Batton v. Pfeffer
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 3/8/18 ORDERING 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. CASE CLOSED. (Mena-Sanchez, L)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
DANIEL PARAMO, Warden, Richard J.
Donovan Correctional Facility,1
Mario Batton, 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. Batton is in the custody of the California
Department of Corrections and Rehabilitation and incarcerated at the Richard J. Donovan
Correctional Facility. Respondent has answered, and Batton has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On February 9, 2010, Batton was charged with first-degree residential burglary (Count 1)
and resisting a police officer in the performance of his duties (Count 2). The information
additionally alleged that Batton’s prior convictions for first-degree burglary on October 25,
1984, and September 10, 2001, were both serious felonies and strike priors. On direct appeal of
his conviction, the California Court of Appeal laid out the following facts underlying the charges
against Batton and the evidence presented at trial:
This was [Batton’s] second trial on these charges. The first jury found him guilty,
but the court granted a new trial based on a juror’s misconduct in failing to disclose
information during voir dire.
Daniel Paramo, Warden, Richard J. Donovan Correctional Facility, is substituted
for Christian Pfeiffer, Warden, Kern Valley State Prison. FED. R. CIV. P. 25(c).
On January 15, 2010, around 10:45 a.m., sheriff’s deputies responded to a report
of a possible burglary in progress at a duplex. A deputy stationed in front of the house
saw someone inside look out through the window blind and then heard a loud noise
inside the house. The deputy stationed in back of the house heard the loud noise and saw
two males, later identified as [Batton] and Demetrius Wilkerson, run out of the back of
the duplex into the backyard and over a fence. They ignored law enforcement orders to
stop, and deputies took chase. Deputies quickly caught Wilkerson in a neighboring yard
a few doors away. A few minutes later, a police dog located [Batton] hiding in a
In [Batton’s] pocket, deputies found a woman’s watch plus gold and silver watch
faces. Wilkerson had a Cannon digital camera and a small Sony PSP Play Station. The
victim identified these items as her property. The victim’s home had been
ransacked—drawers, cabinets, and closets emptied; items strewn about; and the
television had been pulled off the wall. No useable fingerprints were found.
The victim did not know [Batton] but had dated Wilkerson’s brother a couple of
years earlier. Wilkerson subsequently entered a plea to an unspecified charge.
[Batton] testified at trial. On the day in question, he was living with Shannon
Brown, who was his fiancée at the time, and her son at the home of Brown’s godmother.
[Batton] had recently moved from Orange County and had been introduced to Wilkerson
through Brown. [Batton] was 48 years old, and Wilkerson was around 18 or 19. [Batton]
said he and Wilkerson were just acquaintances, not friends.
Around 7:00 a.m. on the day of the burglary, Wilkerson came to [Batton’s] home
and said he (Wilkerson) and his girlfriend had split up. [Batton] asked Wilkerson to
come back later. Wilkerson later returned, related his girlfriend problem to [Batton] and
Brown, and asked Brown if it would be alright if [Batton] helped retrieve Wilkerson’s
property from the girlfriend’s house.
[Batton] and Wilkerson walked to the duplex a few blocks away. Wilkerson
appeared to try to open the door with a key, said, “My bitch locked me out,” and entered
the gated yard. [Batton] stayed out front for several minutes, then got impatient and went
into the backyard. Wilkerson opened the sliding glass door and handed [Batton] the
watch and watch faces. [Batton] put them in his pocket and said to hurry because he had
other things to do. Wilkerson went back inside. [Batton] stayed outside.
After a few minutes, [Batton] heard a crashing sound, which he thought was
Wilkerson running through the house. [Batton] heard a screeching sound and saw police
cars. Wilkerson ran out the back door, at which point [Batton] “figured” Wilkerson had
done something wrong and “had got me caught up in some stuff.” [Batton] heard the
deputies announce the police dog. He had previously been bitten by a dog. He waited
for the deputies to find him.
[Batton] admitted he committed, pleaded guilty, and was convicted of residential
burglary in 1984 and 1999 and second-degree burglary in 2004. The jury also heard the
parties’ stipulation that [Batton] was convicted of residential burglary in 1984 and 1999.
(The record indicates [Batton] was granted probation in 1999 but violated probation and
was committed to prison in 2001.)
On cross-examination, [Batton] said he had not called or talked with Brown in
months and did not know her new phone number. Brown was on the witness list as a
defense witness but ultimately did not testify at trial.
In rebuttal, the prosecution adduced evidence of Brown’s phone number and that
[Batton] phoned it from jail about 25 or 30 times in the two weeks before the trial, once
as recently as the day [Batton] testified.
In his initial closing argument to the jury, the prosecutor did not mention the
absence of Brown from the witness stand. The prosecutor highlighted [Batton’s] lies on
the witness stand about not knowing Brown’s phone number and not having contact with
her. The prosecutor argued [Batton] committed a new crime—perjury—and the jury
should disbelieve his entire testimony.
Defense counsel argued to the jury that there was no evidence of the length of the
calls or whether they were accepted. Defense counsel acknowledged Brown would have
been a logical and natural witness, but the defense did not have the burden, and the jurors
could not speculate as to why witnesses are called or not called.
In rebuttal argument, the prosecutor said the jurors could consider Brown’s
absence. The trial court overruled a defense objection. The prosecutor continued, “Ms.
Brown is not here. She did not testify. And so her—you know, [Batton] talking about
Ms. Brown heard this, Ms. Brown heard that. [Defense counsel], in his opening
statement, talking about Ms. Brown’s going to tell you this and that. It never happened.”
The trial court overruled a defense objection of burden-shifting.
People v. Batton, No. C072081, 2015 WL 7307330, at *1-2 (Cal. Ct. App. Nov. 5, 2015).
At the conclusion of trial, the jury found Batton guilty of both Counts 1 and 2. The court
held a bifurcated trial on the enhancement allegations and further found true the prior
allegations. The court subsequently sentenced Batton to an aggregate term of 18 years’
Through counsel, Batton appealed his conviction, arguing that: 1) the trial court abused
its discretion and violated Batton’s Fifth Amendment right against self-incrimination by
overruling his objection to the prosecutor’s cross-examination and by allowing collateral rebuttal
testimony; 2) the trial court abused its discretion and deprived Batton of due process and a fair
trial by admitting two prior convictions for residential burglary; 3) the prosecutor committed
misconduct by questions and argument going to propensity and bad character; and 4) the
cumulative effect of the errors warranted reversal of his conviction. The Court of Appeal
unanimously affirmed the judgment against Batton in all respects in a reasoned, unpublished
opinion issued on November 20, 2015. Batton, 2015 WL 7307330, at *10. Batton petitioned the
California Supreme Court for review of all claims, which was denied without comment on
January 27, 2016.
Batton then timely filed an undated pro se Petition for a Writ of Habeas Corpus to this
Court, which was docketed on April 14, 2016. See 28 U.S.C. § 2244(d)(1)(A). A previouslyassigned magistrate judge dismissed the petition with leave to amend. Docket No. 6. Batton
filed the First Amended Petition (“Petition”) at Docket No. 9, which is now pending before the
undersigned judge and ripe for adjudication.
In his pro se Petition before this Court, Batton raises the claims he unsuccessfully raised
to the state courts on direct appeal. First, he argues that the trial court abused its discretion and
violated Batton’s Fifth Amendment right against self-incrimination by overruling his objection
to the prosecutor’s cross-examination and by allowing collateral rebuttal testimony regarding his
contact with Brown. He next contends that the trial court abused its discretion and deprived
Batton of due process and a fair trial by admitting his two prior convictions for residential
burglary. In Ground 3, Batton avers that the prosecutor committed misconduct by asking
questions and making arguments that went to propensity and bad character. Finally, Batton
claims that the cumulative effect of the errors warrants reversal of the judgment.
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.
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)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). 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).
Evidentiary Errors (Grounds 1, 2)
Batton first argues that the trial court made two evidentiary errors by: 1) allowing
evidence and testimony regarding Batton’s recent contacts with Brown; and 2) admitting
prejudicial prior crimes evidence. The Supreme Court has acknowledged its “traditional
reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial
courts.” Crane v. Kentucky, 476 U.S. 683, 689 (1986). The Supreme Court has further made
clear that federal habeas power does not allow granting relief on the basis of a belief that the
state trial court incorrectly interpreted the state evidence code in ruling on the admissibility of
evidence. Estelle, 502 U.S. at 72 (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973);
Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Donnelly v. DeChristoforo, 416 U.S. 637, 643
The erroneous admission of evidence does not provide a basis for federal habeas relief
unless it rendered the trial fundamentally unfair in violation of due process. Holley v.
Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Evidence violates due process only if “there
are no permissible inferences the jury may draw from the evidence.” Jammal v. Van de Kamp,
926 F.2d 918, 920 (9th Cir. 1991) (emphasis omitted). A writ of habeas corpus will be granted
for an erroneous admission of evidence “only where the ‘testimony is almost entirely unreliable
and . . . the factfinder and the adversary system will not be competent to uncover, recognize, and
take due account of its shortcomings.’” Mancuso v. Olivarez, 292 F.3d 939, 956 (9th Cir. 2002),
overruled on other grounds by Slack v. McDaniel, 529 U.S. 473 (2000).
Questions and evidence regarding Batton’s contacts with Brown
In considering this claim on direct appeal, the Court of Appeal laid out the following
factual background to this claim:
[Batton] complains the trial court improperly allowed the prosecution to
cross-examine him about post-arrest communications with Brown and to present
collateral rebuttal evidence about such contacts, which [Batton] views as beyond the
scope of his direct examination. [Batton] argues the trial court abused its discretion and
violated his Fifth Amendment right to remain silent and his Fourteenth Amendment right
to due process of law and a fair trial.
According to [Batton], Brown was a witness to Wilkerson asking for help to
retrieve his property from his girlfriend’s house.
Brown did not testify at the first trial but was present as a spectator. After the
verdict, she claimed a juror had passed her a note, but the judge in the first trial did not
For the second trial, Brown was on the defense witness list, and defense counsel
told the jury in opening statement: “[Defendant’s] fiancée is Shannon Brown. You’re
likely going to hear from Shannon Brown Thursday morning.”
[Batton] began his testimony by saying that on the day of the burglary (two and a
half years before this testimony), he was living with Brown, “which she was my fiancée
at the time.” [Batton] claimed Brown witnessed Wilkerson ask for help to retrieve his
belongings from his girlfriend’s house. The trial court had ruled Brown could testify to
the conversation. The trial court had also expressed concern about the prosecutor’s
desire to impeach Brown with the first judge’s finding that Brown lacked credibility in
claiming juror misconduct in the first trial. The court would allow some questions but
was concerned that this jury not learn the first jury found [Batton] guilty.
On cross-examination, [Batton] acknowledged, “I referred to her as my
ex-fiancée, yes.” They had known each other and been engaged for only a few months
when the burglary occurred. The prosecutor asked what changed the relationship after
[Batton’s] arrest. The defense objected the question exceeded the scope of direct
examination, which had ended with [Batton’s] arrest. The court allowed the question as
going to [Batton’s] credibility, and hers if she testified, and if she did not testify, “we
might be able to revisit this.” [Batton] testified, “me and Shannon are not together
anymore.” Over defense objection, the court allowed the prosecution to ask whether
[Batton] was still in contact with Brown. [Batton] said that, other than receiving an
occasional e-mail from her asking how he was doing, “only because she was coming to
court,” he was not in contact with her. She had moved out of her godmother’s house, and
[Batton] did not have her current telephone number and had not talked to her for months.
He acknowledged she e-mailed him a couple of months earlier that she loved him. The
court allowed this as going to potential bias. [Batton] admitted he called Brown in late
June 2012 about her coming to court to testify (trial started the end of July 2012), but said
he did not tell her “exactly what to come and testify about.”
The defense moved for a mistrial or, in the alternative, to strike [Batton’s]
testimony about his relationship with Brown and admonish the jury to disregard it. The
defense argued the prosecution exceeded the scope of direct examination and improperly
used [Batton] to impeach Brown before she took the witness stand. The defense viewed
this as a Fifth and Fourteenth Amendment violation in that the prosecution could not call
[Batton] as a rebuttal witness. The prosecutor countered his questions were within the
scope of direct examination because [Batton] had discussed his relationship with Brown
on direct examination, and the questions related to [Batton’s] statements in recorded
jailhouse phone calls with Brown that the prosecutor intended to introduce through
Brown or a district attorney’s investigator.
The trial court denied the mistrial motion, concluding [Batton’s] relationship with
Brown was part of his direct testimony, and it was therefore within the scope to ask about
the current status of the relationship. The court added, “in a sense [the prosecutor] was
anticipating what Ms. Brown might testify to by using the defendant as an impeachment
witness, so to speak. We don’t really know if that’s the case for sure. But it is something
that I will anticipate Ms. Brown will testify to.” Even though the prosecutor could not
call [Batton] as a rebuttal witness, there were other ways the evidence could have been
adduced. The court said there may be an issue with having the jury hear “imprecise
recollection[s]” by [Batton], going to his credibility, but the trial thus far was not so
affected by unfairness as to warrant a mistrial or strike the testimony. The court added
there was no federal or state constitutional violation.
The next day, the defense stated it made a tactical decision not to call Brown as a
witness, in light of the contents of the recently-transcribed jailhouse calls between her
and [Batton]. The defense renewed its motion for mistrial. The court noted it had denied
the motion in part on the assumption Brown would testify and invited comment from the
prosecutor. The prosecutor said [Batton’s] testimony on direct examination, that Brown
used to be his fiancée, conflicted with the recent jailhouse conversations between
[Batton] and Brown, which the prosecutor had recently received but which had not yet
been transcribed when [Batton] testified. The primary purpose of the questioning, said
the prosecutor, was to attack [Batton’s] credibility.
The trial court again denied the defense motion for mistrial. Questions about
[Batton’s] ongoing relationship with Brown was “fair game” within the scope of direct
examination, and it was fair game because Brown was supposed to testify. The court said
there was no “scope violation,” but even if there were, the trial had not been so infused
by unfairness as to violate [Batton’s] right to a fair trial. The court declined to strike the
testimony but stated it would not allow the prosecutor to adduce evidence of the most
recent jail call which, now that Brown would not be testifying, was an ancillary collateral
Over defense objection, the trial court also ruled the prosecutor could argue to the
jury that the defense has failed to produce Brown as a logical witness.
Over defense objection, the trial court allowed the prosecution to present brief
rebuttal testimony from the district attorney’s investigator, who testified to Brown’s
telephone number and jailhouse phone logs showing [Batton] called that number from
jail about 25 or 30 times in the last two weeks. The court did not allow the prosecutor to
play the recordings.
Batton, 2015 WL 7307330, at *3-4.
Batton contends, as he did on direct appeal, that the trial court violated the laws of
California evidence when it allowed the prosecution to impermissibly exceed the scope of crossexamination and erroneously admitted the rebuttal evidence. Here, the appellate court found that
the trial judge did not abuse its discretion with respect to its evidentiary rulings on the scope of
cross-examination and the admissibility of rebuttal evidence:
There was no improper cross-examination. [Batton] testified Brown was an
eyewitness to Wilkerson’s supposed story that he and his girlfriend had just broken up
and he needed [Batton’s] help to retrieve his own property from her house. The defense
listed Brown on its witness list and told the jury she would testify. On direct examination
[Batton] twice testified Brown was his “fiancée at the time.” [Batton] thus set the stage
for an impartial exculpatory witness.
The prosecutor was entitled on cross-examination to explore the relationship
between [Batton] and Brown, to explore the implication that she was impartial. Since
[Batton] volunteered on direct examination that she was his fiancée “at the time,” he
opened the door to inquiry on the subject of their relationship and its continuing
existence. In light of the fact that [Batton] on direct examination asserted that the two
were engaged to be married at the time of the pertinent conversation and based on
[Batton’s] inclusion of Brown on his witness list, and also considering the fact that the
prosecutor would not be able to recall [Batton] on the subject once his testimony was
concluded, it was fair game to ask if the two remained engaged at the time of trial.
Strategically, the prosecutor was going to be able to capitalize on [Batton’s] answer,
whether it was “yes” or “no.” If [Batton] testified they were still engaged it would call
into question the credibility of Brown if, as the parties anticipated, she testified in the
defense case. If [Batton] said that they were no longer engaged and attempted to distance
himself from her (as he did) in order to bolster her testimony, the prosecutor then could
present evidence to counter that argument by showing how often [Batton] and Brown had
spoken since the date of [Batton’s] arrest. Once [Batton] lied about how often he had
been in touch with Brown, the prosecutor was entitled to pin down those lies in
anticipation of the prosecution’s evidence that the two had communicated often and
recently, thus attacking [Batton’s] credibility as a witness. And, clearly, the prosecutor
did not raise a collateral matter merely for the purpose of contradicting it, because at that
time everyone expected Brown to testify as a defense witness.
Nor does [Batton] show the trial court abused its discretion by permitting rebuttal
evidence that he telephoned Brown from jail 25 to 30 times in the last two weeks. It was
clearly probative as to [Batton’s] credibility and did not consume much time, taking up
only four pages of reporter’s transcript.
We conclude [Batton] fails to show evidentiary error regarding [Batton’s]
contacts with Brown. Since there was no error, we need not address [Batton’s]
arguments about prejudice.
Batton, 2015 WL 7307330, at *5.
This Court must defer to the state appellate court’s determination of state law.
Wainwright v. Goode, 464 U.S. 78, 84 (1983); Bains v. Cambra, 204 F.3d 964, 972 (9th Cir.
2000). Thus, state law was not violated by the admission of the evidence. Indeed, to the extent
that Batton asserts an error under California evidentiary law, such claim is not cognizable on
federal habeas review. The Supreme Court has made clear that federal habeas power does not
allow granting relief on the basis of a belief that the state trial court incorrectly interpreted the
state evidence code in ruling on the admissibility of evidence. Estelle v. McGuire, 502 U.S. 62,
72 (1991) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973); Henderson v. Kibbe, 431 U.S.
145, 154 (1977); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In this context, the
Supreme Court has defined the category of infractions that violate fundamental fairness very
narrowly, limiting them to specific guarantees enumerated in the bill of rights. Estelle, 502 U.S.
at 73 (citing Dowling v. United States, 493 U.S. 342, 352 (1990)).
Moreover, Batton cannot show that the admission violates federal due process. “‘The
admission of evidence does not provide a basis for habeas relief unless it rendered the trial
fundamentally unfair in violation of due process.’” Holley v. Yarborough, 568 F.3d 1091, 1101
(9th Cir. 2009) (quoting Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995)); see also Jammal
v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.1991) (proper analysis on federal habeas review is
“whether the admission of the evidence so fatally infected the proceedings as to render them
fundamentally unfair”). “The Supreme Court has made very few rulings regarding the admission
of evidence as a violation of due process.” Holley, 568 F.3d at 1101 (9th Cir. 2009). “Although
the Court has been clear that a writ should be issued when constitutional errors have rendered the
trial fundamentally unfair, it has not yet made a clear ruling that admission of irrelevant or
overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of
the writ.” Id. (citing Williams, 529 U.S. at 375). Absent such “clearly established Federal law,”
it cannot be concluded that the appellate court’s ruling was an “unreasonable application.”
Carey, 549 U.S. at 77 (noting that, where the Supreme Court has not adequately addressed a
claim, a federal court cannot find a state court ruling unreasonable). Batton is therefore not
entitled to relief on this claim.
Admission of prior convictions for residential burglary
The Court of Appeal considered and rejected on direct appeal Batton’s challenge to the
admission of his prior convictions as follows:
[Batton] argues the trial court abused its discretion by allowing the jury to hear
about his two prior burglary convictions, in violation of his Fourteenth Amendment right
to due process and a fair trial. We see no reversible error.
The parties submitted cross-motions in limine on admissibility of evidence of
defendant’s dozen prior convictions—ranging from a 1979 misdemeanor auto theft to a
2009 misdemeanor drug offense, burglary convictions in 1981 (second-degree), 1984
(first-degree with defendant serving as lookout), 2001 (first-degree), and 2003
(second-degree burglary)—plus several parole violations. The prosecutor sought to use
the prior record as crimes of moral turpitude impeaching [Batton’s] credibility. The
prosecution also sought to use the 1984 and 2001 residential burglary convictions to
prove intent and absence of mistake under Evidence Code section 1101, subdivision (b),
refuting [Batton’s] testimony that he thought he was just helping someone retrieve his
own property from a girlfriend’s house. [Batton] argued the evidence was improper
propensity evidence and some was remote.
On appeal, [Batton] cites the judge’s evidentiary ruling from the first trial, which
we disregard. The judge in the second trial at issue in this appeal ruled the three burglary
convictions were crimes of moral turpitude presumptively admissible for impeachment.
The court also ruled the jury could learn the prior convictions were for burglaries,
because the highly probative value of the evidence under Evidence Code section 1101,
subdivision (b), outweighed the potential for undue prejudice under Evidence Code
The court instructed the jury with CALCRIM No. 316: “If you find that a witness
has been convicted of a felony, you may consider that fact only in evaluating the
credibility of the witness’s testimony. The fact of a conviction does not necessarily
destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact
and whether that fact makes the witness less believable.”
The court also instructed the jurors with CALCRIM No. 375, that if they found
defendant committed the prior residential burglaries, “you may, but are not required to,
consider that evidence for the limited purpose of deciding whether or not: [¶] The
defendant entered a residence with the intent to commit theft. [¶] . . . [¶] Do not consider
this evidence for any other purpose except for the limited purpose of deciding whether
the defendant entered a residence with the intent to commit theft. [¶] Do not conclude
from this evidence that the defendant has a bad character or is disposed to commit crime.
[¶] If you conclude that the defendant committed the uncharged offenses, that conclusion
is only one factor to consider along with all the other evidence. It is not sufficient by
itself to prove that the defendant is guilty of first degree burglary. The People must still
prove each charge beyond a reasonable doubt.”
The California Constitution provides that “[a]ny prior felony conviction of any
person in any criminal proceeding, whether adult or juvenile, shall subsequently be used
without limitation for purposes of impeachment or enhancement of sentence in any
criminal proceeding . . . .” (CAL. CONST., art. I, § 28, subd. (f)(4).) The use of prior
convictions for impeachment remains subject to the trial court’s discretion under
Evidence Code section 352. (People v. Clark (2011) 52 Cal.4th 856, 931.) In exercising
its discretion to admit prior convictions for impeachment, the trial court is guided by four
factors: (1) Whether the prior conviction reflects on honesty and integrity; (2) whether it
is near or remote in time; (3) whether it was incurred for the same or substantially similar
conduct for which the witness-accused is on trial; and (4) what effect admission would
have on the defendant’s decision to testify. (Ibid., citing People v. Beagle (1972) 6
Cal.3d 441, 453.)
[Batton] finds fault with respect to the second and third factors.
He argues the 1984 and 1999 residential burglary convictions were remote.
However, remote convictions are not automatically inadmissible for impeachment
purposes and are admissible when the defendant has not led a “legally blameless life”
since the conviction. (People v. Mendoza (2000) 78 Cal.App.4th 918, 926 [allowed
impeachment with 18–year–old prior conviction].) [Batton’s] 1984 residential burglary
was his second conviction for residential burglary, the first being in 1981. Among
[Batton’s] other convictions were misdemeanor auto theft in 1989; misdemeanor
domestic violence in 1990; the 1999 residential burglary conviction; the 2003
commercial burglary; misdemeanor drug convictions in 2008 and 2009; and the instant
offense in January 2010. [Batton’s] continuous life of crime justified use of the 1984 and
As to the third factor of similarity of crimes for impeachment purposes, [Batton]
argues the similarity of the prior residential burglary convictions to this residential
burglary prosecution prejudiced him, and the trial court should have sanitized the
convictions or used his convictions for other offenses. However, the nature of the prior
residential burglary convictions was separately admissible for the independent purposes
of intent and absence of mistake.
Thus, Evidence Code section 1101, while generally restricting character evidence
to prove conduct on a specified occasion, provides in subdivision (b): “Nothing in this
section prohibits the admission of evidence that a person committed a crime, civil wrong,
or other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his
or her disposition to commit such an act.” A trial court’s decision to admit evidence
under Evidence Code section 352 is reviewed for abuse of discretion. (People v.
Mendoza (2007) 42 Cal.4th 686, 699.)
[Batton], a grown man, tried to convince the jurors that a teenaged acquaintance
duped him into participating in a residential burglary—i.e., that [Batton] lacked intent to
commit burglary and his involvement was a mistake. His prior residential burglary
convictions had high probative value to disprove his story.
[Batton’s] only argument about Evidence Code section 1101 in his opening brief
is that the prosecutor committed prejudicial misconduct by using the prior convictions as
propensity evidence. We reject this claim, post.
[Batton] contends admission of the evidence violated due process by making the
trial fundamentally unfair. He claims “[t]here can be little doubt” the jury improperly
used the prior convictions as propensity evidence, and the jury instructions forbidding
such use “required mental gymnastics that no juror could reasonably perform.” We
disagree. [Batton] cites Shepard v. United States (1933) 290 U.S. 96 [78 L.Ed. 196],
which found the trial court prejudicially erred in allowing as a dying declaration the
murder victim’s hearsay statement accusing the defendant of poisoning her. The
statement did not qualify as a dying declaration, because it was made several weeks
before death, at a time when the victim’s health was improving. (Id. at p. 99.) The
intermediate appellate court held the statement was admissible on other grounds—to
refute defense evidence that the victim was suicidal. (Id at p. 102.) The high court
rejected that alternative theory because the evidence had not been offered or received for
that narrow purpose at trial, and that theory would be unlikely to occur to the minds of
jurors uninstructed on that narrow purpose. (Id. at pp. 102–103.) [Batton] cites Shepard
for its statement that the purported distinction between uses of the evidence was “a feat
beyond the compass of ordinary minds” to limit the purpose of the evidence. (Id. at p.
Shepard affords [Batton] no help in his appeal, because here the evidence was
offered and received for the specific narrow purpose, and the jury was instructed on that
[Batton’s] reply brief quotes from respondent’s brief—which merely reiterated
the prosecutor’s point about the implausibility of the mature, experienced burglar being
duped into a burglary by a teenager. [Batton’s] reply brief then cites several law review
articles about scientific studies of mock juries. We disregard this new argument and
authority raised for the first time in the reply brief. (Garcia v. McCutchen (1997) 16
Cal.4th 469, 482, fn.10.)
We conclude there was no evidentiary error.
Batton, 2015 WL 7307330, at *5-8.
Batton fares no better on federal habeas review.2 First, to the extent that he argues that
the admission of his prior convictions violated state law, again Batton is not entitled to habeas
Because Batton testified at trial and was impeached with his prior convictions, his
challenge to the court’s ruling on that issue is cognizable on federal habeas review. See Luce v.
United States, 469 U.S. 38, 48 (1984) (holding that, in order to present an objection to a trial
court’s ruling that a prior conviction could be admitted, a defendant must actually testify at trial);
Galindo v. Ylst, 971 F.2d 1427, 1429 (9th Cir. 1992) (per curium) (applying Luce in the context
of a habeas petition).
relief. See Wilson v. Corcoran, 562 U.S. 1, 4 (2010) (“[I]t is only noncompliance with federal
law that renders a State’s criminal judgment susceptible to collateral attack in the federal
courts.”); Estelle, 502 U.S. at 67-68.
Moreover, Batton cannot show that the trial court’s ruling violated his constitutional
rights. Again, “The Supreme Court has made very few rulings regarding the admission of
evidence as a violation of due process.” Holley, 568 F.3d at 1101. “Although the Court has
been clear that a writ should issue when constitutional errors have rendered the trial
fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or
overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of
the writ.” Id.
Similarly, to the extent Batton argues that the prior convictions inflamed the jury by
suggesting Batton’s propensity to commit the present crime, the United States Supreme Court
has never held clearly that the introduction of propensity evidence violates due process. See
Estelle, 502 U.S. at 75 n. 5 (“we express no opinion on whether a state law would violate the
Due Process Clause if it permitted the use of ‘prior crimes’ evidence to show propensity to
commit a charged crime”); Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (rejecting
habeas petitioner’s challenge to propensity evidence, where petitioner could point to no Supreme
Court precedent establishing that admission of otherwise relevant propensity evidence violated
In the absence of clearly established Supreme Court law on this issue, AEDPA relief is
foreclosed. See Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) (“it is not an unreasonable
application of clearly established Federal law for a state court to decline to apply a specific legal
rule that has not been squarely established by this Court”) (citations and internal quotations
omitted); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases give no clear
answer to the question presented, . . . it cannot be said that the state court unreasonably applied
clearly established Federal law”) (citation, internal brackets and quotations omitted). Because
the Court of Appeal’s rejection of this claim was not contrary to, or an unreasonable application
of, any clearly established Federal law as determined by the United States Supreme Court,
Batton’s challenge to the admission of his prior convictions also must fail.
Prosecutorial Misconduct (Ground 3)
Batton further claims that the prosecutor committed misconduct through questions and
argument going to propensity and bad character. The Court of Appeal laid out the following
background to this claim:
Assuming for the sake of argument that none of these points were forfeited by
failure to object, as asserted by the People, [Batton] fails to show grounds for reversal.
The prosecutor cross-examined [Batton] about the two prior residential burglaries.
In one, he stayed outside as the lookout. In the other, he went into the house and took a
television. The prosecutor asked: “How many times have you burglarized a residence?
Not just got caught, but how many times have you done it?” The trial court sustained the
[Batton’s] unspecified objection. The prosecutor argued it went to [Batton’s] state of
mind. The court ruled, “No. I’m not going to make him answer that question. He has a
privilege not to incriminate himself if he has done anything like that. I don’t know that
he has, but he needn’t answer that particular question.”
The prosecutor next asked, “So you’re telling this jury that you’ve [committed
burglaries before] [b]ut in this case you basically got duped into committing a burglary
by this guy you described as a young guy?” The trial court sustained an objection that
the question was compound, overruled objections to reframed questions but asked
[Batton] if he understood them until the prosecutor moved on after eliciting only
[Batton’s] claim he had no idea it was a burglary. The prosecutor later returned to the
subject, asking if, “despite your experience with this very type of crime, nothing ever
raised your suspicions about any of this on this day, until the police showed up[?]”
[Batton] said that was correct.
The prosecutor later probed [Batton’s] testimony that he committed the prior
burglaries when he was a “youngster” 19 or 20 years old, whereas he was now 51.
[Batton] testified, “back then I was younger than what I am now, and I was into that life,
you know what I mean. Street life. And yes. And now by me being an older gentleman,
no, I’m not prone to go out and do burglaries, you know what I mean.” The prosecutor
asked, “But you’ve been around for a long time in that life, right? You’re saying it was a
previous—that it was when you were younger. That was a long stretch.” The trial court
sustained the defense objection that this was “straight up propensity evidence.”
In closing argument, the prosecutor told the jury [Batton] “just couldn’t be more
guilty of the crimes that he’s charged of—charged with.” The defense did not object but
did object on propensity grounds when the prosecutor said, “They were there for a
purpose. They were going to get everything they could get, all the valuables they could
get . . . . [¶] Mr. Wilkerson wasn’t in there doing that himself. [Batton], with his
background, was in there doing it.” Over [Batton’s] propensity objection, the trial court
ruled the argument fair, in light of the court’s Evidence Code section 1101, subdivision
Batton, 2015 WL 7307330, at *8.
To successfully raise a claim cognizable on habeas review based on a prosecutor’s
comments at trial, a petitioner must demonstrate that the prosecutor’s comments “‘so infected the
trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)). Under this standard, only egregious prosecutorial misconduct can give rise to a
constitutional claim. See Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995). A prosecutor’s
comments in summation constitute grounds for reversal only when the remarks caused actual
prejudice. Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (applying harmless error test to
claim of prosecutorial misconduct in summation).
None of the prosecutor’s comments now challenged by Batton were sufficiently
egregious to rise to a constitutional claim or cause actual prejudice. As the Court of Appeal
reasonably concluded in rejecting this claim:
[Batton] claims the prosecutor’s question about uncharged burglaries suggested
the prosecutor had knowledge there were some, and the court’s comment did not
disabuse the jury of this possibility. And he claims he was prejudiced by the
prosecution’s reference to his long stretch of criminality. We disagree. The trial court
sustained defense objections and instructed the jury to ignore any question to which the
court sustained an objection. We presume the jurors followed the instruction.
As to the prosecutor’s closing arguments, the prosecutor did not argue that
[Batton] “couldn’t be more guilty” based on his prior criminal history, as [Batton] asserts
on appeal. The prosecutor’s latter remark that Wilkerson was not acting alone and
[Batton] “with his background, was in there doing it” was permissible argument that
[Batton] was lying when he claimed he had no idea he was aiding a burglary. Moreover,
the prosecutor made clear he was not urging the jury to find [Batton] guilty based on
propensity. The prosecutor reminded the jury of the special instruction about the prior
convictions and said: “I can’t emphasize enough that it isn’t like, um, you know, a
residential burglary happened in his neighborhood, so he probably did it. It’s not that.
It’s given all the circumstances, the law recognizes that when he’s up here claiming that I
didn’t know a burglary was happening, that it’s so important to consider that he’s done
two burglaries before. [¶] When you’re assessing his credibility in deciding whether he
really believed that he had a right to be over there, his prior burglary convictions are
really important to consider. Because not only has he—is he caught red-handed at the
scene, when he says, ‘Oh, I didn’t know this was a burglary,’ well, this isn’t—you’re not
some young naïve guy. I mean, you’ve been convicted of multiple residential burglaries
before. [¶] So it goes to show that that story—and I’m going to get into details of the
story and how it’s obvious that it’s completely bogus in its own right. But his
background even shows that that’s not believable. Okay. [¶] So [Batton’s] testimony.
He says that he went to [the victim’s] house with a virtual stranger to help take property,
but he didn’t ask any questions, he didn’t have any idea what he was going to take, or
where he was going to take it. He didn’t know this guy hardly, Demetrius Wilkerson.
He didn’t know where he was going. He didn’t know why he was going. He didn’t
know where he was going to take anything. All these things, again, considering his
background. Okay. He is not a naïve kid. He knows. All right. [¶] He says he took
property, but he never entered the house. He even goes so far as to say he never crossed
the plane of the sliding glass door. And all that is, is just [Batton] knowing—he knows
what residential burglary is about. He knows the law of residential burglary. You know,
he’s been convicted of it twice. [¶] He—and he—you know, I don’t know if you guys
all remember or not, yesterday when he said that Demetrius Wilkerson reached out
outside the plane of the sliding glass door, it’s pretty unusual language. Well, it’s
straight from the jury instruction that you just heard saying that you have to enter the
residence, and just going inside, reaching in past a window screen is entering a residence.
So he was real careful to say he didn’t break the plane of the house. Okay? [¶] It’s
just—he’s a hustler.”
The prosecutor’s arguments were fair comment on the evidence to prove intent
and disprove [Batton’s] claim of mistake. And, as indicated, the jury was properly
instructed that the prior burglary convictions could be considered only in evaluating
credibility, “for the limited purpose of deciding whether or not the defendant entered a
residence, as charged here, with the intent to commit theft.”
There was no prejudicial prosecutorial misconduct.
Batton, 2015 WL 7307330, at *9-10.
That conclusion is both reasonable and fully supported by the record. Accordingly, the
Court cannot find the state courts’ denial of Batton’s prosecutorial misconduct claim
unreasonable or contrary to federal law, and Batton is not entitled to relief on it.
Cumulative Error (Ground 4)
Finally, Batton avers that the cumulative effect of the trial errors warrants reversal of the
judgment against him. “While the combined effect of multiple errors may violate due process
even when no single error amounts to a constitutional violation or requires reversal, habeas relief
is warranted only where the errors infect a trial with unfairness.” Peyton v. Cullen, 658 F.3d
890, 896-97 (9th Cir. 2011) (citing Chambers v. Mississippi, 401 U.S. 284, 298, 302-03 (1973)).
Such “infection” occurs where the combined effect of the errors had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623
(1993) (citation omitted). In other words, where the combined effect of individually harmless
errors renders a criminal defense “far less persuasive than it might [otherwise] have been,” the
resulting conviction violates due process. See Chambers, 401 U.S. at 294. As discussed
throughout this opinion, however, Batton does not allege any claims that amount to error, and
thus he demonstrates no errors that can accumulate to a level of a constitutional violation. See
Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002). Accordingly, Batton is not entitled to
relief on his cumulative error claim.
V. CONCLUSION AND ORDER
Batton is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. 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: March 8, 2018.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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