prosecutor began to counter the defense argument by
pointing out the lack of evidence of defendant’s mental problems,
defense counsel objected.

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Outside the presence of the jury, the court overruled the objection,
stating “you did argue to the jury that or infer that your client has
mental health issues, yet you didn’t present any evidence of that for
the jury. So I feel that the People can comment on the fact that the
defendant never . . . produced any evidence to demonstrate any
mental health issues.”
When rebuttal resumed, the prosecutor emphasized the meager
evidence of mental health issues, consisting of the fact that about
seven years ago defendant was in a state hospital, and emphasized
that defendant did not act crazily when questioned by the police,
but instead claimed he simply forgot. The prosecutor did not argue
evidence of a mental problem could never negate willfulness or
actual knowledge.
People v. Holsey, 2012 WL 4857576, at **1-2 (Cal. Ct. App. Oct. 15, 2012).
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After petitioner’s judgment of conviction was affirmed by the California Court of Appeal,

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he filed a petition for review in the California Supreme Court. (Resp’t’s Lod. Doc. 8.) The

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Supreme Court summarily denied that petition without comment or citation by order dated

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December 19, 2012. (Resp’t’s Lod. Doc. 9.)

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DISCUSSION

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I. AEDPA Standards

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The statutory limitations of federal courts’ power to issue habeas corpus relief for persons

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in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective

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Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

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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-

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(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

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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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As a preliminary matter, the Supreme Court has recently held and reconfirmed “that §

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2254(d) does not require a state court to give reasons before its decision can be deemed to have

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been ‘adjudicated on the merits.’” Harrington v. Richter, 131 S.Ct. 770, 785 (2011).

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Rather, “when a federal claim has been presented to a state court and the state court has denied

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relief, it may be presumed that the state court adjudicated the claim on the merits in the absence

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of any indication or state-law procedural principles to the contrary.” Id. at 784-785, citing Harris

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v. Reed, 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when

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it is unclear whether a decision appearing to rest on federal grounds was decided on another

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basis). “The presumption may be overcome when there is reason to think some other explanation

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for the state court's decision is more likely.” Id. at 785.

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The Supreme Court has set forth the operative standard for federal habeas review of state

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court decisions under AEDPA as follows: “For purposes of § 2254(d)(1), ‘an unreasonable

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application of federal law is different from an incorrect application of federal law.’” Harrington,

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131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). “A state

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

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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Id. at 786,

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citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004).

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Accordingly, “a habeas court must determine what arguments or theories supported or . . .

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could have supported[] the state court’s decision; and then it must ask whether it is possible

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fairminded jurists could disagree that those arguments or theories are inconsistent with the

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holding in a prior decision of this Court.” Id. “Evaluating whether a rule application was

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unreasonable requires considering the rule’s specificity. The more general the rule, the more

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leeway courts have in reaching outcomes in case-by-case determinations.’” Id. Emphasizing the

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stringency of this standard, which “stops short of imposing a complete bar of federal court

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relitigation of claims already rejected in state court proceedings[,]” the Supreme Court has

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cautioned that “even a strong case for relief does not mean the state court’s contrary conclusion

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was unreasonable.” Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).

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The undersigned also finds that the same deference is paid to the factual determinations of

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state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct

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subject only to a review of the record which demonstrates that the factual finding(s) “resulted in a

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

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presented in the state court proceeding.” It makes no sense to interpret “unreasonable” in §

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2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) – i.e., the

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factual error must be so apparent that “fairminded jurists” examining the same record could not

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abide by the state court factual determination. A petitioner must show clearly and convincingly

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that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct.

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969, 974 (2006).

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The habeas corpus petitioner bears the burden of demonstrating the objectively

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unreasonable nature of the state court decision in light of controlling Supreme Court authority.

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Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002). Specifically, the petitioner “must

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

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

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any possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 786-87. “Clearly

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established” law is law that has been “squarely addressed” by the United States Supreme Court.

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Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of

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settled law to unique situations will not qualify as clearly established. See e.g., Carey v.

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Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state

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sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear

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prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly

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established law when spectators’ conduct is the alleged cause of bias injection). The established

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Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other

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controlling federal law, as opposed to a pronouncement of statutes or rules binding only on

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federal courts. Early v. Packer, 537 U.S. 3, 9, 123 S. Ct. 362, 366 (2002).

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The state courts need not have cited to federal authority, or even have indicated awareness

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of federal authority in arriving at their decision. Early, 537 U.S. at 8, 123 S.Ct. at 365. Where

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the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the

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federal court will independently review the record in adjudication of that issue. “Independent

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review of the record is not de novo review of the constitutional issue, but rather, the only method

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by which we can determine whether a silent state court decision is objectively unreasonable.”

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Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

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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 S.Ct.

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1088, 1091 (2013). However, if the state courts have not adjudicated the merits of the federal

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issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of
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federal law. Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2012).

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II. “Willfulness” Instruction

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A. Background

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At trial, the prosecution moved in limine to have the jury instructed that forgetting to

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register by itself was not a defense to failing to annually update petitioner’s registration. The trial

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court agreed but stated this did not preclude the defense from presenting evidence of substantial

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mental impairment or other reasons that might have impaired his memory. Petitioner’s trial

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counsel objected that the instruction “has a tendency to misdirect the jury away from the willful

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definition.” The prosecution acknowledged that California law allowed a defense based on such a

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deteriorating cognitive ability that a person cannot comply with the registration requirements.

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Resp’t’s Lod. Doc. 7 at 7.

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The trial court instructed the jury with a modified version of CALCRIM NO. 1170, stating

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the People had to prove defendant “actually knew” he had a duty to register and “willfully failed

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to annually update his registration” within five working days of his birthday, stating that wilfully

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meant “willingly or on purpose,” and stating, “[f]orgetting to register by itself is not a defense to a

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charge of willful failure to register.” Resp’t’s Lod. Doc. 7 at 8.

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Petitioner claims that the trial court erred by giving the above-described, modified version

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of CALCRIM NO. 1170 to the jury. Petitioner argues that this instruction: 1) misstated

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California law because People v. Barker, 24 Cal. 4th 345 (2004) and People v. Sorden, 36 Cal.4th

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65 (2005) expressly left undecided whether forgetfulness resulting from a psychological condition

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might negate the willfulness element in a Section 290 violation; and 2) allowed jurors to find

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petitioner guilty even if they believed he forgot to register due to his mental impairments, thereby

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removing an element of the offense that the prosecution had to prove beyond a reasonable doubt.

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The California Court of Appeal rejected petitioner’s claim reasoning as follows:
A defendant must have actual knowledge of the sex offender
registration duties before he or she can be found guilty of having
willfully violated them. (People v. Garcia (2001) 25 Cal.4th 744,
752.) In People v. Barker (2004) 34 Cal.4th 345 (Barker), Barker
claimed he forgot to register, and therefore did not have the
requisite actual knowledge.
The California Supreme Court
disagreed: “Admittedly, the argument that a person cannot be said
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to know something if he or she has forgotten it, for whatever
reason, does have a superficial plausibility. However, . . . [i]t is
simply inconceivable the Legislature intended just forgetting to be a
sufficient excuse for failing to comply with section 290’s
registration requirements.” (Barker, supra, 34 Cal.4th at pp. 356357.) “[C]ountenancing excuses of the sort given by defendant that
he just forgot about his registration obligation ‘would effectively
“eviscerate” the statute[.]’” (Barker, supra, at p. 358.) Barker
declined to address “whether forgetfulness resulting from, for
example, an acute psychological condition, or a chronic deficit of
memory or intelligence might negate the willfulness required[.]”
(Ibid.)

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People v. Sorden (2005) 36 Cal.4th 65 (Sorden) clarified the issue.
Sorden suffered from severe depression, which he claimed made it
difficult for him to remember to register. (Sorden, supra, 36 Cal.4th
at pp. 69-70.) Sorden held that “a defendant charged with violation
of section 290 may present substantial evidence that, because of an
involuntary condition--temporary or permanent, physical or mental-he lacked actual knowledge of his duty to register.” (Sorden,
supra, at p. 72, emphasis added.) Such evidence may negate the
People’s showing of willfulness, provided the mental condition is
sufficient to “nullify[] knowledge of one’s registration obligations.”
(Id. at pp. 69, 73.) “Severe Alzheimer’s disease is one example that
comes to mind; general amnesia induced by severe trauma is
another.” (Id. at p. 69.)

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In Sorden’s case:
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“There is no question but that he knew of his duty to register. He
simply claimed his depression made it more difficult for him to
remember to register. However, life is difficult for everyone. As a
society, we have become increasingly aware of how many of our
fellow citizens must cope with significant physical and mental
disabilities. But cope they do, as best they can, for cope they must.
So, too, must defendant and other sex offenders learn to cope by
taking the necessary measures to remind themselves to discharge
their legally mandated registration requirements. It is simply not
enough for a defendant to assert a selective impairment that
conveniently affects his memory as to registering, but otherwise
leaves him largely functional.” (Sorden, supra, 36 Cal.4th at p. 72.)

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In People v. Bejarano (2009) 180 Cal.App.4th 583 (Bejarano), the
jury was instructed: “‘Only the most disabling conditions may
negate the willfulness element of this offense. Some examples
would be severe Alzheimer’s disease . . . [and] general amnesia
induced by severe trauma. [¶] Severe depression does not excuse a
convicted sex offender from the registration requirements of Penal
Code section 290.’” (Bejarano, supra, 180 Cal.App.4th at p. 589.)
Bejarano claimed he suffered from depression. (Bejarano, supra, at
p. 589.) The Bejarano court agreed the instruction given was
erroneous, but not for the reason stated by Bejarano; instead, it
“omitted the important notion [from Sorden] that the significantly
disabling physical or mental condition had to deprive the defendant
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of knowledge of his duty to register.” (Id. at p. 590.)

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There was no evidence at trial that defendant fit within the Sorden
category of persons whose mental state negates a showing of actual
knowledge of the duty to register. Defendant spent five months at
Atascadero State Hospital, ending in February 2004, seven years
before he violated the registration requirement; notably, he had
successfully registered several times since then. No evidence was
presented at trial about why he was sent to Atascadero, and there
was no evidence he had any hospitalizations--or even any medical
treatment--since his stay at Atascadero ended. Indeed, in the reply
brief defendant concedes he “was a nominally functioning member
of society.”

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A trial court must instruct on a defense “only if substantial evidence
supports the defense.” (People v. Shelmire (2005) 130 Cal.App.4th
1044, 1054-1055.) Because there was no evidence meeting the
Sorden standard, the trial court properly instructed that forgetting
“by itself” was not a defense.
Nor do we accept defendant’s view that the instruction permitted
the jury to convict him even if it found his mental state precluded
actual knowledge. The jury was instructed that, in order to prove
willfulness, the People had to show defendant did something
“willingly or on purpose.” The challenged instruction did not tell
the jury to ignore defendant’s mental state, it merely stated-correctly--that forgetting to register was not “by itself” a defense.
The unrebutted arguments of defense counsel made the defense
theory clear. (See People v. Hughes (2002) 27 Cal.4th 287, 363
[“defense counsel’s unrebutted closing argument . . . emphasized
and ‘pinpointed’ for the jury the defense theory” that intent to rob
was formed after killing].) Although the People vigorously (and
properly) contested whether the facts supported the defense, they
did not challenge its viability.

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In short, the trial court’s instruction that forgetting “by itself” was
not a defense was correct on these facts.
Holsey, 2012 WL 4857576, at **3-5.

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B. Applicable Legal Principles

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A challenge to a jury instruction solely as an error of state law does not state a claim

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cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 71–72, 112

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S.Ct. 475 (1991) (habeas corpus is unavailable for alleged error in the interpretation or

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application of state law); see also Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983);

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Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985). The standard of review for a federal

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habeas court “is limited to deciding whether a conviction violated the Constitution, laws, or

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treaties of the United States.” Estelle, 502 U.S. at 62. In order for error in the state trial
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proceedings to reach the level of a due process violation, the error had to be one involving

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“fundamental fairness.” Id. at 73. The Supreme Court has defined the category of infractions that

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violate fundamental fairness very narrowly. Id.

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In order to establish a due process violation, petitioner must show both a defect in the

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instructions and a “reasonable likelihood” that the jury applied the instruction in a way that

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violates the Constitution, such as relieving the state of its burden of proving every element

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beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S. 179, 190 (2009); see also

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Sandstrom v. Montana, 442 U.S. 510, 520, 99 S.Ct. 2450 (1979); Medley v. Runnels, 506 F.3d

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857, 865-66 (9th Cir. 2007) (en banc) (state law provides elements of a crime, but once elements

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are defined in state law, due process requires that every element be proven beyond a reasonable

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doubt). Petitioner must show that the ailing instruction by itself so infected the entire trial that the

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resulting conviction violates due process. Estelle, 502 U.S. at 72. Additionally, the instruction

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may not be judged in artificial isolation, but must be considered in the context of the instructions

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as a whole and the trial record. Id. The court must evaluate jury instructions in the context of the

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overall charge to the jury as a component of the entire trial process. See United States v. Frady,

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456 U.S. 152, 169, 102 S.Ct. 1584 (1982). Furthermore, even if it is determined that the

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instruction violated the petitioner's right to due process, a petitioner can only obtain relief if the

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unconstitutional instruction had a substantial influence on the conviction and thereby resulted in

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actual prejudice under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710 (1993), which is

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whether the error had substantial and injurious effect or influence in determining the jury's

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verdict. See Hedgpeth v. Pulido, 555 U.S. 57, 61–62, 129 S.Ct. 530 (2008) (per curiam);

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California v. Roy, 519 U.S. 2,6, 117 S.Ct. 337 (1996).

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C. Analysis
1. Exhaustion
As an initial matter, respondent argues that this claim is unexhausted because petitioner

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bases it on new legal theories. In particular, respondent contends that petitioner did not raise the

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following arguments in his petition for review to the California Supreme Court: (1) failing to

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register as a sex offender is not a strict liability crime and requires proof of an intent element; and
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(2) the California Court of Appeal wrongly concluded that no evidence supported a mental

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defense to the element of willfulness.1 Petitioner asserts that this claim is virtually identical to the

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one he presented in his petition for review to the California Supreme Court and that these

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arguments merely supplement his claim.

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The exhaustion of available state remedies is a prerequisite to a federal court's

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consideration of claims presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S.

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509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); 28 U.S.C. § 2254(b); see also Woodford v. Ngo, 548

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U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). A petitioner satisfies the exhaustion

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requirement by providing the highest state court with a full and fair opportunity to consider all

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claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct.

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509, 30 L.Ed.2d 438 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.1985), cert.

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denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986). A petitioner is deemed to have

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exhausted state remedies if he makes a fair presentation of his federal claims to the state courts.

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Peterson v. Lampert, 319 F.3d 1153, 1155–56. Fair presentation requires that a state's highest

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court has “a fair opportunity to consider [an appellant's constitutional claim] and to correct that

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asserted constitutional defect.” Picard, 404 U.S. at 276; see also Hiivala v. Wood, 195 F.3d 1098,

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1106 (9th Cir.1999) (requiring that petitioner “alert” the state courts of the constitutional issues

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that are on appeal).

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The record indicates that petitioner presented his Sandstrom claim, to the state courts,

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alerting them of the constitutional issues that were on appeal. In particular, petitioner argued

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before both the state appellate and supreme court that the jury instruction removed an element the

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prosecution had to prove beyond a reasonable doubt under state and federal law. (Resp’t’s Lod.

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Doc. 4 at 8; Resp’t’s Lod. Doc. 8 at 3.) Accordingly, the court is satisfied that petitioner fairly

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presented his Sandstrom claim to the state courts.

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As part of his claim of instructional error, petitioner also argues that his trial attorney
rendered ineffective assistance by failing to offer evidence to negate the “willfulness” element of
the charge. The undersigned addresses that portion of petitioner’s claim in Section III below.
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2. Petitioner’s Instruction Claim

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It was not reasonably likely that the jury applied the instruction in a way that relieved the

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state of its burden of proving every element of the crime beyond a reasonable doubt. See

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Sarausad, 555 U.S. at 190-91. It is unclear whether failing to re-register as a sex offender on

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one’s birthday is a strict liability crime and therefore does not require a proof of an intent

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element, but simply labeling a crime as “strict liability” does not end the matter.2 Indeed, the

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Ninth Circuit in a similar case has come close to characterizing the registration statute at issue

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here as a strict liability crime:

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Although we independently evaluate federal constitutional claims,
in doing so we are bound by the California courts' interpretations of
California law. See Powell v. Lambert, 357 F.3d 871, 874 (9th
Cir.2004). Accordingly, we follow the Court of Appeal in finding
that violation of the annual registration requirement of §
290(a)(1)(D) alone is “an entirely passive, harmless, and technical
violation of the registration law.” Carmony, 26 Cal.Rptr.3d at
372.FN10

10
11
12
13

Gonzalez v. Duncan, 551 F.3d 875, 885-86 (9th Cir. 2008). The Ninth Circuit also noted:
14
We note that the Carmony court's analysis of that provision
comports with common sense, particularly as applied to the
circumstances of this case. To convict Gonzalez of violating §
290(a)(1)(D), the jury found “beyond a reasonable doubt that the
defendant had actual knowledge of his duty to register annually
within five working days of his birthday and that he knew what act
was required to be performed.” See People v. Garcia, 25 Cal.4th
744, 752, 107 Cal.Rptr.2d 355, 23 P.3d 590 (2001) (“In a case like
this, involving a failure to act, we believe section 290 requires the
defendant to actually know of the duty to act.”). While violation of
§ 290(a)(1)(D) requires “willfulness,” or “actual knowledge of the
duty to register,” id., forgetting to update the registration during the
prescribed five working days after the registrant's birthday is not a
defense. Barker, 34 Cal.4th at 350, 18 Cal.Rptr.3d 260, 96 P.3d 507
(“forgetting the mandatory registration requirement of section 290
is simply not a legitimate defense to the charge of willfully failing
to register”). As a result, it is possible that Gonzalez violated §
290(a)(1)(D) through ordinary negligence by forgetting to register
during the mandated five working day period. Because the record
suggests that Gonzalez made a good faith effort to comply with the
registration law, we find that little or no moral culpability attaches
to his violation of § 290(a)(1)(D).

15
16
17
18
19
20
21
22
23
24
25
26
27
28

2

Neither of the parties address whether a Sorden defense is an affirmative defense wherein
petitioner must proactively prove that his mental impairment objectively prevented petitioner
from registering a timely fashion. Nonetheless, the undersigned presumes that a Sorden
“defense” is not an affirmative defense.
12

1

Id. at 886, n.10; see also Plasencia-Ayala v. Mukasey, 516 F.3d 738, 747 (9th Cir. 2008)

2

(characterizing Nevada’s sex offender registration statute as providing for “strict liability”

3

because a defendant could be convicted “for simply forgetting to register”).3

4

Generally, crimes committed with only ordinary negligence lack sufficient mens rea for

5

due process purposes. However, an exception is malum prohibitum crimes such as public welfare

6

offenses. See the exhaustive analysis on the subject in United States v. Coroba- Huncajie, 825 F.

7

Supp. 485, 496-497 (E.D.N.Y. 1993). A point in Gonzalez was that the type of crime for failure

8

to re-register on one’s birthday was a minor public welfare offense the violation of which

9

subjected one to criminal liability even if no intent were required, i.e., negligence would suffice.

10

Thus, even if California’s statute had no intent requirement, the statute would stand as valid.

11

The trial court instructed the jury as to the elements of failure to update an annual sex

12

offender registration and repeatedly advised that the jury must not only find that the defendant

13

acted or failed to act as required but also that he did so with a particular mental state:

14

The People must prove not only that the defendant did the acts
charged or failed to do a required act, but also that he acted or failed
to act with a particular mental state. The instructions for the crime
of failure to update an annual sex offender registration explains the
mental state required.

15
16
17

(Resp’t’s Lod. Doc. 3 at 221.)

18

The crime charged in this case requires proof of the union or joint
operation of act and wrongful mental state. For you to find a
person guilty of failure to update annual sex offender registration,
that person must not only intentionally commit the prohibited act or
intentionally failed to do the required act, but must do so with a
specific mental state. The act and the specific mental state required
are explained in the instructions for that crime.

19
20
21
22

(Resp’t’s Lod. Doc. 3 at 223-24.)

23

The defendant is charged in Count One with failure to update
annual sex offender registration in violation of Penal Code Section
290.012(a). To prove that the defendant is guilty of this crime, the
People must prove:

24
25

Number 1: The defendant was previously convicted of a felony sex
crime that required him to register.

26
27
28

3

Plasencia-Ayala was overruled on other grounds in Marmolejo-Campos v. Holder, 558 F.3d
903, 911 (9th Cir. 2009) (en banc).
13

1

2. The defendant resided in the city of Roseville in California.

2

3. The defendant actually knew he had a duty to register as a sex
offender living at 332 Main Street, Number 1, and that he knew he
had to register within five working days of his birthday, and

3
4

4. The defendant willfully failed to annually update his registration
as a sex offender with the Roseville Police Department within five
working days of his birthday.

5
6

Someone commits an act willfully when he or she does it willingly
or on purpose. Forgetting to register by itself is not a defense to a
charge of willful failure to register.

7
8

Resp’t’s Lod. Doc. 3 at 227.
Based on its analysis and interpretation of Barker, Sorden, and the facts before the trial

9
10

court, the state appellate court found that the jury instruction on willfulness was correct under

11

California state law. “A state court’s interpretation of state law, including one announced on

12

direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”

13

Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 604 (2005); Gonzalez, 551 F.3d at 885.

14

However, the federal due process issue here is not whether California law was followed, but

15

whether a penal statute which both purports to require intent, but then does not require it, so

16

vitiates the intent requirement as to violate due process. And as Gonzalez pointed out, one could

17

easily theorize a situation where a person was negligently distracted from his obligations such

18

that he could not be said to have acted willfully as that term is known in common language.4

19

There is simply no logical way around the fact that if one does not perform a required act because

20

the requirement is innocently or negligently erased from one’s consciousness for a time, the

21

person “forgets” in common parlance, negligently or without culpability. The added complexity

22

includes the fact that petitioner’s conviction was entirely valid from a due process standpoint

23

without the intent requirement, i.e., a strict liability statute in this context of failing to re-register

24

on one’s birthday is a relatively minor, public welfare offense, Gonzalez, 551 F.3d at 884, and not

25

4

26
27
28

Take, for example, a not so hypothetical situation where a lawyer temporarily “forgets” about a
scheduled hearing because of a protracted, distracting, emergency phone call on another case just
prior to the time to leave for the hearing, causing him to miss the hearing. While the attorney
might be considered negligent for not having an audible alarm to counter such distraction, it is
clear that he did not “willfully” or “on purpose” miss the hearing, i.e., made the conscious
decision to miss the hearing because the phone call was more important.
14

1
2

a due process problem.
Nor does the Sorden “defense” really have anything to do with the willfulness aspect of

3

the California statute. As the state appellate court pointed out, the evidence indicates that

4

petitioner did not fit within the “Sorden category of persons whose mental state negates a

5

showing of actual knowledge of the duty to register.” Holsey, 2012 WL 4857576, at *4

6

(emphasis in original and added). The “defense” encompassing wholly debilitating conditions,

7

whether permanent or temporary, is clearly aimed at that part of the statute which requires an

8

awareness of the duty to register at the required time, i.e., # 3 of the instruction, not the

9

willfulness in failing to register, #4.

10
11
12

In sum, an instruction which requires willful intent, but then essentially provides that mere
negligence is sufficient for conviction, creates a due process ambiguity error.
Nevertheless, the undersigned finds that any error in the “willfulness” ambiguity of this

13

jury instruction was harmless; it did not substantially affect the verdict. Petitioner’s claim that he

14

forgot about the requirement, while at the same time consciously waiting for a reminder of the

15

requirement he “forgot,” is transparently bogus. This is so especially in light of the fact that he

16

was without question aware of his need to reregister on his birthday having done so twice on

17

previous occasions. If the jury found, as it did, that petitioner was aware of his duty to register,

18

there was simply no legitimate evidence of a negligent, temporary forgetting of this duty in the

19

context of this case. The jury would have found that petitioner’s failure to register was willful,

20

“on purpose,” even with the ambiguity present in the instructions.

21
22
23

Accordingly, petitioner’s assertion that the instruction misstated California law is without
merit, and his claim that the challenged instruction was defective must be denied.
Petitioner also argues the court of appeal’s conclusion that the record did not support a

24

Sorden defense was objectively unreasonable and incorrect. In support, petitioner cites his

25

lengthy history of mental illness and instability which include several visits to the Sacramento

26

County Mental Health Treatment Center and a seven-month stay in Atascadero State Hospital

27

from September 2003 to April 2004. Resp’t’s Lod. Doc. 1 at 82-84. On the contrary and again,

28

as the state appellate court pointed out, the evidence indicates that petitioner did not fit within the
15

1

“Sorden category of persons whose mental state negates a showing of actual knowledge of the

2

duty to register.” Holsey, 2012 WL 4857576, at *4. Petitioner had successfully registered

3

several times since February 2004, petitioner’s last hospitalization. When a police officer told

4

petitioner that he had failed to comply with the registration requirement, petitioner replied that he

5

had forgotten and was waiting for a reminder from the Roseville Police Department. Indeed,

6

petitioner never claimed to be ignorant of his duty to register. Resp’t’s Lod. Doc. 3 at 83-84, 91-

7

92, 96-97. Considering the record as a whole, the court of appeal’s conclusion that the evidence

8

did not support a Sorden defense was not objectively unreasonable. 5

9

III.

10

Ineffective Assistance of Counsel
Petitioner claims that he was deprived effective assistance of counsel. He contends that

11

trial counsel was ineffective because he did not obtain a pre-guilt phase psychological evaluation

12

of petitioner, suggesting that this evaluation “could have bolstered” petitioner’s argument that his

13

failure to register was not willful. Petitioner also contends that trial counsel failed to obtain a

14

post-trial psychological report that explored and substantiated petitioner’s claim he forgot to

15

register. Finally, petitioner contends that trial counsel failed to present any evidence of

16

petitioner’s mental health problems during the guilt phase because trial counsel misunderstood

17

the decisions in Barker and Sorden.

18

A. Applicable Legal Principles

19

The test for demonstrating ineffective assistance of counsel is set forth in Strickland v.

20

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a petitioner must show

21

that, considering all the circumstances, counsel's performance fell below an objective standard of

22

reasonableness. Strickland, 466 U.S. at 688. To this end, the petitioner must identify the acts or

23

omissions that are alleged not to have been the result of reasonable professional judgment. Id. at

24

690. The federal court must then determine whether in light of all the circumstances, the

25

identified acts or omissions were outside the wide range of professionally competent assistance.

26

5

27
28

Petitioner does not appear to argue that the trial court erred in failing to give an instruction
on the Sorden defense. Even if he does press this argument, petitioner never claimed to lack
actual knowledge of his duty to register and successfully registered in the past. With these facts,
a Sorden defense would not have helped petitioner despite his history of mental health issues.
16

1

Id. “We strongly presume that counsel's conduct was within the wide range of reasonable

2

assistance, and that he exercised acceptable professional judgment in all significant decisions

3

made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir.1990), citing Strickland, 466 U.S. at 689.

4

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at 693.

5

Prejudice is found where “there is a reasonable probability that, but for counsel's unprofessional

6

errors, the result of the proceeding would have been different. A reasonable probability is a

7

probability sufficient to undermine confidence in the outcome.” Id. “That requires a

8

‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v. Pinholster, 131 S.

9

Ct. 1388, 1403, (2011) quoting Richter, 562 U.S., at ----, 131 S. Ct., at 791.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

The Supreme Court has emphasized the importance of giving deference to trial counsel's
decisions, especially in the AEDPA context:
In Strickland we said that “[j]udicial scrutiny of a counsel's
performance must be highly deferential” and that “every effort
[must] be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and
to evaluate the conduct from counsel's perspective at the time.” 466
U.S., at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 [ ]. Thus, even when a
court is presented with an ineffective-assistance claim not subject to
§ 2254(d)(1) deference, a [petitioner] must overcome the
“presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” Ibid. (quoting Michel
v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83[ ]
(1955)).
For [petitioner] to succeed, however, he must do more than show
that he would have satisfied Strickland's test if his claim were being
analyzed in the first instance, because under § 2254(d)(1), it is not
enough to convince a federal habeas court that, in its independent
judgment, the state-court decision applied Strickland incorrectly.
See Williams, supra, at 411, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed.
398[ ]. Rather, he must show that the [ ]Court of Appeals applied
Strickland to the facts of his case in an objectively unreasonable
manner.
Bell v. Cone, 535 U.S. 685, 698–699, 122 S.Ct. 1843, 1852 (2002).

25

B. Analysis

26

Petitioner raised several instances where trial counsel’s actions should have been

27

different. However, petitioner failed to show that trial counsel’s representation fell below an

28

objective standard of reasonableness and how he was prejudiced by trial counsel’s alleged
17

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

ineffectiveness.
On direct appeal, the state court of appeal denied petitioner’s claim, reasoning as follows:
In a separate but logically connected claim, defendant asserts the
reason evidence supporting a Sorden defense was not presented was
due to defense counsel's ignorance of the law and failure to prepare
for trial. But the record on appeal does not support this contention.
The record shows trial counsel was aware of the defense, which
was discussed on the record before trial, as defendant concedes.
Posttrial, defense counsel stated on the record that “I saw that issue
as being something to be addressed in the Romero motion and at
sentencing more so than at trial, and so that was the reason I
approached that issue the way I did at trial.” This statement does
not mean defense counsel was ignorant of the fact that,
theoretically, a defendant's mental problems could be used both as a
substantive defense to the charge of failure to register and as
mitigation evidence for Romero or sentencing purposes. As we
explained ante, the evidence presented to the jury did not meet the
strict Sorden standard for an “I forgot” defense, and it appears trial
counsel was aware of that fact, which rationally explains why no
Sorden instruction was requested. No incompetence is
demonstrated.
Further, the pretrial Romero motion, which included information
not presented to the jury, did not show defendant lacked an actual
awareness of the duty to register. At best, the evidence available to
defense counsel showed defendant had a history of psychotic
hallucinations (possibly drug-induced) predating his state hospital
release—seven years before the current offense—with four
intervening successful registrations in Roseville. Indeed, when
defendant was questioned upon his arrest, he stated he was waiting
for a reminder from the police. Far from showing a lack of ability to
remember his duty to register, this shows defendant's general
awareness of that duty, and his failure to take steps to satisfy that
duty.
Even two posttrial psychiatric evaluations (which, of course, were
not presented to the jury) did not support a Sorden defense. Before
ruling on the Romero motion, the trial court appointed a
psychiatrist, Dr. Roof, to examine defendant to determine whether
he posed a threat to society. The ensuing report by Dr. Roof noted
defendant's claim that he had been on disability for four years due
to memory loss, but found no evidence of “cognitive impairment”
during the examination. When defense counsel questioned Dr.
Roof's report, the trial court granted a continuance to allow defense
counsel to obtain a second opinion, noting how important the issue
was to the defense.
Dr. Nelson's report found “no evidence to indicate a formal thought
disorder” but did diagnose defendant as psychotic, found his
intellect in the “low average range” and found “some degree of
memory impairment[.]” Dr. Nelson also opined “that the
defendant's reported problems with his memory are genuine and
18

1

could possibly impact his ability to accurately remember his
registration requirements.”

2
The latter opinion of Dr. Nelson edged toward impermissible
diminished capacity evidence. (See People v. Vieira (2005) 35
Cal.4th 264, 292; Bejarano, supra, 180 Cal.App.4th at pp. 588–
589.) In any event, at best for defendant, the opinion shows “a
condition that falls short of nullifying knowledge of one's
registration obligations.” (Sorden, supra, 36 Cal.4th at p. 73.) “It is
simply not enough for a defendant to assert a selective impairment
that conveniently affects his memory as to registering, but
otherwise leaves him largely functional.” (Sorden, supra, at p. 72.)
A condition that Dr. Nelson believed “could possibly impact his
ability to accurately remember his registration requirements” but
otherwise left defendant capable of functioning in society,
registering four times in the recent past, and knowing enough to tell
the arresting officers that he forgot and was waiting for a reminder,
is simply insufficient to successfully assert a defense under the
Sorden standard.

3
4
5
6
7
8
9
10
11
12

Holsey, 2012 WL 4857576, at **5-6.
Petitioner contends that counsel should have had a pretrial psychological evaluation.

13

However, this argument fails because petitioner failed to show what such an evaluation would

14

have produced (except the adverse- to- petitioner post-trial evaluation). Petitioner’s claim that

15

counsel was ineffective for failure to retain an expert also fails because petitioner did not propose

16

an expert that would have testified on his behalf and did not produce what such an expert would

17

have testified about. Finally, petitioner further claims that counsel was ineffective for failure to

18

produce evidence of petitioner’s mental impairments. This claim also fails because petitioner did

19

not identify specific evidence that would have created a reasonable probability of a different

20

result. See United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987).

21

Also and as discussed by the Court of Appeal, petitioner’s claim lacks merit because he is

22

unable to show prejudice pertaining to his conviction for failure to register. The evidence does

23

not support petitioner’s theory that his involuntary mental condition negates the awareness

24

element. Indeed, petitioner appears to concede that the outcome of his trial would not have been

25

different:

26
27
28

Counsel could have argued to the jury that petitioner’s lengthy
history of psychosis, schizophrenia, hospitalizations and
medications affected his memory and rendered his failure to register
“unwillful.” Whether the argument would have been successful [is]
speculative, but it was a factual decision for the jury to decide. Any
19

1

argument that based on his medical and psychiatric history,
petitioner’s failure to register was not willful was better than no
argument at all and the complete forfeiture of any defense
whatsoever.

2
3
4

(Pet.’s Opening Brief at 16.) Petitioner’s mere contention that evidence of his mental limitations

5

might have been successful does not meet the level of prejudice required to prevail—a substantial

6

likelihood of a different result. The Court of Appeals did not apply Strickland in an objectively

7

unreasonable manner. See Bell, 52 U.S. at 699, 122 S.Ct. 1843, 152 L.Ed.2d 914. Therefore,

8

petitioner’s claim of ineffective assistance must be denied.

9

IV.

Sixth Amendment Right to Counsel – Conflict of Interest
At the final sentencing hearing, defense counsel advised the court that petitioner had

10
11

contacted him and indicated a desire to have a new trial. Defense counsel represented that he saw

12

no statutory grounds for a new trial but acknowledged that such a motion could be based on an

13

ineffective assistance of counsel claim. Defense counsel also voiced to the court petitioner’s

14

concerns regarding five areas of dissatisfaction with defense counsel’s representation of him

15

throughout the trial. Petitioner claims that, prior to the sentencing hearing, the trial court should

16

have conducted a Marsden hearing and appointed him new counsel.
The California Court of Appeal rejected petitioner’s claim as follows:

17
18

Defendant contends the trial court erred by not appointing him
conflict-free counsel and by not conducting a Marsden hearing. But
defendant never sought replacement of counsel.

19
20

In People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez), our Supreme
Court held that when a defendant seeks to withdraw a plea because
of incompetence of counsel, “a trial court must conduct ... a
Marsden hearing only when there is at least some clear indication
by the defendant, either personally or through counsel, that the
defendant wants a substitute attorney.” (Sanchez, supra, 53 Cal.4th
at p. 84.) Sanchez quoted an earlier case that arose after a jury trial.
That earlier case, referencing the duty to hold a Marsden hearing,
stated: “We do not necessarily require a proper and formal legal
motion, but at least some clear indication by defendant that he
wants a substitute attorney. The record in this case reveals no such
indication by defendant.” (People v. Lucky (1988) 45 Cal.3d 259,
281, fn. 8, approved by Sanchez, supra, at pp. 87–88, 89–90.)

21
22
23
24
25
26
27

///

28

///
20

1
2
3
4
5

Accordingly, “Statements by the defendant that he or she is
dissatisfied with certain aspects of counsel's handling of the case
absent a request for substitution of counsel [do] not trigger the
court's duty.” (Cal. Judges Benchguides, Benchguide 54, Right to
Counsel Issues (2010) § 54.23, p. 54–25; see People v. Gay (1990)
221 Cal.App.3d 1065, 1070 [Gay moved for a new trial based on
incompetence of counsel but did not ask for new counsel; the
appellate court held: “A trial judge should not be obligated to take
steps toward appointing new counsel where defendant does not
even seek such relief”].)

6
7
8

Here, there was never a “clear indication by the defendant, either
personally or through his current counsel” that defendant wanted a
new attorney. (Sanchez, supra, 53 Cal.4th at p. 84; see id. at pp. 90,
91.) Therefore, the trial court was not required to conduct a
Marsden hearing or appoint new counsel.

9
10
11

Holsey, 2012 WL 4857576, at *7.
The Supreme Court has held that a criminal defendant has a constitutional right to

12

assistance of conflict-free counsel. Strickland, 466 U.S. at 668, 104 S.Ct. 2052. To establish a

13

Sixth Amendment violation based on a conflict of interest, petitioner must show: (1) that his trial

14

counsel actively represented conflicting interests, and (2) that an actual conflict of interest

15

adversely affected his performance. Mannhalt v. Reed, 847 F.2d 576, 579-80 (9th Cir. 1988),

16

citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1719 (1980). “[A]n actual conflict

17

of interest means precisely a conflict that affected counsel’s performance—as opposed to a mere

18

theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152

19

L.Ed.2d 291 (2002).

20

As an initial matter, Petitioner’s claim fails because no Supreme Court decision clearly

21

establishes that a state court must appoint substitute counsel whenever a motion for a new trial

22

rests upon the alleged incompetence of counsel. See Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir.

23

1990) (“[U]nder the law of this circuit, there is no automatic right to a substitution of counsel

24

simply because the defendant informs the trial court that he is dissatisfied with appointed

25

counsel’s performance.”). Petitioner concedes that he “did not expressly request his trial counsel

26

be relieved,” suggesting that the trial court, sua sponte, should have conducted a Marsden hearing

27

or appointed new counsel to assist in his motion for new trial. The Court of Appeals’ denial of

28

this claim was not an unreasonable application of clearly established Supreme Court authority.
21

1

Petitioner cites United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996) as supporting his

2

claim. However, Del Muro is distinguishable because, unlike the instant case, 1) the defendant in

3

Del Muro filed a motion for new trial; and 2) the court held an evidentiary hearing requiring trial

4

counsel to argue Del Muro’s motion. Id. at 1080. The Ninth Circuit held that by forcing trial

5

counsel to prove his own ineffectiveness, “the district court created an inherent conflict of

6

interest,” finding that “[t]here was an actual, irreconcilable conflict between Del Muro and his

7

trial counsel at the hearing.” Id. In this instance, petitioner did not make a motion for new trial

8

nor did the court hold an evidentiary hearing requiring petitioner’s trial counsel to argue the

9

motion. Accordingly the instant case is distinguishable from Del Muro in that there was no

10

actual, irreconcilable conflict between petitioner and his trial counsel by virtue of trial counsel

11

being forced to argue his own ineffectiveness at an evidentiary hearing.

12

In addition, petitioner has failed to demonstrate that an actual conflict otherwise existed

13

between himself and trial counsel, how that asserted conflict adversely affected trial counsel’s

14

work, or that, had trial counsel not been adversely impacted by the conflict, the outcome of his

15

trial might have been different. Again, petitioner has presented no evidence, save for adverse

16

evidence, which would establish that his mental condition was such that he was unaware of his

17

duty to register. Because a mere possibility of a conflict of interest is insufficient to sustain a

18

claim of ineffective assistance of counsel, this claim must be denied. The decision of the

19

California Court of Appeal was not AEDPA unreasonable.

20

V.

21
22
23
24
25
26
27
28

Failure to Dismiss Prior Strike Convictions
Petitioner claims that the trial court abused its discretion in not dismissing petitioner’s

prior strike convictions. The state court of appeal rejected this claim as follows:
A trial court may strike a felony conviction for purposes of
sentencing if and only if the defendant falls outside the spirit of the
Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161
(Williams).) The trial court “must consider whether, in light of the
nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed
outside the scheme's spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th
at p. 161.)
22

1
2
3
4
5

Dismissal of a strike is a departure from the sentencing norm, and,
as such, we may not reverse the denial of a Romero motion unless
the defendant shows the decision was “so irrational or arbitrary that
no reasonable person could agree with it.” (Carmony I, supra, 33
Cal.4th at p. 377.) Reversal is justified where the trial court was
unaware of its discretion or applied improper factors. (Carmony I,
supra, at p. 378.) But where the trial court knew of its discretion,
“‘balanced the relevant facts and reached an impartial decision in
conformity with the spirit of the law, we shall affirm the trial court's
ruling[.]’” (Ibid.)

6
7
8
9
10
11

Here, defendant could be a poster child for the Three Strikes law.
(See Carmony I, supra, 33 Cal.4th at pp. 378–379.) He has a
continuous record of criminality beginning with a burglary at age
17. His first felony was a violent sexual assault in 1985, and in
1995 he flagrantly propositioned a 10–year–old child to suck his
penis. He has been to prison three times, with multiple parole
violations, yet his criminality persists. The present offense,
committed a year after defendant's release from parole, represent's
defendant's third conviction for violating the sex offender
registration laws. He is supported by social security due to his
mental problems. He has no prospects as the record shows.

12
13
14
15
16
17
18

Neither the 1985 or 1992 strikes were remote, because defendant
had an unbroken record of convictions, incarcerations, and parole
violations, since then. (See Williams, supra, 17 Cal.4th at p. 163
[“not significant” that 13 years passed between the prior and current
felony because Williams did not refrain from criminality]; People v.
Gaston (1999) 74 Cal.App.4th 310, 321 [1981 strikes not remote in
light of record that “substantially spanned his entire adult life”].)
Defendant's claim that his crimes were showing “de-escalation”
over time does not change their continuity, nor is the claim
persuasive in any case, in light of Dr. Roof's report—presumably
credited by the trial court over Dr. Nelson's somewhat more
favorable report—that defendant presents a “high relative risk” of
reoffense.

19
20
21
22
23

Defendant's reliance on People v. Cluff (2001) 87 Cal.App.4th 991
(Cluff) is unpersuasive. Defendant emphasizes that he had not
moved from his last registration address, and therefore the current
offense is a mere “technical” violation as in Cluff. In Cluff, the
trial court drew the factually unsupported conclusion that Cluff had
obscured where he could be found, although he was living at his
last registered address, therefore the appellate court remanded for a
new Romero hearing. (Cluff, supra, 87 Cal.App.4th at pp. 1001–
1004.)

24
25
26
27
28

Cluff does not support the proposition that a mere “technical”
nature of a violation of the registration laws brings a person outside
the spirit of the Three Strikes law. In Carmony I, our Supreme
Court upheld the denial of a Romero motion for a registrant whose
current offense was failing to update a registration, but who had not
changed his residence since his last registration. (Carmony I, supra,
33 Cal.4th at pp. 379–380.) There, the court emphasized the
narrowness of Cluff: “Unlike the trial court in Cluff, which relied
23

1

on a factor—the defendant's intentional obfuscation of his
whereabouts— allegedly unsupported by the record, the trial court
in this case refused to strike defendant's prior convictions based on
factors allowed under the law and fully supported by the record.”
(Carmony I, supra, at p. 379.) Therefore, Cluff does not assist
defendant in this case.

2
3
4

The bulk of defendant's Romero briefing invites us to reweigh
relevant factors, and contends the trial court should have given
more or less weight to particular points. But we may not reverse the
denial of a Romero motion unless the decision was “so irrational or
arbitrary that no reasonable person could agree with it.” (Carmony
I, supra, 33 Cal.4th at p. 377.) Given defendant's record, we
certainly cannot say the trial court erred in declining to find
defendant fell outside the spirit of the Three Strikes law.

5
6
7
8
9

Holsey, 2012 WL 4857576, at **9-11.
Petitioner does not allege that the sentence he challenges was imposed under an invalid

10
11

statute or that it was in excess of that actually permitted under state law.6 Cf. Marzano v.

12

Kincheloe, 915 F.2d 549, 552 (9th Cir.1990) (due process violation found where the petitioner's

13

sentence of life imprisonment without the possibility of parole could not be constitutionally

14

imposed under the state statute upon which the conviction was based); see also Makal v. State of

15

Arizona, 544 F.2d 1030, 1035 (9th Cir.1976) (So long as a sentence imposed by a state court “is

16

not based on any proscribed federal grounds such as being cruel and unusual, racially or

17

ethnically motivated, or enhanced by indigency, the penalties for violation of state statutes are

18

matters of state concern.”). Rather, petitioner merely claims that the trial court abused its

19

discretion under state law in denying his Romero motion and erred in its application of state

20

sentencing law. Absent fundamental unfairness, federal habeas corpus relief is not available for a

21

state court's misapplication of its own sentencing laws. Estelle, 502 U.S. at 67; Middleton v.

22

Cupp, 768 F.2d 1080, 1085 (1986); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir.1994) (federal

23

habeas relief unavailable for claim that state court improperly relied upon a prior federal offense

24

to enhance punishment); Miller v. Vasquez, 868 F.2d 1116, 1118–19 (9th Cir.1989) (claim that a

25

prior conviction was not a “serious felony” under California sentencing law not cognizable in

26

federal habeas proceeding). To state a cognizable claim for federal habeas corpus relief based on

27
28

6

The undersigned addresses petitioner’s cruel and unusual punishment claim in Section VI
below.
24

1

an alleged state sentencing error, a petitioner must show that the alleged sentencing error was “so

2

arbitrary or capricious as to constitute an independent due process” violation. Richmond v.

3

Lewis, 506 U.S. 40, 50, 113 S.Ct. 528 (1992).

4

Petitioner cannot show that the state sentencing court's decision was arbitrary or

5

capricious. The sentencing judge declined to strike petitioner's prior convictions for purposes of

6

sentencing after thoroughly considering the relevant circumstances and applicable state

7

sentencing law. The state appellate court, in turn, also carefully considered those factors in

8

rejecting petitioner's contention on appeal that the sentencing court abused its discretion under

9

state law. Under these circumstances, petitioner fails to demonstrate an independent due process

10

violation and the state courts' rejection of petitioner's Romero claim is not contrary to, or an

11

unreasonable application of federal law. See Haller v. Biter, No. 2:10–cv–3446 WBS DAD P,

12

2012 WL 3764045, at * 19 (E.D.Cal. Aug. 29, 2012) (the decision of state courts with respect to

13

petitioner's Romero claim under state law was not contrary to or an unreasonable application of

14

federal law); Mercadel v. Trimble, No. CV 12–0234–ODW (VBK), 2012 WL 4349313, at *8

15

(C.D.Cal. Aug.29, 2012) (“[A] claim that the state court erred by refusing to grant Petitioner's

16

Romero motion and striking one of Petitioner's prior strikes only concerns state sentencing law

17

and does not implicate a federal constitutional right.” [citations omitted]). Accordingly, petitioner

18

is not entitled to federal habeas relief with respect to this claim.

19

VI.

Eighth Amendment – Cruel and Unusual Punishment

20

Petitioner claims that the 28-year-to-life sentence he received is grossly disproportionate

21

to the offense of failing to update his annual sexual offender registration and violates the Eighth

22

Amendment’s prohibition on cruel and unusual punishment. The state court of appeal rejected

23

petitioner’s claim, reasoning as follows:

24
25
26
27
28

We also reject defendant's
unconstitutionally cruel.

contention

that

his

sentence

is

Generally speaking, for state law purposes, a sentence is too harsh if it
is “so disproportionate to the crime that it ‘shocks the conscience’ in
light of the defendant's history and the seriousness of his offenses.”
(People v. Nichols (2009) 176 Cal.App.4th 428, 435 (Nichols).)
Generally, for federal purposes, a sentence is too harsh if it is found to
be grossly disproportionate “by weighing the crime and defendant's
25

1

sentence ‘in light of the harm caused or threatened to the victim or
society, and the culpability of the offender.’” (Ibid.)

2
1. Carmony II
3
4
5

In Carmony II, this court found a Three Strikes sentence of 25 years to
life violated both state and federal constitutional norms where Carmony
failed to register within five days of his birthday but had not moved
since his last registration, and where Carmony had evidently turned his
life around.

6
7
8
9
10
11
12
13

In Carmony II, we noted that the defendant had committed no further
sex offenses since his original 1983 sexual offense, had committed no
serious or violent offenses since 1992, had “no tendency to commit
additional offenses that pose a threat to public safety,” and “was acting
in a responsible manner” in that he had married, participated in alcohol
classes, was employed, and did not pose “a serious risk of harm to the
public justifying a life sentence.” (Carmony II, supra, 127 Cal.App.4th
at pp. 1073, 1080–1081, 1087–1088.)
In contrast, in the instant case, defendant persisted in committing
sexual and other offenses, has two prior registration convictions, is
unemployed, and has neither stable relationships nor discernible
prospects. Critically, as the trial court found, unlike the defendant in
Carmony II, here defendant presents a high danger of sexual re-offense
and therefore is a threat to society.

14

19

Because defendant's personal history sharply differs from that of
Carmony's, in that he has not rehabilitated himself and presents a
danger to society, we agree with the trial court that Carmony II does
not govern this case. The sentence is not “so disproportionate to the
crime that it ‘shocks the conscience’ in light of the defendant's history
and the seriousness of his offenses.” (Nichols, supra, 126
Cal.App.4th at p. 435.) Nor can we find the sentence grossly
disproportionate “by weighing the crime and defendant's sentence ‘in
light of the harm caused or threatened to ... society [.]’ ” (Nichols,
supra, at p. 435, emphasis added.)

20

2. Ninth Circuit cases

21

Apart from his reliance on Carmony II, defendant also relies on three
Ninth Circuit decisions to support his Eighth Amendment claim. We
are not bound by these decisions. (See People v. Crittenden (1994) 9
Cal.4th 83, 120, fn. 3.) Further, we find them distinguishable.

15
16
17
18

22
23
24
25
26
27
28

In Ramirez v. Castro (9th Cir.2004) 365 F.3d 755 (Ramirez), both of
the defendant's strikes were nonviolent robberies arising from shoplifts,
and the current offense was a petty theft (shoplift of a VCR) with a
prior theft conviction; the strikes jointly resulted in a single county jail
sentence, Ramirez displayed no further criminality until the VCR
shoplift, and he presented evidence of rehabilitation. (Ramirez, supra,
365 F.3d at pp. 756–759, 761, 768–769.) In marked contrast to the
defendant in Ramirez, here defendant's strikes were forcible oral
copulation and second degree robbery, he has served three prior prison
terms, he has not demonstrated reform, and he remains a danger to
26

1

society.

2

In Reyes v. Brown (9th Cir. 2005) 399 F.3d 964 (Reyes), the
defendant's prior strikes were residential burglary (committed at age 17
in 1981, resulting in a commitment to the former CYA) and a 1987
armed robbery (resulting in a prison sentence); the current offense
(committed in 1997) was perjury on a driver's license application.
(Reyes, supra, 399 F.3d at pp. 965–966, 968.) The Ninth Circuit held
Reyes would be eligible for relief on habeas corpus unless the armed
robbery “was a ‘crime against a person’ or involved violence” so as to
justify a Three Strikes sentence, and remanded so the nature of that
robbery could be sufficiently developed. (Reyes, supra, at pp. 969–
970.) We agree with the dissent, which concluded the majority unduly
minimized the fact Reyes's conviction was for armed robbery, that he
had been sent to prison, and that he was a career criminal. (Id. at pp.
970–972 [dis. opn. of Tallman, J.].) Further, here defendant used a
knife in his 1985 strike, has served three prior prison terms, is a career
criminal, and poses a high danger of sexual reoffense. Even were we to
agree with the majority, here defendant's case is distinguishable from
the defendant in Reyes.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

The Ninth Circuit decision cited by defendant which is most
comparable to the instant case is Gonzalez v. Duncan (9th Cir.2008)
551 F.3d 875 (Gonzalez). Gonzalez, like defendant, failed to update his
sex offender registration but had not moved, and received a sentence of
28 years to life, based on two prior strikes and three prior prison terms.
(Gonzalez, supra, 551 F.3d at pp. 878–879.) The court concluded that
despite Gonzalez's criminal history, there was “no evidence that, as of
2001 [i.e., at the time of his current offense], Gonzalez was a
recidivist” and that “Gonzalez's present offense does not reveal any
propensity to recidivate.” (Gonzalez, supra, at pp. 886–887.)

19

We need not decide whether we agree with the holding in Gonzalez, as
we agree with the trial court that Gonzalez is distinguishable for the
same reasons we distinguished Carmony II: Here, viewed in support of
the trial court's sentencing findings, the record shows defendant
presents a continuing threat to society.

20

Accordingly, we reject the cruel punishment claims.

18

21

Holsey, 2012 WL 4857576, at **11-13.

22

A. Applicable Legal Principles

23

The United States Supreme Court has held that the Eighth Amendment includes a “narrow

24

proportionality principle” that applies to terms of imprisonment. See Harmelin v. Michigan, 501

25

U.S. 957, 996, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); see also

26

Taylor v. Lewis, 460 F.3d 1093, 1097 (9th Cir. 2006). However, successful challenges in federal

27

court to the proportionality of particular sentences are “exceedingly rare.” Solem v. Helm, 463

28

U.S. 277, 289-90, 103 S. Ct. 3001, 77 L.Ed.2d 637 (1983); see also Ramirez v. Castro, 365 F.3d
27

1

755, 775 (9th Cir. 2004). “The Eighth Amendment does not require strict proportionality

2

between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly

3

disproportionate’ to the crime.” Ewing v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 155

4

L.Ed.2d 108 (2003) (quoting Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring)); see also

5

Lockyer, 538 U.S. at 73 (in addressing an Eighth Amendment challenge to a prison sentence, the

6

“only relevant clearly established law amenable to the ‘contrary to’ or ‘unreasonable application

7

of’ framework is the gross disproportionality principle”).

8

In assessing the compliance of a non-capital sentence with the proportionality principle, a

9

reviewing court must consider “objective factors” to the extent possible. Solem, 463 U.S. at 290.

10

Foremost among these factors are the severity of the penalty imposed and the gravity of the

11

offense. Id. at 290-91. If “a threshold comparison of the crime committed and the sentence

12

imposed leads to an inference of gross disproportionality,” the reviewing court should compare

13

the sentence with sentences imposed on other criminals in the same jurisdiction and for the same

14

crime in other jurisdictions. Harmelin, 501 U.S. at 1005. “Comparisons among offenses can be

15

made in light of, among other things, the harm caused or threatened to the victim or society, the

16

culpability of the offender, and the absolute magnitude of the crime.” Taylor, 460 F.3d at 1098.

17

If a comparison of the crime and the sentence does not give rise to an inference of gross

18

disproportionality, a comparative analysis is unnecessary. Id.

19

B. Analysis

20

This is a close case. However, the undersigned finds that the Court of Appeal’s

21

determination: that petitioner’s sentence does not fall within the type of “exceedingly rare”

22

circumstance that would support a finding that his sentence violates the Eighth Amendment, is

23

not an unreasonable application of Supreme Court authority. As the Court of Appeal mentioned,

24

petitioner is a recidivist—a continuing threat to society as evidenced by his long criminal history:

25

The probation reports and other material presented to the trial court
shows defendant’s criminal past began in 1982 with a misdemeanor
burglary conviction. Defendant spent time in the former California
Youth Authority on two separate occasions. This was followed by
two misdemeanors before his first felony conviction, in 1985, for
oral copulation by force—his first strike. The facts show he
forcibly orally copulated a woman in a bar, threatening to kill her
28

26
27
28

1
2
3
4
5
6

with a knife. In 1992, defendant suffered his second strike, for
second degree robbery, wherein defendant and his cohort grabbed a
gold chain from the victim’s neck, then fled. Also in 1992,
defendant suffered a misdemeanor sex offender registration
conviction. For his 1995 misdemeanor child annoyance conviction
(Pen. Code, § 647.6) defendant pulled his pants down and told a 10year-old child, “‘I’m going to make you suck my dick just like an
ice cream, just like all the other kids did[.]’” In 2002, he picked up
a felony sex offender registration conviction. He served prison
terms for the 1985 sex offense, the 1992 robbery, and the 2002 sex
registration offense, with multiple parole violations. He was
released from parole just over a year before the instant offense.

7
8
9

Holsey, 2012 WL 4857576, at *8.
Petitioner contends that Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008) is

10

indistinguishable from the instant case and thus controls. In Gonzalez, the defendant was

11

convicted of failing to update his annual sex offender registration. Id. at 878. He had three prior

12

serious or violent felony convictions, which included convictions for cocaine possession,

13

committing a lewd act with a child under 14 years of age, attempted rape by force, and a second-

14

degree robbery. Id. The Ninth Circuit weighed Gonzalez’s criminal offense “‘in light of the

15

harm caused or threatened to the victim or to society, and the culpability of [Gonzalez].’” Id. at

16

884 (quoting Helm, 463 U.S. at 292, 103 S.Ct. 3001). In doing so, the Ninth Circuit explained:

17
18
19
20
21
22

[California Penal Code] § 290(a)(1)(D)’s annual registration
requirement, which Gonzalez was convicted of violating, is only
tangentially related to the state’s interest in ensuring that sex
offenders are available for police surveillance. Annual registration
is merely a “backup measure to ensure that authorities have current
accurate information.” People v. Carmony, 127 Cal. App. 4th
1066, 26 Cal. Rptr. 3d 365 (2005). Failure to comply with the
annual registration is “the most technical violation of the section
290 registration requirement,” and “by itself, pose[s] no danger to
society.” People v. Cluff, 87 Cal. App. 4th 991, 105 Cal. Rptr. 2d
80, 81, 86 (2001).

23

Id. The Ninth Circuit concluded that Gonzalez’s sentence of 28 years to life was “‘harsh . . .

24

beyond any dispute.’” Id. at 886, quoting Ramirez, 365 F.3d at 767. However, the Ninth Circuit

25

recognized that “California has a valid ‘public-safety interest in incapacitating and deterring

26

recidivist felons,’” and thus considered Gonzalez’s criminal history and his recidivism. Id.

27

(quoting Ewing, 538 U.S. at 29, 123 S.Ct. 1179 (opinion of O’Connor, J.)). It is at this point

28

where the similarities between Gonzalez and petitioner may end. As of the date of his conviction,
29

1

the Ninth Circuit found no evidence that Gonzalez was a recidivist. Id. at 887. On the contrary

2

and as the California Court of Appeal noted, petitioner has two prior registration convictions, in

3

1992 and 2002, and several parole violations, the most recent occurring in January 2009.

4

Resp’t’s Lod. Doc. 3 at 402-05. His most recent stay in custody ended in March 8, 2009.

5

Resp’t’s Lod. Doc. 3 at 405. Accordingly, unlike Gonzalez, there is evidence that petitioner was

6

a recent recidivist.

7

Unlike the Court of Appeal which may have rested its decision part on petitioner’s mental

8

condition per se, the undersigned expressly notes that he does not rely on petitioner’s “mental

9

instability” as a factor in recommending denial of petitioner’s claim.7 Such reliance comes close

10

to running afoul of the Supreme Court’s decision in Robinson v. California, 370 U.S. 660, 82

11

S.Ct. 1417 (1962)—that “a defendant may not be convicted of a crime by showing that he or she

12

has a particular forbidden status.” United States v. Kidder, 869 F.2d 1328, 1332 (9th Cir. 1989).

13

However, if a statute punishes a defendant’s act as opposed to his status, there is no violation of

14

Robinson. See e.g., Powell v. Texas, 392 U.S. 514, 533, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968)

15

(defendant punished for being drunk in public, not for his status as a chronic alcoholic); Budd v.

16

Madigan, 418 F.2d 1032, 1034 (9th Cir. 1969) (Robinson has no application to public

17

drunkenness because defendant was punished for his acts, and not simply because he was an

18

alcoholic). In this instance, petitioner was punished for his willful failure to update his annual sex

19

offender registration, not for his mental impairments. In distinguishing Gonzalez and Carmony

20

II, the state appellate court concluded that petitioner posed a high risk of danger to society based

21

on petitioner’s criminal background and his psychiatric evaluations. Holsey, 2012 WL 4857576,

22

at *12. Petitioner’s psychiatric history included a diagnosis of antisocial personality disorder,

23

alcohol abuse, amphetamine abuse, psychotic disorder, and learning disorder. Id. at *9.

24

Indefinite, involuntary commitment because one’s mental condition predisposes him to commit

25

crimes is only permitted for treatment not punishment purposes. Kansas v. Hendricks, 521 U.S.

26

346, 117 S.Ct. 2072 (1997). As such, the Court of Appeal may have sustained the punishment in

27
28

7

Neither party briefed this issued.
30

1

this case in part because the mental condition of petitioner predisposed him to commit further

2

crimes. In an abundance of caution, the undersigned reiterates that his recommendation is based

3

on petitioner’s criminal background and his recidivism, not his mental impairments or psychiatric

4

history.

5

If the undersigned were reviewing this issue de novo, he might find that the Eighth

6

Amendment was violated primarily because of the relatively non-serious nature of the underlying

7

crime. Nonetheless, the state appellate court’s rejection of petitioner’s Eighth Amendment claim

8

was not an unreasonable application of the gross disproportionality standard under well-

9

established Supreme Court authority. Accordingly, petitioner is not entitled to federal habeas

10

relief with respect to his claim that his sentence constituted cruel and unusual punishment in

11

violation of the Eighth Amendment.

12

CONCLUSION

13

For all the foregoing reasons, the petition should be denied. Pursuant to Rule 11 of the

14

Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of

15

appealability when it enters a final order adverse to the applicant. A certificate of appealability

16

may issue only “if the applicant has made a substantial showing of the denial of a constitution

17

right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations,

18

a substantial showing of the denial of a constitutional right has been made in this case on the

19

“willfulness” jury instruction issue and the Eighth Amendment disproportionate punishment

20

issue.

21

Accordingly,

22

IT IS HEREBY ORDERED that within fourteen (14) days of the filed date of this

23

Findings and Recommendations/Order, petitioner indicate whether he desires counsel to be

24

appointed for the purpose of presenting and arguing objections;

25

IT IS HEREBY RECOMMENDED that:

26

1. Petitioner’s application for a writ of habeas corpus be denied; and

27

2. The District Court issue a certificate of appealability on the two issues referenced

28

above.
31

1

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

2

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days

3

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

4

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

5

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

6

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

7

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

8

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

9

Dated: July 10, 2014

10

/s/ Gregory G. Hollows

11

UNITED STATES MAGISTRATE JUDGE

12
13

GGH:076

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