(HC)Becker v. Anglea

Filing 38

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/13/2020 RECOMMENDING the 19 first amended petition be denied; and the District Court decline to issue a certificate of appealability. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH BECKER,

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Petitioner,

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No. 2:19-cv-00013 KJM GGH P

v.

FINDINGS AND RECOMMENDATIONS

HUNTER ANGLEA,

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Respondent.

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Introduction

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Petitioner, a state prisoner proceeding pro se, has filed an amended petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 19. The matter was referred to the United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c). Respondent has

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filed an answer, and petitioner has filed a traverse. ECF Nos. 33, 37.

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Pro se habeas cases often bring murky issues to the fore. The potential for this is

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exacerbated when the pro se individual represented himself at the underlying trial, quasi-

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represented himself on appeal, and was completely pro se for post-conviction habeas petitions.

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This case involves the exacerbated murkiness of issues. After carefully reviewing the filings, and

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application of the applicable law, the undersigned recommends the amended habeas petition be

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denied.
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Procedural Background

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On December 10, 2015, petitioner was convicted by a jury trial in Amador County

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Superior Court for one count of issuing criminal threats in violation of California Penal Code §

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422(a). ECF No. 32-5 at 92. 1 The jury also found true sentencing enhancements pursuant to

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California Penal Code §§ 667(a)(1); 667.5(b). Id. Petitioner was sentenced 25 years to life plus 7

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years for issuing a criminal threat for a total term of 32 years to life in state prison. Id.

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Petitioner, through counsel, filed a direct appeal of his conviction on August 28, 2016.

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ECF No. 32-11. On February 15, 2018, the California Court of Appeal affirmed the judgment.

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ECF No. 32-14. On February 28, 2018, petitioner’s counsel filed a petition for review with the

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California Supreme Court. ECF No. 32-15. On May 9, 2018, the California Supreme Court

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denied petitioner’s petition for review. Id. On July 2, 2018, petitioner in pro se, filed a petition for

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writ of habeas corpus before the California Supreme Court, and was denied on October 31, 2018.

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ECF No. 32-24. 2
On December 26, 2018, petitioner filed his federal habeas petition. ECF No. 1. 3 On March

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5, 2019, respondent filed a motion to dismiss on the ground the petition contained unexhausted

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claims. ECF No. 13. After full submission of the parties’ briefing, the undersigned denied the

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motion to dismiss without prejudice to renewal and afforded petitioner an opportunity to amend

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his petition to properly determine what claims petitioner sought to raise in his petition and

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whether these claims were fully unexhausted. ECF No. 17. On April 16, 2019, petitioner filed his

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first amended habeas petition (FAP). ECF No. 19. On June 6, 2019, respondent filed a motion to

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dismiss on the ground the petition contained unexhausted claims. ECF No. 22. After full briefing

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The abstract of judgment was corrected on remand by the California Court of Appeal, Third
Appellate District to reflect defendant was convicted by jury and not by guilty plea. ECF No. 3214 at 2, 21.
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As related in the “Exhaustion Revisited” section, petitioner filed several pre-trial habeas corpus
petitions. None of those issues raised are pertinent to the trial issues petitioner claims should
require a vacating of his conviction in this petition.
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The court affords petitioner application of the mailbox rule as to all his habeas filings in state
court and in this federal court. Houston v. Lack, 487 U.S. 266, 275–76 (1988) (pro se prisoner
filing is dated from the date prisoner delivers it to prison authorities); Stillman v. Lamarque, 319
F.3d 1199, 1201 (9th Cir.2003) (mailbox rule applies to pro se prisoner who delivers habeas
petition to prison officials for the court within limitations period).
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of the parties’, on July 12, 2019, the undersigned issued findings and recommendations

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recommending the following: respondent’s motion to dismiss be denied; summary dismissal of

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petitioner’s Claim 2 and Claim 4’s part relating to Double Jeopardy; and upon adoption of these

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findings and recommendations, respondent be ordered to answer Claim 1, Claim 3, and the Due

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Process Evidentiary portion of Claim 4. ECF No. 25. On August 9, 2019, the District Judge

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adopted the July 12, 2019 findings and recommendations in full and ordered respondent to answer

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Claims 1, 3 and the Due Process evidentiary claim of Claim 4. ECF No. 30. On August 26, 2019,

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respondent filed an answer. ECF No. 33. On October 8, 2019, petitioner filed his traverse. ECF

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No. 37.

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This action proceeds on petitioner’s amended habeas petition and Claim 1, Claim 3, and

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the Due Process Evidentiary portion of Claim 4 only.

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Issues Presented

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For ease of reference, the issues remaining for adjudication are as follows:

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1. Claim 1—Insufficiency of the Evidence (the precise contours of this issue are further

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discussed in the section “Exhaustion Revisited,” set forth below);
2. Claim 3—Petitioner’s Right to an Impartial Jury (failure to interrogate jurors on their
state of mind after a wildfire in the area required excusals of some jurors); and
3. Claim 4—Admission of Prior Convictions (Due Process only).
Factual Background
The California Court of Appeal fairly set forth the facts germane to this habeas petition in
People v. Becker, No. C080909, 2018 WL 897499, at *1-2 (Cal. Ct. App. Feb. 15, 2018):

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Prosecution Evidence

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In August 2011, defendant was an inmate at Mule Creek State Prison,
where he used the library both as a priority and as a general user.
Priority users are inmates who have upcoming court cases for which
they are granted access to the library before recreational users. The
victim was the librarian in charge of the library. The victim testified
defendant was “constantly in the library just doing legal work and
recreational work.”

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On August 16, 2011, the victim informed the priority users present
in the library they had used more than their allotted four hours of
time that day. Thus, she planned to let nonpriority users receive their
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allotted two hours of time the next day before she would admit
priority users. Defendant “had an issue with that” and “kept saying
that he had upcoming court cases and what not and he needed access
to the library.” The victim asked the other inmates if they would grant
defendant an exception to use the library the following day. The other
inmates agreed to the exception. The victim informed defendant he
could come into the library the next day. Defendant responded with
comments, including that the victim “was creating an enemy
situation.” The victim told him if he “kept going” she would deny
him access the next day. Defendant “got really frustrated. Stood up,
slammed the computer desk shut really, really hard. And then he
looked directly at [the] inmate clerk and stated, if you keep this up, I
am going to break your neck or bash someone's face against the
wall.” The victim ordered defendant to leave the library, and
defendant immediately complied.
The next day, defendant was held in a temporary holding cell for
threatening the inmate clerk. Mule Creek State Prison Correctional
Officer Mark Campbell was responsible for watching the inmates in
the temporary holding cells. Officer Campbell heard defendant
loudly exclaim: “I am going to catch up with you some day you
fucking bitch and cut you up in little pieces.” Due to the proximity
of the library to defendant's holding cell, Officer Campbell believed
defendant's threat was loud enough the victim could have heard it. At
the time, Officer Campbell did not know whether the victim was in
the library. However, he observed there were no other women
around. Officer Campbell noted defendant “was complaining about
[the victim] and how she was out to get him.” Officer Campbell
instructed defendant to be quiet, but defendant “continued to make
threats, comments, suggest serious issues” with the victim.

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Also while defendant was in the temporary holding cell, Mule Creek
State Prison Officer Michael Rinehart observed defendant yelling
and screaming. Defendant was yelling, “You are going to pay for
this, you fucking bitch.” Officer Rinehart understood defendant's
threat to be directed toward the victim. Defendant did not appear to
be angry at any other inmates in the holding cell area.
Arthur Suarez was an inmate at Mule Creek State Prison and was
working in the program office nearby defendant's temporary holding
cell. Around noon on August 17, 2011, Suarez heard defendant yell,
“I will bump into you out there, you bitch. And when I see you, I am
going to chop you up in little pieces and kill you. I know you can
hear me. I know you can fucking hear me, bitch.”

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Around noon, the victim was in the library and could hear screaming
and yelling from the temporary holding cell area. She was able to
hear defendant's threat. The victim testified she heard defendant say,
“[Y]ou fucking liar, you fucking cunt. I will catch up to you one day.
You will be sorry.” The victim understood defendant to be
threatening her based on his use of the feminine pronoun and the
reference to “fucking cunt.”

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The victim became scared, and her heart raced. She testified
defendant's threat caused her to become “super nervous” and “super
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scared.” The victim waited until defendant was moved to
administrative segregation before going to talk with the lieutenant
and sergeant in the program office. The victim testified she was still
fearful of defendant at the time of trial. She believed defendant would
carry out his threat “if he got out.”

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Defense Evidence

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Defendant called as a witness Amador County District Attorney
Investigator Ronald Rios. Rios testified that during the course of his
investigation he learned defendant and Wilson, the inmate library
clerk, did not get along. Defendant once accused Wilson of
threatening him. On August 17, 2011, three inmates in addition to
defendant were in temporary holding cells. The other three inmates
were intoxicated on contraband alcohol. Before defendant was
moved into administrative segregation, an evaluation of defendant
noted defendant had an injury on his lower lip.

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Mule Creek State Prison Correctional Lieutenant Thomas Tyler
testified that on August 17, 2011, another woman in addition to the
victim regularly worked in the same building that housed the library.
Lieutenant Tyler acknowledged other women work at the prison and
frequently entered and exited the building containing the library.
However, Lieutenant Tyler could not recall which women other than
the victim were present in the building that day. Lieutenant Tyler
remembered being in his office and hearing defendant yelling but
could not determine what defendant was saying. Lieutenant Tyler
instructed Officer Campbell to go and write down what defendant
was saying. Campbell did so and a crime incident report was
initiated.

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John Ambrose is a licensed private investigator who assisted
defendant. Ambrose requested to interview the correctional officers
connected with the case, but all of them refused to speak with him.
Ambrose was unable to locate a paroled inmate who was connected
with the case. And Ambrose was unable to enter the prison library
because the prison was on lockdown the day he was there to
investigate. Ambrose was able to enter the area that contained the
temporary holding cells in which defendant was located when he
issued his threats. Each temporary holding cell was slightly larger
than a telephone booth and made of expanded metal screen. Ambrose
testified it appeared to him each temporary holding cell was
sufficiently secure to prevent an inmate from escaping. The prison
library is located approximately four to five steps from the temporary
holding cells.
Exhaustion Revisited
Normally, when a court issues a pretrial ruling on a motion to dismiss, the ruling becomes

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law of the case. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (“Under the law

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of the case doctrine, a court will generally refuse to reconsider an issue that has already been

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decided by the same court or a higher court in the same case.”). In his Answer, respondent has
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again asked that certain aspects of Claim 1 relating to insufficient evidence, and the “double

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jeopardy” claim of Claim 4 be found unexhausted. Specifically, respondent again urges that every

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element of Cal. Penal Code § 422 is unexhausted, except for the “immediacy of the threat”

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element. The undersigned finds that a clarification of the previous exhaustion ruling is necessary.

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Along with his petition for review to the California Supreme Court, and a post-trial habeas

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petition filed in the state supreme court, petitioner previously filed a myriad of pretrial and post-

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trial habeas petitions. He asserts that all of these filings prove that every element of Cal. Penal

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Code § 422 is at issue with respect to the insufficiency of the evidence claim. 4 However,

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petitioner mistakes his volume of filings as satisfying the exhaustion requirement instead of what

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precisely was filed in the California Supreme Court. Exhaustion requires that each and every

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federal claim which petitioner desires to be adjudicated in a federal habeas action be exhausted in

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the highest state court—presentation of an issue to a lower court, but not the state’s highest court,

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does not exhaust the issue. Reese v. Baldwin, 541 U.S. 27, 29 (2004).

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The only post-trial filings with the California Supreme Court were petitioner’s petition for
review and a habeas petition. ECF Nos. 32-15; 32-24. 5 The petition for review expressly limited

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As set forth in People v. Becker, supra, 2018 WL 897499, at *3:

A conviction of issuing a criminal threat requires the prosecution to
prove “all of the following: (1) that the defendant ‘willfully
threaten[ed] to commit a crime which will result in death or great
bodily injury to another person,’ (2) that the defendant made the
threat ‘with the specific intent that the statement ... is to be taken as
a threat, even if there is no intent of actually carrying it out,’ (3) that
the threat—which may be ‘made verbally, in writing, or by means of
an electronic communication device’—was ‘on its face and under the
circumstances in which it [was] made, ... so unequivocal,
unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of
execution of the threat,’ (4) that the threat actually caused the person
threatened ‘to be in sustained fear for his or her own safety or for his
or her immediate family’s safety,’ and (5) that the threatened
person’s fear was ‘reasonabl[e]’ under the circumstances.” ( People
v. Toledo (2001) 26 Cal.4th 221, 227–228.)
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Petitioner filed several habeas petitions for asserted pre-trial errors during the pendency of his
criminal action in Superior Court, e.g., denial of a Marsden motion and violation of attorneyclient privilege. However, even if one of these pre-trial motions commented that the evidence
was insufficient at preliminary hearing to allow the case to go to trial, that assertion does not
relate in any way to whether the evidence submitted at trial was insufficient.
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its insufficiency issue to be reviewed with respect to the “immediacy of the threat” element of

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Cal. Penal Code § 422. The issue presented to the state supreme court was as follows: “(1) Does

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the threat ‘I am going to catch up with you some day you fucking bitch and cut you up in little

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pieces’ convey the ‘immediate prospect of execution’ as required by Penal Code section 422

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where made to a civilian prison librarian by a prisoner caged in a steel padlocked cell serving an

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indefinite period in administrative segregation?” ECF No. 32-15 at 9 (Issues on Review). See

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also ECF No. 32-14 at 18-24 (briefing only the “immediacy” aspect of § 422). 6 The second post-

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trial filing with the California Supreme Court—a habeas petition—did not set forth the

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sufficiency of evidence issue at all. ECF No. 32-24 at 4 (setting forth only a failure to permit a

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substitution of appellate counsel issue). While the underlying ineffective assistance of appellate

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counsel for failure to brief all elements of § 422 was presented to the Court of Appeal, ECF No.

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23, and attached to the California Supreme Court petition, a claim of ineffective assistance of

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appellate counsel does not exhaust an underlying sufficiency of the evidence issue in either court.

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Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005); Rose v. Palmateer, 395 F.3d 1108,

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1111-1112 (9th Cir. 2005) Gaines v. Williams, No. 2:10-cv-01367-RLH, 2012 WL 1531968, at

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*1 (D. Nev. Apr. 30, 2012); Labon v. Martel, No. CV 14-6500-DSF RNB, 2015 WL 1321533, at

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*1 (C.D. Cal. Mar. 17, 2015); Meza v. Schroeder, No. CIV 071220-PHX-GMS DKD, 2010 WL

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1381095, at *7 (D. Ariz. Mar. 9, 2010). Nor does the mere attachment of a previous habeas

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petition change the nature of the issue expressly presented to the California Supreme Court. The

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record does not bear out petitioner’s contentions that his briefs and filings at all times raised the

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sufficiency of the evidence issue for every element of Section 422.

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Thus, when the undersigned found (as later adopted by the district judge) that the
sufficiency of the evidence issue had clearly been exhausted considering the citation of Jackson v.

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Even the in the Court of Appeal, petitioner concedes that the lower appellate court was directed
only to the “immediacy of threat” element of Section 422. See ECF No. 19 at 13. The appellate
court, although listing all the elements necessary for a §422 conviction as statutory background,
specifically directed its discussion to the “immediacy” issue. People v. Becker, supra, 2018 WL
897499, at *3 (“Defendant contends his conviction of issuing a criminal threat must be reversed
because the evidence did not show any immediate prospect the threat would be carried out. We
disagree.”) Accordingly, this was the only issue briefed in the Court of Appeal on direct review.
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Virginia, 443 U.S. 307 (1979) in the state supreme court Petition for Review, see ECF No. 15 at

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18, the undersigned was referencing only that theory of insufficient evidence concerning the

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“immediacy of the threat.” This was the issue specifically directed to and addressed by the Court

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of Appeal and Cal. Supreme Court on direct review. Petitioner’s requests that this court

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independently review the sufficiency of the evidence with respect to all elements of §422, or even

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now review the “communication of threat” element briefed for the first time in the traverse, ECF

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No. 37, are unexhausted and therefore denied. 7

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Finally, to the extent that petitioner believes that the Double Jeopardy provisions of the
Constitution precluded admission of prior convictions (Claim 4 in the FAP), that claim has

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already been summarily dismissed, and exhaustion, or non-exhaustion, of that theory is a moot

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point. Claim 4 proceeds on evidentiary due process grounds only. As explained in that section,

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supra, regarding this asserted due process error, exhaustion of the evidentiary issue is limited to

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whether use of the prior convictions, without specifying the facts of the convictions, was a due

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process error.

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The undersigned now proceeds to the merits of the exhausted claims.
Antiterrorism and Effective Death Penalty Act of 1996 Legal Standards

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

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

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Effective Death Penalty Act of 1996 (“AEDPA”). The text of § 2254(d) provides:

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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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Nor would the undersigned find that petitioner should be granted a stay pursuant to Rhines v.
Weber, 547 U.S. 198, 205-206 (2006), to further exhaust his contentions. Petitioner loudly
argued to the state appellate court in his post-trial habeas petition, ECF No. 23, that his counsel
was ineffective for failing to raise all elements of §422 as being insufficiently found at trial. His
failure to make a direct claim of evidence insufficiency before the state courts on all elements
cannot be considered diligent.
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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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For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings

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

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Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34,

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39 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529

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U.S. 362, 405-406 (2000)). Circuit precedent may not be “used to refine or sharpen a general

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principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has

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not announced.” Marshall v. Rodgers, 569 U.S. 58, 63-64 (2013) (citing Parker v. Matthews,

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587 U.S. 37, 48 (2012)). Nor may it be used to “determine whether a particular rule of law is so

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

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be accepted as correct. Id.

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

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

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Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634,

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640 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court

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may grant the writ if the state court identifies the correct governing legal principle from the U.S.

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Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s

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case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, supra, 529 U.S. at 413; Chia v.

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Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue

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the writ simply because that court concludes in its independent judgment that the relevant state-

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court decision applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable.” Williams, supra, 529 U.S. at 412. See also Schriro v.

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Landrigan, 550 U.S. 465, 473 (2007); Lockyer, supra, 538 U.S. at 75 (it is “not enough that a

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federal habeas court, ‘in its independent review of the legal question,’ is left with a ‘firm

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conviction’ that the state court was ‘erroneous.’”) “A state court’s determination that a claim

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lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the

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correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
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(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for

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obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s

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ruling on the claim being presented in federal court was so lacking in justification that there was

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an error well understood and comprehended in existing law beyond any possibility for fairminded

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disagreement.” Harrington, supra, 562 U.S. at 103.

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

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

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2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning

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from a previous state court decision, this court may consider both decisions to ascertain the

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

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banc). “[Section] 2254(d) does not require a state court to give reasons before its decision can be

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deemed to have been ‘adjudicated on the merits.’” Harrington, supra, 562 U.S. at 100. Rather,

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“[w]hen a federal claim has been presented to a state court and the state court has denied relief, it

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

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indication or state-law procedural principles to the contrary.” Id. at 99. This presumption may be

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overcome by a showing “there is reason to think some other explanation for the state court’s

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decision is more likely.” Id. at 99-100. Similarly, when a state court decision on a petitioner’s

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claims rejects some claims but does not expressly address a federal claim, a “federal habeas court

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must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.” Johnson

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v. Williams, 568 U.S. 289, 293 (2013). When it is clear, however, that a state court has not

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reached the merits of a petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254(d)

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does not apply and a federal habeas court must review the claim de novo. Stanley, supra, 633

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F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d

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1052, 1056 (9th Cir. 2003).

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

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of federal authority in arriving at its decision. Early v. Packer, 537 U.S. 3, 8 (2002). Where the

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state court reaches a decision on the merits but provides no reasoning to support its conclusion, a

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federal habeas court independently reviews the record to determine whether habeas corpus relief
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is available under § 2254(d). Stanley, supra, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848,

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853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional

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issue, but rather, the only method by which we can determine whether a silent state court decision

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is objectively unreasonable.” Id. at 853. Where no reasoned decision is available, the habeas

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petitioner still has the burden of “showing there was no reasonable basis for the state

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court to deny relief.” Harrington, supra, 562 U.S. at 98. A summary denial is presumed to be a

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denial on the merits of the petitioner’s claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir.

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2012). While the federal court cannot analyze just what the state court did when it issued a

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summary denial, the federal court must review the state court record to determine whether there

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was any “reasonable basis for the state court to deny relief.” Harrington, supra, 562 U.S. at 98.

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This court “must determine what arguments or theories ... could have supported, the state court’s

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decision; and then it must ask whether it is possible fairminded jurists could disagree that those

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arguments or theories are inconsistent with the application was unreasonable requires considering

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the rule’s specificity. The more general the rule, the more leeway courts have in reaching

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outcomes in case-by-case determinations.” Id. at 101 (quoting Knowles v. Mirzayance, 556 U.S.

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111, 122 (2009)). Emphasizing the stringency of this standard, which “stops short of imposing a

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complete bar of federal court relitigation of claims already rejected in state court proceedings[,]”

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the Supreme Court has cautioned that “even a strong case for relief does not mean the state

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court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, supra, 538 U.S. at 75).

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Discussion

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Claim One: Sufficiency of the Evidence (Immediacy of the Threat)

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Petitioner argues there was insufficient evidence to support his conviction for criminal

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threats pursuant to Cal. Penal Code 422 with respect to the immediacy of the threat element. The

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petition for review presented before the California Court of Appeal and the California Supreme

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Court raised the issue now pending before us. See ECF Nos. 32-15, 32-24. Accordingly, because

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the last explained decision regarding this issue is contained in the Court of Appeal opinion, the

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California Court of Appeal’s opinion on this issue is deemed adopted by the California Supreme

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Court and is entitled to AEDPA deference. See Ylst v. Nunnemaker, 501 U.S. 797, 802-06,

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(1991); Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016). 8

4

Sufficiency of the Evidence of Criminal Threat

5
6

Defendant contends his conviction of issuing a criminal
threat must be reversed because the evidence did not show any
immediate prospect the threat would be carried out. We disagree.

7

A.

8

Standard of Review

9

Challenges to the sufficiency of the evidence supporting a
conviction are reviewed under the substantial evidence standard of
review. (In re George T. (2004) 33 Cal.4th 620, 630.) “Under that
standard, ‘ “an appellate court reviews the entire record in the light
most favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from which
a rational trier of fact could find [the elements of the crime] beyond
a reasonable doubt.” ’ ” (Id. at pp. 630-631.) The substantial
evidence standard of review requires we “ ‘presume in support of
the judgment the existence of every fact the jury could reasonably
have deduced from the evidence.’ ” (People v. Manibusan (2013)
58 Cal.4th 40, 87.) “The conviction shall stand ‘unless it appears
“that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].” ’ ” (People v. Cravens (2012)
53 Cal.4th 500, 508, quoting People v. Bolin (1998) 18 Cal.4th 297,
331.)

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12
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15
16
17

B.

18

Criminal Threat

19

A conviction of issuing a criminal threat requires the
prosecution to prove “all of the following: (1) that the defendant
‘willfully threaten[ed] to commit a crime which will result in death
or great bodily injury to another person,’ (2) that the defendant
made the threat ‘with the specific intent that the statement . . . is to
be taken as a threat, even if there is no intent of actually carrying it

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24
25
26
27
28

8

Petitioner cannot have it both ways with respect to AEDPA deference. That is, he cannot argue
that the state courts never reached the federal issue, explicating only state law (therefore there
was no ruling on the federal issue), but then argue his federal sufficiency of the evidence issue is
exhausted with respect to the immediacy of the threat sufficiency issue. As stated in the
exhaustion section, the undersigned is liberally construing the filings before the California
Supreme Court as raising the federal issue even though the discussion of federal law in those
filings is scant (citation in one sentence to Jackson v. Virginia, 443 U.S. 307 (1979). In any
event, the undersigned’s findings regarding sufficiency of the evidence would be identical—
AEDPA deference or not.
12

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out,’ (3) that the threat—which may be ‘made verbally, in writing,
or by means of an electronic communication device’—was ‘on its
face and under the circumstances in which it [was] made, . . . so
unequivocal, unconditional, immediate, and specific as to convey to
the person threatened, a gravity of purpose and an immediate
prospect of execution of the threat,’ (4) that the threat actually
caused the person threatened ‘to be in sustained fear for his or her
own safety or for his or her immediate family’s safety,’ and (5) that
the threatened person’s fear was ‘reasonabl[e]’ under the
circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227228.)
The requirement that a threat under section 422 be
“immediate” has been construed to include threats “made to convince
the victim to do something ‘or else.’ ” (People v. Melhado (1998) 60
Cal.App.4th 1529, 1538, italics added.) As the Melhado court
recognized, “threats often have by their very nature some aspect of
conditionality.” (Ibid.) Nonetheless, these types of threats fall under
section 422 when they involve a “degree of seriousness and
imminence which is understood by the victim to be attached to the
future prospect of the threat being carried out, should the conditions
not be met.” (Ibid.)

12
C.
13
Defendant’s Threat to Kill the Victim
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We reject defendant’s contention the evidence of defendant’s threat
against the victim was insufficient because he issued the death threat
while locked inside a temporary holding cell. Defendant stated he
would “catch up to [the victim] one day,” and would kill her when
he would “bump into [her] out there.” Defendant indicated an
expectation he would eventually be released from administrative
segregation to threaten: “And when I see you, I am going to chop you
up in little pieces and kill you.”
The victim testified she believed defendant would carry out
his threat if he got out of administrative segregation. Her fear
reflected her experience he had “constantly” been in the prison
library and in close proximity to her. The victim’s past interactions
with defendant as part of her job supported her belief defendant
would carry out his threat when he had the opportunity. During their
last interaction, defendant had angrily slammed the computer desk,
threatened violence against the inmate library clerk, and stated the
victim had created “an enemy situation.” Defendant’s threat on
August 17, 2011, combined with his prior history with the victim,
provided substantial evidence for the jury to find defendant
expressed an intent to kill the victim as soon as he gained the
opportunity.
Defendant cites several cases involving threats by in-custody
defendants to support his argument he did not convey an immediate
prospect of executing his threat. None of these cases helps defendant.
Defendant’s attempt to distinguish these cases is unavailing. If
anything, the factual similarities support the finding of a criminal
13

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8
9
10

threat. In People v. Franz (2001) 88 Cal.App.4th 1426, this court
affirmed convictions of section 422, including one made when the
defendant was standing “behind the [police] officer, and defendant
‘swiped his hand across his throat’ perhaps twice, shook his head and
put his finger to his lips, which [the victim] understood to mean
defendant would slice his throat if he said anything to the police.”
(Id. at p. 1436.) In affirming the conviction, we rejected an argument
that “there is no substantial evidence of immediacy because the
police officer was present during the threat and thereafter escorted
defendant away from the scene, and neither [victim] saw defendant
again until prosecution of this matter.” (Id. at p. 1449.) This court
explained that “[t]he immediacy factor was present in the
surrounding circumstances that defendant was in a rage.” (Ibid.)
Moreover, we noted that although “the officer was present when
defendant made the threat, the threat and surrounding circumstances
were a reminder that the officer would not always be there to protect”
the victims. (Ibid.) The same reasoning applies in this case. Although
defendant could not immediately carry out his threat, he made clear
in his threat that he expected to eventually “bump into” the victim
and use the opportunity to kill her.

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26

For similar reasons, defendant misplaces his reliance on
People v. Gaut (2002) 95 Cal.App.4th 1425 (Gaut). Gaut involved a
conviction of section 422 for a threat issued while the defendant was
in jail. (Id. at p. 1427.) The defendant challenged his conviction on
grounds that “there was insufficient evidence to support his
conviction for violating section 422 as a matter of law because he
was incarcerated when the threats were made.” (Ibid.) The evidence
in Gaut showed the defendant had a history of threatening and
becoming physically violent with the victim. (Id. at p. 1431.) After
being arrested, the defendant repeatedly called the victim from jail
and issued numerous death threats against her. (Id. at p. 1428-1429.)
The victim attended the defendant’s parole violation hearing, which
caused her to fear defendant would soon be released. (Id. at p. 1432.)
Some of defendant’s subsequent threats “made reference to the fact
that she had only a few days until he would be released: ‘Just three
more days’; ‘You got three more days to apologize for your
disrespect’; and ‘Hey tramp. I’m gon[na’] spare you one more day.’
” (Id. at p. 1432.)
The Gaut court held the evidence showed defendant’s
“threats were specific, unequivocal, and immediate” even though
they were made while defendant was incarcerated. (95 Cal.App.4th
at p. 1432.) As Gaut notes, “ ‘A threat is not insufficient simply
because it does “not communicate a time or precise manner of
execution, section 422 does not require those details to be
expressed.” ’ ” (Id. at p. 1432.) This case, like Gaut, involves an
unequivocal threat that meets the definition of section 422 even
though the defendant was not immediately able to carry out the
threat. Section 422 “does not require an immediate ability to carry
out the threat.” (Ibid., citing People v. Lopez (1999) 74 Cal.App.4th
675, 679–680.)

27
28

For similar reasons, we reject defendant’s reliance on People
v. Mosley (2007) 155 Cal.App.4th 313 (Mosley) and People v.
14

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Wilson (2010) 186 Cal.App.4th 789 (Wilson). In Mosley, the
defendant was convicted of section 422 for issuing threats against
correctional officers that his fellow gang members would attack them
outside of prison. (155 Cal.App.4th at pp. 320-321.) The defendant
in Mosley argued that “he was known as a difficult inmate and the
deputies were in control of his confinement and limited movement”
so he could not have immediately carried out his threats. (Id. at p.
324.) The Mosley court affirmed the convictions based on evidence
of past violence on correctional officers both by defendant himself
and by gang members on other correctional officers. (Id. at pp. 325326.)
And, in Wilson, a defendant’s convictions of section 422 were
affirmed based on threats to find a correctional officer and “blast”
him when defendant would be released from prison in 10 months.
(186 Cal.App.4th at p. 814.) As the Wilson court explained, “The
only condition attached to the threat was that defendant intended to
carry it out when he was released in 10 months. Defendant
effectively made an appointment to kill [the victim] at his earliest
possible opportunity—he would perform the act the instant he was
set free.” (Ibid.) Although the time frame to fulfill the threat to kill
the victim in this case was not as certain, defendant’s threat was
unequivocal and indicated an intent to carry out the promised
violence at the earliest opportunity. Here, as in Wilson and Mosley,
the fact the threat could not be carried out immediately does not
render the evidence insufficient. Accordingly, we reject defendant’s
sufficiency of the evidence challenge.
ECF No. 32-14 at 6-10.
When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is

17

available if it is found that upon the record evidence adduced at trial, viewed in the light most

18

favorable to the prosecution, no rational trier of fact could have found “the essential elements of

19

the crime” proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

20

Jackson established a two-step inquiry for considering a challenge to a conviction based on

21

sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010).

22
23
24
25

First, a reviewing court must consider the evidence presented at trial
in the light most favorable to the prosecution. Jackson, 443 U.S. at
319, 99 S.Ct. 2781. […] [W]hen “faced with a record of historical
facts that supports conflicting inferences” a reviewing court “must
presume—even if it does not affirmatively appear in the record—that
the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.” Id. at 326, 99 S.Ct.
2781; see also McDaniel, 130 S.Ct. at 673–74.

26
27
28

Second, after viewing the evidence in the light most favorable to the
prosecution, the reviewing court must determine whether this
evidence, so viewed, is adequate to allow “any rational trier of fact
[to find] the essential elements of the crime beyond a reasonable
15

1

doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

2

[…]

3

At this second step, we must reverse the verdict if the evidence of
innocence, or lack of evidence of guilt, is such that all rational fact
finders would have to conclude that the evidence of guilt fails to
establish every element of the crime beyond a reasonable doubt.” See
id.

4
5
6
7

Id. at 1164–65.
And, where the trier of fact could draw conflicting inferences from the facts presented,

8

one favoring guilt and the other not, the reviewing court will assign the one which favors

9

conviction. McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994). However, the mere fact that

10

an inference can be assigned in favor of the government's case does not mean that the evidence on

11

a disputed crime element is sufficient—the inference, along with other evidence, must

12

demonstrate that a reasonable jury could find the element beyond a reasonable doubt. “‘[A]

13

reasonable inference is one that is supported by a chain of logic, rather than mere speculation

14

dressed up in the guise of evidence.’” United States v. Katakis, 800 F.3d 1017, 1024 (9th Cir.

15

2015) (quoting United States v. Del Toro-Barboza, 673 F.3d 1136, 1144 (9th Cir. 2012)).

16

Superimposed on these already stringent insufficiency standards is the AEDPA

17

requirement that even if a federal court were to initially find on its own that no reasonable jury

18

should have arrived at its conclusion, the federal court must actually determine that the state

19

appellate court could not have affirmed the verdict under the Jackson standard in the absence of

20

an unreasonable determination. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). A federal

21

habeas court determines sufficiency of the evidence in reference to the substantive elements of

22

the criminal offense as defined by state law. See Jackson, 443 U.S. at 324 n. 16; Chein v.

23

Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc).

24

Viewing the evidence most favorable to the prosecution, along with the additional layer of

25

AEDPA deference applied to the appellate court’s conclusion, the undersigned finds there is

26

sufficient evidence to support petitioner’s convictions for criminal threats, and specifically

27

sufficient evidence of the “immediacy” element. Based on the record before the court, any

28

rational trier of fact could have found beyond a reasonable doubt that petitioner made
16

1

“immediate” criminal threats as defined in Cal. Penal Code 422. The victim had heard petitioner

2

screaming at her from his holding cell (ECF No. 32-8 at 183) (“The Witness: I heard him say, you

3

fucking liar, you fucking cunt. I will catch up to you one day. You will be sorry.”)’ the victim was

4

scared and nervous after the incident (ECF No. 32-8 at 184, 185-186); the victim confirmed it

5

was petitioner who had made those statements (ECF No. 32-8 at 162-163, 184); a witness, Officer

6

Campbell, had heard petitioner state that “he was going to catch up to [the victim] one day and

7

cut [her] up into little pieces.” (ECF No. 32-8 at 185); the victim had taken the statements

8

seriously and believed petitioner would carry out what he said once he was released (ECF No. 32-

9

8 at 185); multiple witnesses heard petitioner screaming and yelling the derogatory statements

10

and assumed they were intended for the victim due to the days prior incident in the law library

11

(ECF No. 32-8 at 217-219, 252-253, 264-265). There was sufficient evidence presented to the

12

jury for the Court of Appeal to rationally find that petitioner’s threat met the “immediacy”

13

element of Section 422. Accordingly, petitioner’s first claim should be denied.

14

Claim Three: Denial of Right to an Impartial Jury

15

Petitioner argues the trial court’s failure to query the jurors’ ability to deliberate after their

16

return from recess due to a wildfire violated his Sixth Amendment right to an impartial jury.

17

Petitioner presented this claim to the California Court of Appeal, which affirmed the judgment on

18

February 15, 2018. ECF Nos. 32-11, 32-14. The California Supreme Court summarily denied the

19

petition for review with no explanation. ECF No. 32-15. Because the California Court of Appeal

20

was the last state court to issue a reasoned opinion on this issue, the undersigned gives AEDPA

21

deference to its opinion.

22
23

Whether the Trial Court Should Have Sua Sponte Asked Jurors
about the Effects of the Wildfire

25

Defendant next argues that the trial court committed reversible error
by failing to inquire whether jurors were unable to decide the case
fairly due to the then-burning Butte County wildfire. We are not
persuaded.

26

A.

27

Duty to Inquire of Jurors

24

28

As the California Supreme Court has explained, “[s]ection
17

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5
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1089 provides, in pertinent part: ‘If at any time, whether before or
after the final submission of the case to the jury, a juror dies or
becomes ill, or upon other good cause shown to the court is found to
be unable to perform his [or her] duty, . . . the court may order him
[or her] to be discharged and draw the name of an alternate . . . .’
[Citation.] ‘We review for abuse of discretion the trial court’s
determination to discharge a juror and order an alternate to serve.
[Citation.] If there is any substantial evidence supporting the trial
court’s ruling, we will uphold it. [Citation.] We also have stated,
however, that a juror’s inability to perform as a juror “ ‘must appear
in the record as a demonstrable reality.’ ” [Citation.]’ (People v.
Marshall (1996) 13 Cal.4th 799, 843.)

7
8
9
10
11
12
13
14
15

“The most common application of these statutes permits the
removal of a juror who becomes physically or emotionally unable to
continue to serve as a juror due to illness or other circumstances.
(People v. Fudge (1994) 7 Cal.4th 1075, 1100 [anxiety over new job
would affect deliberations]; People v. Johnson (1993) 6 Cal.4th 1, 23
Cal.Rptr.2d 593 [sleeping during trial]; People v. Espinoza (1992) 3
Cal.4th 806, 821 [sleeping during trial]; People v. Dell (1991) 232
Cal.App.3d 248 [juror involved in automobile accident]; Mitchell v.
Superior Court (1984) 155 Cal.App.3d 624, 629 [inability to
concentrate]; In re Devlin (1956) 139 Cal.App.2d 810, 812–813
[juror arrested on felony charge], disapproved on another ground in
Larios v. Superior Court (1979) 24 Cal.3d 324, 333.) [¶] These
statutes also have been applied to permit the removal of a juror who
refuses to deliberate, on the theory that such a juror is ‘unable to
perform his [or her] duty’ within the meaning of ...section 1089.”
(People v. Cleveland (2001) 25 Cal.4th 466, 474-475 (Cleveland),
fn. omitted.)

16
17
18
19
20
21

The Cleveland court cautioned that “not every incident
involving a juror’s conduct requires or warrants further investigation.
‘The decision whether to investigate the possibility of juror bias,
incompetence, or misconduct—like the ultimate decision to retain or
discharge a juror—rests within the sound discretion of the trial court.
[Citation.] . . . [¶] As [the Supreme Court’s] cases make clear, a
hearing is required only where the court possesses information
which, if proven to be true, would constitute “good cause” to doubt
a juror’s ability to perform his [or her] duties and would justify his
[or her] removal from the case. [Citation.]’ (People v. Ray (1996) 13
Cal.4th 313, 343.)” (Cleveland, supra, 25 Cal.4th at p. 478.)

22
B.
23
24
25
26
27
28

Speculation Regarding the Effect of the Wildfire on Jurors’
Ability to Deliberate
September 10, 2015, was the third day of trial in this case. On
that day, the trial court noted: “And the record should reflect that
yesterday a fire started near Amador near Jackson and has
progressively gotten worse. I just got a call from one of the jurors,
Juror Number 5, whose husband is disabled. And she needs to move
him out of the fire zone, so I let her go immediately. [¶] Some of you
are probably affected also, is that fair to say?” The court recognized
18

1

two jurors were affected and the wildfire presented an emergency.
The trial court recessed the trial for five days.

2
3
4
5
6
7
8
9
10
11
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13
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15
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23

Trial resumed five days later, on September 15, 2015. The
trial court noted it had excused two jurors for hardship – the juror
who need to help her disabled husband evacuate and a juror who was
living in a car while caring for her animals. Defendant stated the
circumstances were unfair to him because the trial concerned a
charge the victim experienced fear and the jurors were experiencing
fear due to the wildfire. The trial court rejected defendant’s reasoning
as follows:
“Well, first of all, I think the analogy of the fire danger and
fear and a 422 is extremely misplaced. I don’t buy that at all. It is true
to a point that some or more of the jurors, one or more of the jurors
or none of them, I don’t know their situation or mindset prior to the
lunch hour when everybody went out, including myself, and found
out we had lost power, which is when they were essentially excused.
Because that is when the evacuation orders came in. Be that as it may,
I don’t feel that there has been anything provided on the record yet
to justify an open inquiry as to jurors’ and alternatives’ mindsets. I
think that is a dangerous slippery slope which I am not going to do
because there is really no basis for me to make inferences of the
mindsets of the jurors on something that is not before the Court
evidenti[arily].” Although defendant noted his objection, he offered
no evidence to support the allegation jurors might not be able to
deliberate fairly due to the wildfire.
The trial court called roll and determined four jurors were not
present. Two jurors had previously been excused for good cause, and
the trial court learned another was in the hospital with a broken wrist.
The trial court then inquired: “Are any of you twelve whose names I
mention the subject of any evacuation orders?” The trial court
inquired whether an alternate would be able to be attentive.
Receiving a positive response, the trial court seated the alternate on
the jury. The missing juror never showed up and was replaced by the
second alternate.
On this record, we reject defendant’s speculation that jurors
were unable to fairly deliberate. The record contains no indication of
the size, scope, or effect of the wildfire on or after September 15,
2015. Moreover, the trial court displayed a willingness to consider
and excuse jurors for hardship connected with the wildfire.
ECF No. 32-14 at 14-17.

24

The Sixth Amendment right to jury trial “guarantees to the criminally accused a fair trial

25

by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). Failure to

26

provide “an accused a fair hearing violates even the minimal standards of due process.” Id.

27

“[D]ue process does not require a new trial every time a juror has been placed in a potentially

28

compromising situation.” Smith v. Phillips, 455 U.S. 209, 217 (1982). Instead, “[d]ue process
19

1

means a jury capable and willing to decide the case solely on the evidence before it, and a trial

2

judge ever watchful to prevent prejudicial occurrences and to determine the effect of such

3

occurrences when they happen.” Id. “However, the Supreme Court has stressed that the remedy

4

for allegations of jury bias is a hearing, in which the trial court determines the circumstances of

5

what transpired, the impact on the jurors, and whether or not it was prejudicial.” United States v.

6

Angulo, 4 F.3d 843, 847 (9th Cir. 1993) (citing Remmer v. United States, 347 U.S. 227, 229-230

7

(1954); Smith v. Phillips, 455 U.S. 209, 216 (1982)). “An evidentiary hearing is not mandated

8

every time there is an allegation of jury misconduct or bias.” Angulo, 4 F.3d at 847. “Rather, in

9

determining whether a hearing must be held, the court must consider the content of the

10

allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source.”

11

Id. The California juror substitution procedure provided in California Penal Code § 1089 permits

12

dismissal and substitution of alternate jurors for selected jurors “[i]f at any time, whether before

13

or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good

14

cause[.]” The Ninth Circuit has held that California Penal Code § 1089 preserves “the ‘essential

15

feature’ of the jury required by the Sixth and Fourteenth Amendments.” Miller v. Stagner, 757

16

F.2d 988, 995 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985) (citing Williams v. Florida, 399

17

U.S. 78, 100 (1970). When evaluating petitioner’s claim, the Ninth Circuit has held “on habeas

18

review, a trial court’s findings regarding juror fitness are entitled to special deference.” Perez v.

19

Marshall, 119 F.3d 1422, 1426 (9th Cir. 1997).

20

Review of the records indicates that the trial court did not violate petitioner’s

21

constitutional right to an impartial jury. The first juror, Juror Number 5, was excused for good

22

cause by the trial court due to having to move her disabled husband who was within the

23

evacuation zone. See ECF No. 9 at 134, 140. Noting the progression of the wildfire was getting

24

worse and impacting and threatening the property and lives of the jurors and their families, the

25

trial court recessed the trial due to the emergency the wildfire created. Id. at 134-138. After

26

resuming trial, the trial court excused Juror Number 10 for good cause because she was living in

27

her car and trying to take care of her animals and provide for them and as a result would be

28

unable to serve on the jury. Id. at 140-141. Neither the prosecution nor petitioner objected to Juror
20

1

Number 5 and Juror Number 10 being excused. Id. at 141. Juror Number 13 was excused as an

2

alternate for good cause for being in the hospital with a broken wrist. Id. at 154. Juror Number 4

3

failed to appear and was excused and replaced by an alternate, Juror Number 14. Id. at 157-158.

4

Neither party objected to the replacement of Juror Number 4. Id. at 157. However, petitioner filed

5

a motion for mistrial and requested the jurors be queried as to their ability to fairly deliberate

6

based on the wildfire subjecting the jurors to fear and thereby prejudicing petitioner who was on

7

trial for Cal. Penal Code 422 that required the finding of fear. Id. at 144-145. The trial court

8

denied the motion and found that “the analogy of the fire danger and fear and a [Cal. Penal Code]

9

422 [criminal threats]” “extremely misplaced.” Id. at 146. Although the wildfire subjected some

10

jurors to evacuation orders and loss of power, they were ultimately excused for a recess or

11

excused altogether for good cause. Id. The trial court decided there had not “been anything

12

provided on the record yet to justify an open inquiry as to the jurors’ and alternates’ mindsets.”

13

Id. The trial found it would be a “dangerous slippery slope” to do so as there was “really no

14

basis” for the trial court to “make inferences of the mindsets of the jurors on something that is not

15

before the Court evidentiary.” Id. Moreover, the court noted that “judges are extremely hesitant to

16

inquire of jurors what they are thinking while a trial is in progress. And [a court] can conduct an

17

examination of one or two depending on specific situations, but not a general situation [like here],

18

such as the fire to warrant inquiry on their mindset would be [a] big no-no.” Id. at 147.

19

Here, not only did the trial court have good cause to excuse the three jurors and an

20

alternate, but the trial court was also under no duty to inquire as to the jurors’ mindsets as to their

21

ability to fairly deliberate based on their exposure to a potential fear caused by the wildfire. See

22

Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (juror bias can be “implied or presumed from

23

the ‘potential for substantial emotional involvement, adversely affecting impartiality,’ inherent in

24

certain relationships” with third parties.) The trial court was mindful of the impact of the evidence

25

showing that the fear element in Cal. Penal Code §422 was, in general, the same potential fear the

26

jurors may have been experiencing due to the wildfire such that it could prejudicially impact

27

petitioner. However, the potential “fire” fear experienced by the excused jurors had no relevance

28

to petitioner’s case whatsoever—a fear of damage caused by mother nature does not relate to fear
21

1

engendered from a human issued threat. The trial court did not need to hold a hearing on what

2

was already obvious. Accordingly, based on the special deference this court must afford the

3

California Court of Appeal’s decision on this issue, the court finds there was no violation of

4

petitioner’s Sixth Amendment right to an impartial jury. The undersigned recommends this claim

5

be denied.

6

Part of Claim Four: Evidentiary Due Process Violation

7

One cannot blame respondent for being confused about what the real issue is with respect

8

to the admission of prior convictions involving criminal threats by petitioner; the undersigned is

9

confused as well. Claim 4 in the FAP, ECF No. 19, at 23, 27-31 is the proverbial “dog’s

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breakfast” of jumbled issues running from whether exhaustion of the issue has taken place, to

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primarily whether the use of prior convictions at the guilt phase, and then later at the bifurcated

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sentencing phase where the prior convictions were found true, violated constitutional double

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jeopardy protections. Petitioner headlines, at least in his traverse, the admission of his prior

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convictions led to the jury inferring that petitioner had an intent to make a threat to the victim in

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violation of his Fourteenth Amendment right to due process. ECF No. 37 at 13-15. But the

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precise federal due process issue is unclear from the discussion of that issue.

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Petitioner presented this claim to the California Court of Appeal, however, the California

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Court of Appeal found petitioner’s argument “imprecisely worded” and addressed three potential

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arguments petitioner was attempting to make. ECF No. 32-14 at 11. The California Court of

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Appeal specifically stated the following:

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Admission of Defendant’s Prior Convictions

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Defendant next contends the trial court “committed
prejudicial error when it permitted the prosecutor to inform the jury
of [defendant’s] 2006 criminal threat convictions on the issue of
‘intent’ during the guilt phase of trial.” This contention is imprecisely
worded and may refer to three different arguments: (1) the prosecutor
committed misconduct in arguing to the jury defendant’s intent could
be inferred from the very fact of prior convictions of section 422, (2)
the trial court misinstructed the jury on how it could use the prior acts
evidence, and (3) the trial court should have told the jury about the
circumstances of the prior convictions so that the jury could have
assessed for itself whether the prior convictions were sufficiently
similar to the charged offense to constitute proof of intent.
Defendant’s discussion of this issue meanders through all three of
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these arguments. We reject them.
ECF No. 34-14 at 11.
Claim 4 again demonstrates the murkiness of issues as a result of petitioner’s constant

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shift in theories. The undersigned finds the Court of Appeal’s discussion to be on point and

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correct. In the petition for review before the state supreme court, the briefing before the state

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supreme court in the petition for review was a cut and paste from the appellate briefing. Compare

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ECF No. 32-11 at 19-24, with ECF No. 32-15 at 24-29.

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It is not possible to give AEDPA deference to the Court of Appeal’s decision in that all of

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the three sub-issues were decided on procedural grounds, i.e., prosecutor’s argument forfeited for

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lack of objection; jury instruction argument forfeited by lack of proper presentation; and

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underlying facts issue forfeited by failure to object. See People v. Becker, supra, 2018 WL

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897499, at *5, 6. The California Supreme Court’s silent denial on the petition for review

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presumably adopted that explanation. For whatever reason, respondent has not asked that the due

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process part of Claim 4 be procedurally defaulted.
However, there need be no discussion of pre-AEDPA “prior bad acts” case law, e.g.,

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McKinney v. Rees, 993 F.2d 1378 (9th Cir. 1993), in that petitioner, acting as his own counsel

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stipulated to the error he claims here. Certainly, petitioner objected initially to any admission of

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prior criminal acts per se, but that is not the issue, nor could it be. Both state and federal law

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permit the use of prior misconduct to assist in proving certain facts. Cal Evid. Code § 1101 9; Fed.

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Cal. Evidence Code Section 1101 provides:

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§ 1101. Evidence of character to prove conduct

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(a) Except as provided in this section and in Sections 1102, 1103,
1108, and 1109, evidence of a person's character or a trait of his or
her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified
occasion.

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(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, or whether
a defendant in a prosecution for an unlawful sexual act or attempted
unlawful sexual act did not reasonably and in good faith believe that
23

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R. Evid. 404(b)(2). There is no authority that the introduction of prior criminal acts is

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unconstitutional per se. The only issue preserved for federal habeas review is that the lack of

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specificity of facts violated due process in that admission of the prior convictions were more

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prejudicial than probative, i.e., how could the jury know how to analyze the prior convictions for

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a limited purpose in the absence of facts. 10 But petitioner stipulated to keeping the facts out

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because he thought them too prejudicial. Relevant portions of the trial transcripts are provided:

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THE COURT: I see what you're doing. Let me ask a question since
I don't know the underlying basis for all of 13 these convictions on
that August 23rd date, 2006. Were these, if you know, maybe you
don't know, but Mr. Trudgen, were these incidents which were
threats similar to what we have today or are they threats like bomb
threats I have not obtained the 21 reports.?
MR. TRUDGEN: I am under the impression that they were bomb
threats by telephone, and that the bomb threats and 422 convictions
were somewhat in the alternative, but I am only gleaning that from
the 969(b.) I have not obtained the reports.

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I am however only in particular looking to present these to the jury
only for the idea that it would tend to show intent. And so I could
work into the stipulation specific language borrowed from the
CalCrim that suggests that it only goes to show that if the jury finds
that he said what he said and it was directed at Ms. Hinkel as alleged.

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[…]

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MR. BECKER: Your Honor, rather than that instruction using those
specific adverbs, it could be more of a generic instruction to just say
the defendant has suffered prior convictions of 422 rather than trying
to make it more sounding of a harmful language that there are several
or that there is 26. It can just say the defendant has suffered prior
convictions.

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THE COURT: Okay. Would you stipulate to that?
the victim consented) other than his or her disposition to commit such
an act.
(c) Nothing in this section affects the admissibility of evidence
offered to support or attack the credibility of a witness.
10
Petitioner did not in any way raise or brief a prosecutorial misconduct issue, not does he plead
or brief in the slightest how the jury may have been mis-instructed. Indeed, his argument that the
specificity of the factual circumstances of the prior convictions depends, in part, on the
instruction that was given advising the jury that it should consider such circumstances. The court
will not raise issues for petitioner, nor will it adjudicate an issue not raised herein. The failure to
meaningful present or brief an issue waives it. United States v. Vought, 69 F.3d 1498, 1501 (9th
Cir. 1995); Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988).
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MR. BECKER: Yes.

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MR. TRUDGEN: I would join in that.

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THE COURT: Okay.

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MR. BECKER: Over the same objection.

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THE COURT: You preserve your objection to any of it being
admitted. That actually is perfect. Let's just state on August 23rd,
2006, he was convicted of several felony counts, instead of criminal
threats, we will say violations of Penal Code Section 422. Is that
okay?

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MR. BECKER: Yes. That is the lesser.

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MR. TRUDGEN: May I see the stipulation again? I somehow
misplaced mine.

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THE COURT: I am going to put just the one paragraph. I think that
resolves that. I have stricken criminal threats because Section 422 is
going to be repeated in the jury instruction. I mean, in the verdict
form so they will know the section.
MR. TRUDGEN: If I understood Mr. Becker correctly, I think he
was more concerned about several.

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THE COURT: Do you object to the several or what did you object
to?
MR. BECKER: In other words, this could read, that defendant,
Joseph Becker, was convicted of felony counts, criminal threats, or
just we can leave it as you did. Joseph Becker was convicted of
felony counts of Penal Code Section 422 leaving out several.

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MR. TRUDGEN: I am satisfied leaving out several.
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THE COURT: Okay.
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MR. TRUDGEN: I would like the criminal threats words to be in
there.

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MR. BECKER: They will see that anyway.

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THE COURT: That is fine. That will be read to and not given to them
as an exhibit, and I will ask for a stipulation on the record and that is
it. Okay. Let me read the stipulation so there is no -- I need to change
it again.

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MR. TRUDGEN: I believe that both sides are happy with just
striking the word ''several."

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THE COURT: Yes.

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MR. TRUDGEN: And then striking the phrase after criminal threats.
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THE COURT: After criminal threats, the whole rest of the
paragraphs?

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MR. TRUDGEN: In violation of Penal Code Section 422.
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MR. BECKER: That is fine.
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THE COURT: Do you want to leave just several felony counts of
criminal threats? Is that what you are saying?

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MR. TRUDGEN: It is. And I think that is what Mr. Becker is saying.

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THE COURT: Is that okay with you, Mr. Becker?

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MR. BECKER: Yes. Then period after threats, then the rest redacted.

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THE COURT: That is okay.

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ECF No. 32-8 at 237-238; 245-247.
Petitioner completely misconstrued the purpose for the other crimes admission when he

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objected “101%.” He thought they were to be used to impeach his testimony, and that he was not

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testifying. ECF No. 32-8 at 233-234. Of course, in hindsight, petitioner as his own attorney,

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should have objected on the basis that the specific facts had to be shown to the jury so that it

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could determine the §1101 pertinence, but that the specific facts were much more harmful than

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probative. Thus, the objection would continue—the prior convictions needed to be kept out. To

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this day, we have not much idea of the specifics of the prior convictions, except that the facts

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there involved bomb threats. For petitioner to object on erroneous grounds, then accept, and even

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encourage, the factless introduction of prior convictions, and then claim in federal court that

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without the facts the jury was “at sea” without the conviction details in terms of how to use the

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prior convictions, is a road too far to travel. Petitioner is unable to state a claim that as his own

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attorney, he was ineffective in objecting to the prior criminal conviction evidence. 11

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This is not to say that the undersigned has no qualms about admission of the prior convictions.
While a sanitized conviction record is often used when impeaching a testifying witness, including
a defendant who testifies, it is difficult to conceive how such a tactic could be used when using
the prior conviction to assist in demonstrating intent, or identity, modus operandi, etc. as required
by Cal. Evid. Code Sec. 1101 and Fed. R. Evid. 404(b). For example—assuming identity of a
defendant-as-robber was a live issue in an ongoing criminal trial—if the defendant had previous
robbery convictions using a Ronald McDonald clown mask when attempting those robberies, and
the robber in the instant criminal trial used such a clown mask, that specific fact tends to show the
identity of defendant as the robber for the ongoing criminal trial. But just showing that the
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But even if the undersigned is in error with respect to whether petitioner made his own

2

error and failed to preserve the proper objection, it is clear that no substantially prejudicial effect

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was felt because of the introduction of the other crimes evidence. Brecht. v. Abrahamson, 507

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U.S. 619 (1993). The facts of this case demonstrate how hard petitioner worked to ensure that his

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victim heard his threat, i.e., how much he intended to convey the threat. The threats were

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multiple, loud and long; at one point, petitioner was yelling in vulgar terms that he knew the

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victim could hear him. The only logical inference from such conduct is that petitioner fully

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intended the victim to hear what he was saying. Given the facts, intent to convey the threat was

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the easiest element of Cal. Penal Code § 422 to prove. Introduction of extraneous other crimes

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involving petitioner’s other threats could have had little impact on the finding of intent. Nor

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would the introduction of the other crimes have much effect on the other elements of § 422 as

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those elements are fairly case specific. For example, whether there was a sufficient immediacy of

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the threat in petitioner’s case would not be affected by other crime evidence.

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Claim 4’s evidentiary due process claim should be fully denied.
Conclusion

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Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must

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

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certificate of appealability may issue only “if the applicant has made a substantial showing of the

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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings

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and recommendations, a substantial showing of the denial of a constitutional right has not been

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made in this case.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. The first amended habeas petition (ECF No. 19) should be DENIED; and

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2. The District Court decline to issue a certificate of appealability.

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

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defendant had been previously convicted of robbery has little understandable pertinence to the
identity issue. Turning to this case, the fact per se that petitioner had prior threat convictions does
not say much about whether the intent facts shown in those previous convictions are relevant to
the conviction at issue.
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1

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

2

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

3

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

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

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 13, 2020

9

/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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