McCall v. Beard

Filing 29

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 1/13/2017 ORDERING the Writ of Habeas Corpus is DENIED. ORDERING the Court DECLINES to issue a Certificate of Appealability. Any further request for a COA must be addressed to the Ninth Circuit Court of Appeals. (Washington, S)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ARTHUR MCCALL,
Petitioner,
vs.

No. 2:16-cv-0329-JKS
MEMORANDUM DECISION

DAVID BAUGHMAN, Acting Warden,
California State Prison-Sacramento,1
Respondent.
Arthur McCall, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas
Corpus with this Court pursuant to 28 U.S.C. § 2254. McCall is in the custody of the California
Department of Corrections and Rehabilitation and incarcerated at California State PrisonSacramento. Respondent has answered, and McCall has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On January 28, 2011, McCall was charged with the murder of Jonah Simms. The felony
complaint also alleged that McCall used and intentionally and personally discharged a firearm
and proximately caused great bodily injury or death. It further alleged that McCall committed
the offense for the benefit of, at the direction of, or in association with a criminal street gang
with the specific intent to promote, further, and assist in criminal conduct by gang members.
McCall pleaded not guilty and denied the allegations. On November 8, 2011, McCall proceeded

David Baughman, Acting Warden, California State Prison-Sacramento, is
substituted for Jeffrey Beard, former Secretary, California Department of Corrections and
Rehabilitation. FED. R. CIV. P. 25(c); Rule 2(a), Rules Governing Section 2254 Cases in the
United States District Courts; Stanley v. Cal. Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
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to a jury trial. On direct appeal of his conviction, the California Court of Appeal recounted the
following facts underlying the charge against McCall and the evidence presented at his trial:
Events Prior to the Shooting
On November 21, 2008, Shaniece Hill drove her boyfriend, Jonah Simms (with
whom she had just argued; and the victim here), and Simms’s friend, David Loria
(Loria), to a two-story apartment complex on Bowles Street in Sacramento, dropping
them off around 8:00 or 9:00 p.m.
Once dropped off, Simms called a friend to retrieve him and Loria. When the
friend returned Simms’s call for directions, she heard “Nigga, I’m just saying” in the
background; the phone hung up, and no one answered when the friend made further calls.
Louanne Bower, a resident of the Cancun Apartments on Bowles Street, was
returning to her apartment on the evening of November 21, 2008, when she saw several
people outside the complex and defendant in the bushes outside the Cancun apartment of
his girlfriend.
The Shooting
Bower, about five or 10 minutes after she got inside her apartment, heard six or
seven gunshots. When Bower and her roommate went outside to see what happened,
Toni Morgan (Morgan), [McCall’s] girlfriend, called them over and asked them to hide
some bullets for her.2 Bower and her roommate refused; Bower was on parole at the
time.
Morgan admitted to law enforcement that, after the shooting, she got rid of some
bullets in her apartment. At trial, she testified she did not remember anything about the
night of the shooting or about what she told law enforcement; at trial (in November
2011), she still considered herself [McCall’s] girlfriend. Detective Bryce Heinlein, the
investigating officer in this case, testified that Morgan told him she first tried to give the
bullets to a female apartment neighbor, who refused; then she put them under a nearby
bush—the bullets were gold-colored, but she did not know the caliber.
Loria, the victim Simms’s friend, testified that, at the time of the shooting, he and
Simms were Nogales Gangster Crips. As for the shooting, after the two of them were
dropped off by Hill, Simms was on the phone until they reached the Cancun Apartments.
While on the phone, Simms was loud, mad and saying “cuz” a lot; “cuz” means “dude” in
Crip lingo, but is offensive if spoken to a Blood gang member one does not know. Loria
knew the area was more Blood territory than Crips.
While Loria and Simms were walking, a man approached Loria with his hand in
his pocket. Loria touched the man’s chest to get past. After getting off the phone,
Simms confronted the man; words were exchanged; and then the man shot Simms. More
than one shot was fired. Loria was inconsistent regarding his description of the assailant
and regarding his cooperation with the police; testifying for the defense at trial, he
acknowledged testifying at the preliminary hearing that [McCall] was not the shooter.

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Simms died of two gunshot wounds to the chest. The bullets were
copper-jacketed “[n]ominal .32 caliber,” a caliber description that describes a whole
family of cartridges that share the same basic bullet diameter.
The McCulloch Set of Witnesses
Doris McCulloch (McCulloch) lived at the Cancun Apartments with her sons,
Kenneth Rochelle (Rochelle) and Michael Wiley (Wiley), and her longtime boyfriend,
Avery Kennedy (Kennedy). McCulloch’s daughter, Tashawana Wiley (Tashawana), also
lived at the complex, in a different apartment, along with her boyfriend, Deandre Zachary
(Zachary), and their child.
About a year after the shooting, during a police search in December 2009,
Zachary was arrested on a drug sale charge, Wiley was arrested on an outstanding
warrant, and Tashawana was cited for misdemeanor child endangerment.
After being arrested, Zachary told the police he had information about the
November 21, 2008 homicide at the Cancun Apartments. After Zachary informed
Detective Heinlein that the officer really needed to talk to someone else, Heinlein
questioned Rochelle.
During Detective Heinlein’s initial questioning, the 16–year–old Rochelle was
uncooperative and seemed dishonest. Heinlein then had Zachary, who was 29 years old,
join them and tell Rochelle it was okay to tell the truth. Once Zachary was present,
Rochelle explained to Heinlein that [McCall], on the night of the shooting, was outside
the apartment complex when Rochelle arrived home.FN3 [McCall] told Rochelle that he
had “got into it with somebody,” and that he was waiting for them to walk past; when the
two of them did, defendant followed them. Just after [McCall] walked off into the
parking lot and approached the two, Rochelle heard three or four gunshots. With
Zachary’s prodding, Rochelle identified [McCall] from a photo lineup as the shooter,
although he did not see the actual moment of firing.
FN3. Part of Detective Heinlein’s interview of Rochelle, when Zachary was
present, was recorded, transcribed, and played for the jury.
At trial, Rochelle claimed this account to Detective Heinlein was false, and that
Zachary had pressured him to say this to protect Zachary’s girlfriend and Rochelle’s
sister, Tashawana.
Wiley told Detective Heinlein, in a videotaped and transcribed interview played
for the jury, that after he (Wiley) heard two gunshots, Rochelle returned to the
McCulloch apartment and stated that [McCall] “just shot [a] dude” for bumping into
[McCall] and saying “cuz.” Apparently, after the “cuz” statements, [McCall] went to his
apartment, got a gun, and then shot the victim. Wiley informed Heinlein that [McCall]
was affiliated with the Oak Park Bloods.
At trial, Wiley testified that whatever he told law enforcement was just to help his
sister, Tashawana, and that Zachary told him what lies to say.

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Kennedy, McCulloch’s boyfriend, told Detective Heinlein that, two days before
the shooting, he bought some bullets for [McCall], and [McCall] gave him $20 for his
efforts; Heinlein determined that Kennedy had purchased .32–caliber bullets.
The McCulloch set of witnesses—Rochelle, Wiley, and Kennedy—testified under
a grant of use immunity.
Gang Expert Testimony
A detective gang expert opined that [McCall] was a member of the Oak Park
Bloods, that Simms was a member of the Nogales Gangster Crips, and that this homicide
was committed for the benefit of the Oak Park Bloods.
People v. McCall, No. C071012, 2013 WL 4510572, at *1-3 (Cal. Ct. App. Aug. 23, 2013).
At the conclusion of trial, the jury found McCall guilty of first-degree murder and found
true the firearm and gang enhancements. The trial court subsequently sentenced McCall to state
prison for terms of 25 years to life for first-degree murder, an additional 25 years to life for the
firearm enhancement, and an additional 10 years for the gang enhancement.
Through counsel, McCall appealed his conviction, arguing that: 1) the admission of
Rochelle’s videotaped interview violated his confrontation rights; 2) the admission of the
interview violated his due process right to a fair trial; 3) the court erred by not holding a hearing
to question whether jurors regarding an alleged statement by a juror that McCall was “guilty as
sin;” 4) the trial court erred in denying the defense’s motion for juror identifying information to
investigate McCall’s claim that the prosecutor wrongfully invoked sympathy and influenced the
jury’s deliberations by her conduct toward the victim’s mother; 5) the trial court erred in
imposing the 10-year term for the gang enhancement; and 6) there was insufficient evidence in
the record to support that McCall had the ability to pay the main jail booking and classification
fees. Respondent agreed that the 10-year sentence imposed for the gang enhancement should be
stricken but other opposed the appeal. On August 23, 2013, the Court of Appeal issued an
unpublished, reasoned opinion unanimously correcting the judgment to strike the 10-year gang
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enhancement but otherwise affirming the judgment in all other respects. McCall, 2013 WL
4510572, at *7. McCall petitioned for review in the California Supreme Court, which was
denied without comment on November 20, 2013. McCall’s conviction became final on direct
review 90 days later, when his time to file a petition for certiorari in the Supreme Court expired
on February 20, 2014. See Jiminez v. Quarterman, 555 U.S. 113, 119 (2009); Spitsyn v. Moore,
345 F.3d 796, 798 (9th Cir. 2003).
McCall then timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
February 5, 2015. See 28 U.S.C. § 2244(d)(1)(A). McCall simultaneously filed a motion to stay
the proceedings in federal court and hold them in abeyance to allow him to exhaust a fifth claim
not raised in the instant petition. The Court, through an earlier-assigned magistrate judge, denied
the request after determining that McCall did not demonstrate that he had diligently attempted to
raise the improper sentencing claim to the state courts and the claim was not cognizable on
federal habeas review in any event. The magistrate judge ordered Respondent to answer the
exhausted claims. Briefing is now complete, and the exhausted claims are now before the
undersigned judge for adjudication.
II. GROUNDS/CLAIMS
In his pro se Petition before this Court, McCall raises four interrelated claims. First, he
argues that the admission of Rochelle’s videotaped interview violated his confrontation and due
process rights because Zachary was present during the interview and “influenced the witness.”
He also contends that the court erred in failing to disclose juror-identifying information to allow
the defense to investigate claims of juror and prosecutorial misconduct. McCall similarly alleges
in Claim 3 that the trial erred in failing to conduct an inquiry of the jurors as to the juror and

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prosecutorial misconduct claims. Finally, McCall again argues in Claim 4 that the court erred in
denying the defense’s request for juror-identifying information.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.

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Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court’s
findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
IV. DISCUSSION
Claim 1.

Violation of Due Process and Confrontation Rights

McCall first argues that the court’s admission into evidence of a videotaped interview
between Rochelle and law enforcement, in which Zachary also participated, violated McCall’s
rights to confrontation and due process because Zachary did not testify at trial. In considering
this claim on direct appeal, the Court of Appeal described the following facts underlying this
claim:
As noted, Detective Heinlein testified at trial that the 16–year–old Rochelle was
uncooperative—and Heinlein thought dishonest—during initial questioning. The
detective then had Zachary, who was 29 years old, join them and tell Rochelle it was
okay to tell the truth. In Rochelle’s videotaped interview, Rochelle, with Zachary’s
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prodding, identified for Heinlein that [McCall] was the shooter (as set forth in the Factual
Background of this opinion under the subheading, “The McCulloch Set of Witnesses ”).
No statements from Zachary were admitted into evidence (given his unavailability
at trial), except for (i) his communications during Rochelle’s videotaped interview, and
(ii) Detective Heinlein’s testimony that Zachary told him he (Heinlein) really needed to
talk to someone else (i.e., this statement from Zachary was admitted for the nonhearsay
purpose of explaining what the police did next, which was to contact Rochelle).
McCall, 2013 WL 4510572, at *3.
The Confrontation Clause of the Sixth Amendment mandates that a criminal defendant
has the right to confront and cross-examine the witnesses against him. See Pennsylvania v.
Ritchie, 480 U.S. 39, 51 (1987). This generally means that out-of-court testimonial statements
by a witness are not admissible against a defendant unless the witness is available for
cross-examination at trial or the defendant had an opportunity to cross-examine the witness
about the statements before trial. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The
Confrontation Clause applies only to “‘witnesses’ against the accused, i.e., those who ‘bear
testimony.’” Id. at 51 (citation omitted); Davis v. Washington, 547 U.S. 813, 823–24 (2006).
“‘Testimony,’ in turn, is typically a solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” Crawford, 541 U.S. at 51 (citation and some internal
punctuation omitted); Davis, 547 U.S. at 824. As the Davis court explained:
[a] critical portion of [Crawford’s] holding ... is the phrase “testimonial statements.”
Only statements of this sort cause the declarant to be a “witness” within the meaning of
the Confrontation Clause. It is the testimonial character of the statement that separates it
from other hearsay that, while subject to traditional limitations upon hearsay evidence, is
not subject to the Confrontation Clause.
Davis, 547 U.S. at 821 (citation omitted). Thus, nontestimonial statements do not implicate the
Confrontation Clause. Giles v. California, 554 U.S. 353, 376 (2008); Whorton v. Bockting, 549
U.S. 406, 420 (2007).

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Moreover, the Confrontation Clause “does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9;
see also United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2013) (Crawford “applies
only to testimonial hearsay, and ‘does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.’” (citation omitted)). Furthermore, a
Confrontation Clause violation is subject to harmless error analysis. Delaware v. Van Arsdall,
475 U.S. 673, 684 (1986). A Confrontation Clause violation is harmless, and does not justify
habeas relief, unless it had substantial and injurious effect or influence in determining the jury’s
verdict. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); Ocampo v. Vail, 649 F.3d 1098, 1114
(9th Cir. 2011).
The Court of Appeal considered and rejected McCall’s confrontation and due process
claims as follows:
....

A. Confrontation Clause

[McCall] contends that admitting into evidence Rochelle’s videotaped interview
denied defendant his right to confront Zachary in two ways: (1) this evidence conveyed
to the jury that Zachary had also told Detective Heinlein that [McCall] killed Simms, via
Heinlein confronting Rochelle with what Zachary had told Heinlein; and (2) [McCall]
could not confront Zachary about his motivations for telling this story and pressuring
Rochelle to match it.
With respect to [McCall’s] first point, [McCall] notes from Rochelle’s videotaped
interview that “Rochelle looks at [Zachary] before identifying [McCall] as the person he
encountered [while] at the apartment. Zachary is looking back and forth at Rochelle and
then Detective Heinlein. Heinlein looks at Zachary and says what Rochelle is telling is
different from what [Zachary] said. Zachary says, ‘I know’ and shakes his head. At
various times, Zachary appears to be ‘coaching’ Rochelle.”4
The quoted part above that most supports [McCall’s] first point about not being
allowed to confront Zachary’s accusation against him is: “Heinlein looks at Zachary and
says what Rochelle is telling is different from what [Zachary] said. Zachary says, ‘I
know’ and shakes his head.” However, the transcription of Rochelle’s videotaped
interview (a transcription the jury had) provides the following backdrop with respect to
this interchange:
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“[ROCHELLE]: I was still on the [apartment] stairs [outside]. [McCall] walked
downstairs. [McCall] walked out the [apartment] back gate and . . . then I
heard pow, pow, pow, pow. [¶] . . . [¶]
“[DET. HEINLEIN]: So you didn’t walk out—
“[ROCHELLE]: No.
“[DET. HEINLEIN]: —down the street with [McCall]? Sure? ‘Cause that’s a
little different from what [Zachary] said.
“[ZACHARY]: I know. I went in the house [i.e., inside his apartment]. I thought
[Rochelle] went—
“[ROCHELLE]: [Zachary] wasn’t—he was never outside.”
Thus, the passage on which [McCall] most relies to claim he was denied the right
to confront Zachary’s accusation against him, actually lays waste to much of that
argument. Zachary is uncovered, not as an independent accuser regarding the shooting,
but as someone who did not know much of what occurred. Zachary was inside his
apartment, tucked away from what was happening outside; instead of Zachary having
“inside” knowledge, he had its opposite—“inside” ignorance. Furthermore, this
interchange confirms Zachary’s nonhearsay statement to Detective Heinlein that the
detective really needed to talk to someone other than Zachary. As for Zachary’s
supposed “coaching” of Rochelle, such “coaching” does not appear in Rochelle’s
videotaped interview.
When we combine this analysis with the recognition that no other “testimonial”
facts from Zachary were admitted into evidence, we conclude that [McCall’s] first point
lacks merit.
That brings us to [McCall’s] second point regarding confrontation: He was denied
the opportunity to confront Zachary about his motivations for telling a story and
pressuring Rochelle to match it. But [McCall’s] own words defeat this claim. In his
opening brief, [McCall] states: “At trial, Rochelle testified that everything he told
[Detective Heinlein] was a lie . . . . [¶] . . . [¶] Rochelle repeatedly testified that it was
Zachary’s idea to make up a story identifying [McCall] as the shooter to save Zachary
and, more importantly, Zachary’s girlfriend who was Rochelle’s sister [Tashawana], from
going to jail for the drug bust [in] December [2009].” Thus, Rochelle repeatedly
disclosed Zachary’s motivations; and, in any event, as we have seen, Zachary’s own
purported accusation against [McCall] had little or no basis in the evidence before the
jury.
B. Due Process
As [McCall] eventually concedes in his reply brief, his argument that Rochelle’s
videotaped interview violated [McCall’s] due process right to a fair trial, rests on the
foundation of the confrontation clause. Given that we just undercut that foundation, the
related due process argument crumples as well.
McCall, 2013 WL 4510572, at *3-5.

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As an initial matter, McCall appears to argue that the entire interview with law
enforcement should have been excluded due to the presence of Zachary, even though Rochelle
testified at trial and was available for cross-examination. But McCall has not, and cannot, point
to any clearly established Supreme Court precedent that mandates that statements made by a
witness who later testifies and is cross-examined must be excluded because of the presence of a
non-testifying third party.
Moreover, the state court’s treatment of Zachary’s statements and actions was objectively
reasonable. As the state court reasonably determined, Zachary’s statements were not testimonial
because they were not used to establish the truth of the matters assertion. Indeed, the only
assertion he made served only to demonstrate that he, unlike Rochelle, did not have personal
knowledge of the shooting. Thus, his statements simply provided context as to why Rochelle
was interviewed.
McCall also argues that, if Zachary had been available at trial, McCall could have
confronted him about his motivations for telling a story that Zachary forced Rochelle to confirm.
But the Confrontation Clause concerns solely the basis for testimonial statements. Here,
Zachary’s recitation of events was excluded, leaving only his non-testimonial statements and
actions persuading Rochelle to “tell the truth.” Likewise, as the state court reasonably found,
Rochelle repeatedly testified as to Zachary’s motivations at trial and was cross-examined
regarding Zachary’s influence over the statements. The state court’s rejection of this argument
was therefore neither contrary to, or an unreasonable application, of clearly-established Supreme
Court precedent.

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Furthermore, McCall cannot show that the admission of Zachary’s comments had a
substantial or injurious effect or influence on the jury’s verdict. As the state court explained,
Zachary’s comments did not explain Zachary’s version of events, so McCall cannot show that
they were useful to the jury in establishing guilt. Indeed, it may have been that Zachary’s
comments benefitted McCall because they supported the defense’s theory that Rochelle told law
enforcement what Zachary, a person who wielded influence over Rochelle, told Rochelle to say.
Accordingly, McCall is not entitled to any relief with respect to the admission of McCall’s
statements.
Claim 2-4.

Juror Information Claims

The remainder of McCall’s claims are related to the trial court’s refusal to conduct or
allow further investigations of the jurors into allegations of juror misconduct and prosecutorial
misconduct. Claims 2 and 3 argue that the trial court erred in failing to question the jury about a
juror’s alleged statement to another juror that McCall was “guilty as sin.” In Claim 4, McCall
contends that the trial court should have disclosed juror-identifying information to enable the
defense to investigate alleged prosecutorial misconduct by the prosecutor improperly comforting
the victim’s mother to invoke the jury’s sympathy. The Court of Appeal considered and rejected
these claims on direct appeal as follows:
A. Juror Misconduct
[McCall] contends the trial court erred in failing to examine the jurors and
alternates, after the verdict, as to what they knew about one juror supposedly telling
another early in the trial that defendant was “guilty.” We disagree.
About two months after the verdict, [McCall] moved for the disclosure of sealed
juror personal identifying information (i.e., juror contact information) to prepare a motion
for new trial based on juror misconduct. In support of the motion, [McCall’s] mother
declared that she overheard the “guilty” remark.
Initially, the trial court found that [McCall], based on his mother’s declaration,
had made a prima facie showing of good cause to release the sealed information, and
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ordered that jurors be notified of the information request and given a chance to object.
(See Code Civ. Proc., §§ 206, 237, subds. (b)-(d) [governing the process by which parties
may seek juror contact information; disclosure requires good cause].) When most of the
jurors who responded to the notice objected to the release of their personal contact
information, the trial court refused to release the information to the defense, but noted it
was willing to set the matter for further hearing for the two jurors who had agreed to be
interviewed.
[McCall] then moved the trial court to order all jurors to appear in court for court
questioning. The trial court denied the motion (eventually framed as a motion for new
trial), finding that it would contravene the jurors’ statutory privacy rights (Code Civ.
Proc., §§ 206, 237), and that there was insufficient evidence of juror misconduct because
[McCall’s] mother’s declaration lacked credibility; the court noted that the mother’s
declaration was inconsistent with her reaction of incredible surprise at the verdict and
with conversations she had with [McCall] . There was evidence that [McCall] and his
mother had several (transcribed) jail phone conversations during the trial, but never
mentioned any improper juror comment. Furthermore, none of the several jurors who
were contacted corroborated the “guilty” comment.
Relying on a decision from this court, People v. Tuggles (2009) 179 Cal. App. 4th
339 (Tuggles), [McCall] contends the trial court misunderstood its discretion to contact
the jurors itself to investigate juror misconduct on its own, rather than having the parties
do so.
In Tuggles, we observed, “[C]ode of Civil Procedure sections 206 and 237 allow
jurors to prevent the release of [personal identifying] information to parties, their
attorneys, investigators working for counsel, and members of the general public. The
court must heed the wishes of reluctant jurors to bar disclosure of [this] information to
these persons. However, Code of Civil Procedure sections 206 and 237 do not infringe
upon the trial courts’ inherent power to investigate strong indicia of juror misconduct.
[Citation.] Jurors may not thwart an investigation of misconduct by the court itself. The
trial court has discretion to subpoena even reluctant jurors when necessary to determine
whether the factfinding process went awry. [Citation.] Accordingly, the [Tuggles] trial
court . . . erred by concluding that it had no power to order jurors to attend an evidentiary
hearing after they declined to discuss the case with counsel. The duty to protect jurors
from overzealous attorneys and investigators does not require an abdication of the court’s
obligation to ensure that the jury trial process is free from misconduct.” (Tuggles, supra,
179 Cal. App. 4th at pp. 386–387.)
Based on these observations, we concluded in Tuggles, “Thus, where the trial
court is presented with a credible prima facie showing that serious misconduct has
occurred, the trial court may order jurors to appear at a hearing and to answer questions
[from the court] about whether misconduct occurred.” (Tuggles, supra, 179 Cal. App.
4th at pp. 385–386.)
Here, however, as the trial court implicitly concluded, [McCall] did not present it
“with a credible prima facie showing that serious misconduct ha[d] occurred.” (Tuggles,
supra, 179 Cal. App. 4th at pp. 385–386.) As the trial court noted, there was insufficient
evidence of serious juror misconduct, given that [McCall’s] mother’s declaration lacked
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credibility and not one of the several jurors who were contacted corroborated the “guilty”
remark.
In two respects, [McCall] disputes a conclusion that the trial court properly
refused to examine the jurors itself. First, [McCall] notes the trial court did initially find
that [McCall] had made a prima facie showing of juror misconduct, based on [McCall’s]
mother’s declaration. And, second, [McCall] argues that such a conclusion improperly
mixes two different claims: (1) trial court error in denying a motion for new trial based
on juror misconduct; and (2) trial court error in misunderstanding it had discretion to
examine jurors itself to investigate the basis for a new trial motion grounded on juror
misconduct. Both of [McCall’s] disputes, however, fall prey to the fact that [McCall]
did not make the threshold showing required to trigger a trial court’s examination of
jurors: a credible prima facie showing that serious misconduct had occurred.
B. Prosecutorial Misconduct
[McCall] also contends the trial court erred in denying his motion for juror
contact information to investigate whether the prosecutor’s conduct toward the victim’s
mother invoked sympathy, thereby improperly influencing the jury’s deliberations.
According to [McCall], the prosecutor repeatedly exposed the jurors to the victim’s
mother by having the mother sit just outside the courtroom where the jurors congregated
during breaks and by comforting the mother in front of the jurors by rubbing her
shoulders and demonstrating her sympathy.
For two reasons, we conclude the trial court properly found that [McCall] failed
to establish the requisite “good cause” for the release of juror contact information,
pursuant to a motion defendant made about two months after the verdict. (Code Civ.
Proc., § 237, subd. (b).)
First, to preserve a claim of prosecutorial misconduct for appeal, a defendant must
have timely objected and requested the trial court to admonish the jury. (People v. Ayala
(2000) 23 Cal. 4th 225, 284.) We realize [McCall’s] contention here involves but a step
on the way to establishing a claim of prosecutorial misconduct. Nevertheless, had
[McCall] timely objected to the prosecutor’s alleged repeated exposures and requested
the jury be admonished, this would have cured any harm at trial and we would not be
entertaining this contention now. Under the circumstances here, granting [McCall’s]
motion for juror contact information would allow a defendant to sit upon a claim of
prosecutorial misconduct involving improper jury influence and then obtain juror contact
information after an adverse verdict; this would allow the disclosure of such information
through the back door, which could not be obtained through the front.
Second, the trial court instructed the jurors not to let sympathy influence their
decisions; and to disregard anything they saw or heard when the court was not in session,
even if it was done or said by one of the parties or witnesses.
McCall, 2013 WL 4510572, at *5-7.

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A.

Inquiry into alleged juror misconduct

The Sixth Amendment guarantees criminal defendants the right to a “fair trial by a panel
of impartial, ‘indifferent’ jurors.” Irwin v. Dowd, 366 U.S. 717, 722 (1961); see Dyer v.
Calderon, 151 F.3d 970, 973 (9th Cir.1998). “Although doubts regarding bias must be resolved
against the juror, the defendants bear the burden of showing that the prospective juror was
actually biased, and that the [trial] court abused its discretion or committed manifest error when
it failed to excuse her for cause.” United States v. Maloney, 699 F.3d 1130, 1135 (9th Cir. 2012)
(internal citations, brackets, ellipses, and quotation marks omitted). “If only one juror is unduly
biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth
Amendment right to an impartial panel.” United States v. Hendrix, 549 F.2d 1225, 1227 (9th
Cir. 1997).
The United States Supreme Court has “long held that the remedy for allegations of juror
partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Smith v.
Phillips, 455 U.S. 209, 215 (1982); Remmer v. United States, 347 U.S. 227, 228-29 (1954)
(remanding case to district court to “hold a hearing to determine whether the incident
complained of was harmful to the petitioner”). The record here reveals that the trial court
solicited information from the jurors and held multiple hearings to determine whether further
examination of the jurors was necessary or appropriate. Although the trial court did not fully
question each juror as to McCall’s allegation, that fact does not compel the conclusion that an
adequate inquiry was not made. The United States Supreme Court does not require the partiality
hearing to be conducted in a specific manner. Smith, 455 U.S. at 217-18. The Ninth Circuit has
applied the Smith hearing requirement to a variety of situations and concluded that “[a]s long the

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fact-finding process is objective and reasonably explores the issues presented, the state trial
judge’s findings based on that investigation are entitled to a presumption of correctness.”
Hedlund v. Ryan, 750 F.3d 793, 807 (9th Cir. 2014) (citing Dyer, 151 F.3d at 974-75).
Based on a review of the record, the Court finds that the trial court’s handling of the
allegations of juror bias was reasonable and in accordance with clearly established federal law.
The trial court’s fact finding process was “objective and reasonably explored the issues
presented [and, therefore,] the state trial judge’s findings based on that investigation are entitled
to a presumption of correctness.” Hedlund, 750 F.3d at 807. Because there was no competent
evidence to demonstrate that any jurors were in fact biased, the trial judge was not required to
undertake additional inquiry. Indeed, it is noteworthy that McCall’s mother indicated that she
overheard the “guilty as sin” statement on the second or third day of the trial, but the issue was
not raised to the trial court until roughly two months after the verdicts were rendered. Because
McCall was given an opportunity to establish actual bias and the trial court’s factual
determinations were reasonable, the appellate court’s decision to deny McCall’s request for
further inquiry was not contrary to, and did not involve an unreasonable application of, clearly
established federal law and was not based on an unreasonable determination of fact. McCall is
therefore not entitled to relief on this ground.
B.

Prosecutorial misconduct

McCall also complains that the trial court did not disclose juror information to enable the
defense to investigate whether jurors were unduly influenced by the prosecutor’s conduct in
comforting the victim’s mother in an alleged attempt to invoke the jury’s sympathy. This claim
is also without merit. As an initial matter, because the state appellate court found McCall’s

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claim forfeited under California’s contemporaneous objection rule, the claim is procedurally
defaulted from federal habeas review. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (a
federal court will not review a claim if the state court’s rejection of the claim rests on a state law
ground that is independent of the federal question and adequate to support the judgment). The
Ninth Circuit has repeatedly recognized and applied the California contemporaneous objection
rule in affirming denial of a federal habeas petition on grounds of procedural default where there
was a complete failure to object at trial. See, e.g., Inthavong v. Lamarque, 420 F.3d 1055, 1058
(9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004). Because the state
appellate court held that the claim was thereby forfeited under California’s contemporaneous
objection rule, the claim may be deemed procedurally defaulted on federal habeas review.
Moreover, as the Court of Appeal acknowledged, the trial court “instructed the jurors not
to let sympathy influence their decisions; and to disregard anything they saw or heard when the
court was not in session, even if it was done or said by one of the parties or witnesses.” McCall,
2013 WL 4510572, at *5-7. This Court must also assume in the absence of evidence to the
contrary that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000);
Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the “almost invariable assumption of the
law that jurors follow their instructions”); see Francis v. Franklin, 471 U.S. 307, 323-24 & n.9
(1985) (discussing the subject in depth). Because McCall does not present any evidence that the
jury was influenced by the prosecutor’s alleged conduct, McCall’s claim fails.
V. CONCLUSION AND ORDER
McCall is not entitled to relief on any ground raised in his Petition.

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IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: January 13, 2017.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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