Knoller v. Miller
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING IN PART CERTIFICATE OF APPEALABILITY re 1 Petition for Writ of Habeas Corpus, filed by Marjorie Knoller. Signed by Judge Jon S. Tigar on July 3, 2014. (wsn, COURT STAFF) (Filed on 7/3/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MARJORIE KNOLLER.,
Case No. 12-cv-0996-JST
Plaintiff,
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v.
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WALTER MILLER, Warden, Valley State
Prison for Women
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United States District Court
Northern District of California
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Defendants.
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
GRANTING IN PART CERTIFICATE
OF APPEALABILITY
Re: ECF No. 1
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Before the Court is the habeas corpus petition, filed by Petitioner Marjorie Knoller
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(“Petitioner”) pursuant to 28 U.S.C. § 2254, challenging her detention for second degree murder.
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ECF No. 1. The Court will deny the petition.
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I.
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PROCEDURAL HISTORY
In 2002, a Los Angeles Superior Court jury found Petitioner guilty of second degree
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murder, as well as involuntary manslaughter and ownership of a mischievous animal causing
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death, in connection with a fatal dog-mauling that occurred on January 21, 2001.
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The trial court judge, the Honorable James Warren, granted Petitioner’s motion for a new
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trial on the murder charge, after concluding that the evidence did not support a finding that
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Petitioner possessed the implied malice necessary for a murder conviction, since the evidence did
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not demonstrate that she contemplated and disregarded a high probability that her actions on
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January 21 would cause another to die. Petition for Writ of Habeas Corpus (“Petition”), Ex. B,
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ECF No. 1-2 at 41. In 2005, a divided Court of Appeal panel reversed the order of a new trial on
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the murder conviction, concluding that Judge Warren had applied a legally incorrect definition of
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implied malice. Petition, Ex. A, ECF No. 1-1 at 129. In 2007, the California Supreme Court
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concluded that Judge Warren had applied a definition of implied malice that was too limited, while
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the Court of Appeal had applied a definition that was too broad. The Supreme Court reversed the
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Court of Appeal’s decision and remanded the case for reconsideration of defendant’s motion for a
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new trial in light of this standard. People v. Knoller, 41 Cal.4th 139, 159 (2007).1
In August 2008, following briefing and oral argument, newly assigned trial court Judge
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Charlotte Woolard denied Petitioner’s motion for a new trial. Judge Woolard sentenced Petitioner
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to a term of 15 years to life. Petitioner directly appealed the judgment in the California Court of
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Appeal. Petition, Ex. B. In 2010, in a reasoned opinion, the California Court of Appeal ordered
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the abstract of judgment amended to reflect the judgment of the trial court and in all other respects
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affirmed the judgment. Id. The California Supreme Court summarily denied the petition for
review. Petition, Ex. C, ECF No. 1-3. This petition followed.
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II.
The following background facts describing the crime are from the opinion of the California
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STATEMENT OF FACTS
Supreme Court.2
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In 1998, Pelican Bay State Prison inmates Paul Schneider and Dale
Bretches, both members of the Aryan Brotherhood prison gang,
sought to engage in a business of buying, raising, and breeding Presa
Canario dogs. This breed of dog tends to be very large, weighing
over 100 pounds, and reaching over five feet tall when standing on
its hind legs. A document found in defendants' apartment describes
the Presa Canario as “a gripping dog ... [¶] ... always used and bred
for combat and guard ... [and] used extensively for fighting....”
Prisoners Schneider and Bretches relied on outside contacts,
including Brenda Storey and Janet Coumbs, to carry out their Presa
Canario business. Schneider told Coumbs that she should raise the
dogs.
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As of May 1998, Coumbs possessed four such dogs, named Bane,
Isis, Hera, and Fury. Hera and Fury broke out of their fenced yard
and attacked Coumbs's sheep. Hera killed at least one of the sheep
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This habeas petition does not challenge the constitutionality of the “implied malice” standard that
was at issue in the 2005-2007 appeals. However, Petitioner argues that, since there was no
evidence she possessed any specific intent to kill, the errors she identifies in her trial make it more
likely the jury may have been swayed towards concluding that she possessed the requisite implied
malice.
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This summary is presumed correct. Hernandez v. Small, 282 F.3d 1132, 1135, n. 1 (9th Cir.
2002); 28 U.S.C. § 2254(e)(1).
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and also a cat belonging to Coumbs's daughter. Coumbs
acknowledged that Bane ate his doghouse and may have joined Fury
in killing a sheep.
Defendants Knoller and Noel, who were attorneys representing a
prison guard at Pelican Bay State Prison, met inmate Schneider at
the prison sometime in 1999. In October 1999, defendants filed a
lawsuit on behalf of Brenda Storey against Coumbs over the
ownership and custody of the four dogs. Coumbs decided not to
contest the lawsuit and to turn the dogs over to defendants. Coumbs
warned Knoller that the dogs had killed Coumbs's sheep, but Knoller
did not seem to care.
Defendant Knoller thereafter contacted Dr. Donald Martin, a
veterinarian for 49 years, and on March 26, 2000, he examined and
vaccinated the dogs. With his bill to Knoller, Dr. Martin included a
letter, which said in part: “I would be professionally amiss [sic ] if I
did not mention the following, so that you can be prepared. These
dogs are huge, approximately weighing in the neighborhood of 100
pounds each. They have had no training or discipline of any sort.
They were a problem to even get to, let alone to vaccinate. You
mentioned having a professional hauler gather them up and taking
them.... Usually this would be done in crates, but I doubt one could
get them into anything short of a livestock trailer, and if let loose
they would have a battle. [¶] To add to this, these animals would be
a liability in any household, reminding me of the recent attack in
Tehama County to a boy by large dogs. He lost his arm and
disfigured his face. The historic romance of the warrior dog, the
personal guard dog, the gaming dog, etc. may sound good but hardly
fits into life today.” Knoller thanked Dr. Martin for the information
and said she would pass it on to her client.
On April 1, 2000, both defendants and a professional dog handler
took custody of the dogs from Coumbs. Bane then weighed 150
pounds and Hera 130 pounds. Coumbs told both defendants that she
was worried about the dogs, that Hera and Fury should be shot, and
that she was also concerned about Bane and Isis.
Hera remained for a short time at a kennel in San Mateo County
while Bane was sent to a facility in Los Angeles County. Both
defendants soon became concerned for the health of the two dogs.
On April 30, 2000, defendants brought Hera to their sixth-floor
apartment at 2398 Pacific Avenue in San Francisco. Bane arrived in
September 2000. Codefendant Noel purchased dog licenses,
registering himself and Knoller as the dogs' owners.
A later search of defendants' apartment showed that they frequently
exchanged letters with Pelican Bay inmates Schneider and Bretches.
Over 100 letters were sent and received between March and
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December 2000, apparently under the guise of attorney-client
correspondence. In the letters, defendants discussed a commercial
breeding operation, considering various names such as GuerraHund
Kennels, Wardog, and finally settling on Dog–O–War. Prisoners
Schneider and Bretches' notes on a Web site for the business
described Bane as “Wardog,” and “Bringer of Death: Ruin:
Destruction.”
Between the time defendants Noel and Knoller brought the dogs to
their sixth-floor apartment in San Francisco and the date of the fatal
mauling of Diane Whipple on January 26, 2001, there were about 30
incidents of the two dogs being out of control or threatening humans
and other dogs. Neighbors mentioned seeing the two dogs
unattended on the sixth floor and running down the hall.
Codefendant Noel's letters to prisoner Schneider confirmed this,
mentioning one incident when defendant Knoller had to let go of the
two dogs as they broke from her grasp and ran to the end of the hall.
Noel described how the dogs even pushed past him and “took off
side by side down the hall toward the elevator in a celebratory
stampede!! 240 lbs. of Presa wall to wall moving at top speed!!!” In
a letter to inmate Schneider, defendant Knoller admitted not having
the upper body strength to handle Bane and having trouble
controlling Hera.
When neighbors complained to defendants Noel and Knoller about
the two dogs, defendants responded callously, if at all. In one
incident, neighbors Stephen and Aimee West were walking their dog
in a nearby park when Hera attacked their dog and “latched on” to
the dog's snout. Noel was unable to separate the dogs, but Aimee
threw her keys at Hera, startling Hera and causing Hera to release
her grip on the Wests' dog. On another day, Stephen West was
walking his dog when he encountered Noel with Bane. Bane lunged
toward West's dog, but Noel managed to pull Bane back. When
Stephen West next saw Noel, West suggested that Noel muzzle the
dogs and talk to dog trainer Mario Montepeque about training them;
Noel replied there was no need to do so. Defendants Knoller and
Noel later encountered Montepeque, who advised defendants to
have their dogs trained and to use a choke collar. Defendants
disregarded this advice. On still another occasion, when dog walker
Lynn Gaines was walking a dog, Gaines told Noel that he should put
a muzzle on Bane; Noel called her a “bitch” and said the dog Gaines
was walking was the problem.
There were also instances when defendants' two dogs attacked or
threatened people. David Moser, a fellow resident in the apartment
building, slipped by defendants Knoller and Noel in the hallway
only to have their dog Hera bite him on the “rear end.” When he
exclaimed, “Your dog just bit me,” Noel replied, “Um, interesting.”
Neither defendant apologized to Moser or reprimanded the dog.
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Another resident, Jill Cowen Davis, was eight months pregnant
when one of the dogs, in the presence of both Knoller and Noel,
suddenly growled and lunged toward her stomach with its mouth
open and teeth bared. Noel jerked the dog by the leash, but he did
not apologize to Davis. Postal carrier John Watanabe testified that
both dogs, unleashed, had charged him. He said the dogs were in a
“snarling frenzy” and he was “terrified for [his] life.” When he
stepped behind his mail cart, the dogs went back to Knoller and
Noel. On still another occasion, the two dogs lunged at a six-yearold boy walking to school; they were stopped less than a foot from
him.
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One time, codefendant Noel himself suffered a severe injury to his
finger when Bane bit him during a fight with another dog. The
wound required surgery, and Noel had to wear a splint on his arm
and have two steel pins placed in his hand for eight to 10 weeks.
Mauling victim Diane Whipple and her partner Sharon Smith lived
in a sixth-floor apartment across a lobby from defendants. Smith
encountered defendants' two dogs as often as once a week. In early
December 2000, Whipple called Smith at work to say, with some
panic in her voice, that one of the dogs had bitten her. Whipple had
come upon codefendant Noel in the lobby with one of the dogs,
which lunged at her and bit her in the hand. Whipple did not seek
medical treatment for three deep, red indentations on one hand.
Whipple made every effort to avoid defendants' dogs, checking the
hallway before she went out and becoming anxious while waiting
for the elevator for fear the dogs would be inside. She and Smith did
not complain to apartment management because they wanted
nothing to do with defendants Knoller and Noel.
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On January 26, 2001, Whipple telephoned Smith to say she was
going home early. At 4:00 p.m., Esther Birkmaier, a neighbor who
lived across the hall from Whipple, heard dogs barking and a
woman's “panic-stricken” voice calling, “Help me, help me.”
Looking through the peephole in her front door, Birkmaier saw
Whipple lying facedown on the floor just over the threshold of her
apartment with what appeared to be a dog on top of her. Birkmaier
saw no one else in the hallway. Afraid to open the door, Birkmaier
called 911, the emergency telephone number, and at the same time
heard a voice yelling, “No, no, no” and “Get off.” When Birkmaier
again approached her door, she could hear barking and growling
directly outside and a banging against a door. She heard a voice yell,
“Get off, get off, no, no, stop, stop.” She chained her door and again
looked through the peephole. Whipple's body was gone and
groceries were strewn about the hallway. Birkmaier called 911 a
second time.
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At 4:12 p.m., San Francisco Police Officers Sidney Laws and Leslie
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Forrestal arrived in response to Birkmaier's telephone calls. They
saw Whipple's body in the hallway; her clothing had been
completely ripped off, her entire body was covered with wounds,
and she was bleeding profusely. Defendant Knoller and the two dogs
were not in sight.
The officers called for an ambulance. Shortly thereafter, defendant
Knoller emerged from her apartment. She did not ask about
Whipple's condition but merely told the officers she was looking for
her keys, which she found just inside the door to Whipple's
apartment.
An emergency medical technician administered first aid to Whipple,
who had a large, profusely bleeding wound to her neck. The wound
was too large to halt the bleeding, and Whipple's pulse and breathing
stopped as paramedics arrived. She was revived but died shortly
after reaching the hospital.
An autopsy revealed over 77 discrete injuries covering Whipple's
body “from head to toe.” The most significant were lacerations
damaging her jugular vein and her carotid artery and crushing her
larynx, injuries typically inflicted by predatory animals to kill their
prey. The medical examiner stated that although earlier medical
attention would have increased Whipple's chances of survival, she
might ultimately have died anyway because she had lost one-third or
more of her blood at the scene. Plaster molds of the two dogs' teeth
showed that the bite injuries to Whipple's neck were consistent with
Bane's teeth.
Animal control officer Andrea Runge asked defendant Knoller to
sign over custody of the dogs for euthanasia. Knoller, whom Runge
described as “oddly calm,” agreed to sign over Bane, but she refused
to sign over Hera for euthanasia and she refused to help the animal
control officers with the animals, saying she was “unable to handle
the dogs.” When tranquilizer darts malfunctioned and failed to quiet
Bane, “come-along” poles were used by animal control officers
backed up by officers with guns drawn. Hera too was controlled by
officers with “come-along” poles.
On February 8, 2001, both defendants appeared on the television
show Good Morning America and basically blamed mauling victim
Whipple for her own death. Defendant Knoller claimed that
Whipple had already opened her apartment door when something
about her interested Bane. He broke away, pulled Knoller across the
lobby, and jumped up on Whipple, putting his paws on either side of
her. Knoller said she pushed Whipple into Whipple's apartment, fell
on top of Whipple, and then tried to shield Whipple with her own
body. But Whipple's struggles must have been misinterpreted by the
dog, and when Whipple struck Knoller with her fist, the dog began
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to bite Whipple. Knoller claimed that Whipple had ample
opportunity to just slam the door of her apartment or stay still on the
floor.
Codefendant Noel did not testify, but he presented evidence of
positive encounters between the two dogs and veterinarians, friends,
and neighbors. Defendant Knoller did testify in her own defense.
She referred to herself, her husband, and Pelican Bay prisoner
Schneider as the “triad,” and she spoke of Schneider as her “son.”
The two dogs had become a focal point in the relationship. She
denied reading literature in the apartment referring to the vicious
nature of the dogs. She thought the dogs had no personality
problems requiring a professional trainer. She denied receiving or
otherwise discounted any warnings about the two dogs' behavior and
she maintained that virtually all the witnesses testifying to incidents
with the dogs were lying. She said she never walked both dogs
together. Ordinarily, she would walk Hera and codefendant Noel
would walk Bane, because she had insufficient body strength to
control Bane. But after Noel was injured while breaking up a fight
between Bane and another dog, Knoller would sometimes walk
Bane, always on a leash. She said she had just returned from
walking Bane on the roof of the apartment building, and had opened
the door to her apartment while holding Bane's leash, when Bane
dragged her back across the lobby toward Whipple, who had just
opened the door to her own apartment. The other dog, Hera, left
defendants' apartment and joined Bane, who attacked Whipple.
Knoller said she threw herself on Whipple to save her. She denied
that Hera participated in the attack. She acknowledged not calling
911 to get help for Whipple.
Asked whether she denied responsibility for the attack on Whipple,
Knoller gave this reply: “I said in an interview that I wasn't
responsible but it wasn't for the—it wasn't in regard to what Bane
had done, it was in regard to knowing whether he would do that or
not. And I had no idea that he would ever do anything like that to
anybody. How can you anticipate something like that? It's a totally
bizarre event. I mean how could you anticipate that a dog that you
know that is gentle and loving and affectionate would do something
so horrible and brutal and disgusting and gruesome to anybody?
How could you imagine that happening?”
In rebuttal, the prosecution presented evidence that the minor
character of defendant Knoller's injuries—principally bruising to the
hands—indicated that she had not been as involved in trying to
protect mauling victim Whipple as she had claimed. Dr. Randall
Lockwood, the prosecution's expert on dog behavior, testified that
good behavior by a dog on some occasions does not preclude
aggressive and violent behavior on other occasions, and he
mentioned the importance of training dogs such as Bane and Hera
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not to fight.
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People v. Knoller, 41 Cal. 4th 139, 144-50 (2007).
III.
ANALYSIS
A.
Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose
v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the
basis of a claim that was reviewed on the merits in state court unless the state court's adjudication
of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Williams v.
Taylor, 529 U.S. 362, 412–13 (2000). Additionally, habeas relief is warranted only if the
constitutional error at issue had a “substantial and injurious effect or influence in determining the
jury's verdict.” Penry v. Johnson, 532 U.S. 782, 795 (2001) (internal citation omitted).
A state court decision is “contrary to” clearly established Supreme Court precedent if it
“applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or if it
“confronts a set of facts that are materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at
405–06. “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413.
“[A] federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.
Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court's
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jurisprudence. “[C]learly established Federal law, as determined by the Supreme Court of the
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United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions
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as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “A federal court
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may not overrule a state court for simply holding a view different from its own, when the
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precedent from [the Supreme Court] is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17
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(2003).
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Here, as noted, the California Supreme Court summarily denied petitioner’s petition for
review. The Court of Appeal, in its opinion on direct review, addressed the two claims petitioner
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raises in the present petition. The Court of Appeal thus was the highest court to have reviewed the
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claims in a reasoned decision, and it is the Court of Appeal’s decision that this Court reviews here.
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See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-
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92 (9th Cir. 2005).
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B.
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Petitioner asserts the following grounds for relief: (1) denial of her constitutional right to
Petitioner’s Claims
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counsel, (2) denial of her rights to confront witnesses and to a fair trial, and (3) that the cumulative
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effect of these errors was prejudicial. The California Court of Appeal rejected those claims in
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2005, in the appeal that ultimately culminated with the California Supreme Court’s 2007 decision
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in People v. Knoller. However, in that appeal the California Supreme Court reached only the
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question of the proper standard for “implied malice.” The Court of Appeal addressed the
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aforementioned claims again in the 2010 appeal, which the California Supreme Court summarily
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dismissed.
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1.
Right to Counsel
The following background facts from the trial court proceeding are taken from the 2010
Court of Appeal decision:
The prosecution and counsel for both defendant and codefendant
Noel presented their closing arguments to the jury without any
significant infringement on their arguments by the trial court.
However, after the prosecution had given a little more than one-third
of its rebuttal closing argument, Ruiz, defendant's attorney, objected
on the basis that the prosecutor had misstated the evidence. The
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court admonished counsel that this was closing argument and told
her that “[t]here will be no further interruptions or you will be out of
the courtroom.”
Subsequently, the prosecution argued: “The evidence, and it's
uncontradicted, is that time and time again they were warned wear a
muzzle, put a choke collar on and they said in Mr. Noel's words I
can do whatever I god damn please, I can go to any park I want with
the dog off-leash.” Counsel for defendant objected, stating “the dog
was on leash at all times.” At this point, the prosecution had made
more than three-quarters of its rebuttal closing argument.
The court reprimanded Ruiz and stated the following: “Counsel,
there will be no further objections. The jury will recall the evidence.
“Ladies and gentlemen, it is improper and counsel's conduct is
improper by standing up in closing argument and objecting to her
recollection of what the evidence was. The jury will recall what the
evidence is. Arguments of counsel are not evidence and it is
improper.
“And, Ms. Ruiz, please take your seat now and not get up again or
the next objection will be made from the holding cell behind you.
“Ladies and gentlemen, counsel are entitled to argue what they
believe the evidence is. If they are wrong, the jury will recall that.
What counsel say the evidence is, is not the evidence. And it is not a
proper objection to stand up in the middle of closing argument and
insert your own interpretation of what the evidence is.”
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People v. Knoller, A123272, 2010 WL 3280200, at *55 (Cal. Ct. App. Aug. 20, 2010).
After the trial court’s admonition, the prosecution continued its closing argument, quoting
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from a letter written by Defendant Noel regarding an earlier incident in which the dogs had
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become loose in the building’s hallway:
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Last thing I want you to think about, please, because this is a murder
case and you try to recreate Diane Whipple's time in that hallway,
what is it she saw before that first bite? ... Mr. Noel writes "before I
could get my body in the doorway to block them, they pushed
forward into the hall and took off side by side down the hall toward
the elevator in a celebratory stampede." Think of Diane. "240
pounds of Presa wall-to-wall bouncing off and heading for the wall
at the end of the hall." Exactly where Diane was standing before she
was bitten by these dogs. Think about the ten minutes that she was
ripped to death and her clothes ripped off her and then think about
this because this is how she died because of their recklessness.
Every time she tried to breathe, think of a breath in. Every time she
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tried to breathe, her throat closed in on itself, every time. And she
crawled, this young woman despite her to try to get home and she
tried to breathe again and her throat closed in again. She tried to
breathe again and she was alone, she was alone unable to even talk.
And the dog was still running loose with her and she tried to breathe
again, and her voice closing down with two holes in her larynx and
she crawled and she tried to push herself up and she crawled some
more to try to get home and no one was there, no one.
Id. at *63. As the Court of Appeal further described the trial court proceedings:
Neither Ruiz nor the attorney for Noel objected during the
remainder of the prosecution's closing rebuttal argument.
After the trial concluded, at the hearing on the motion for a new
trial, the court considered the issue that its order to Ruiz to refrain
from objecting any further supported a deprivation of counsel claim.
The court explained: “This is not on the record and I am putting it
on the record now for this reason. The way the courtroom in Los
Angeles is set up, it's a very big court, a large room, much wider
than this one. The jury box is over to my right, to your collective left
and the way the tables were set up, Ms. Ruiz and her client were
over to my left so that when you look at the jury box, you can't see
them. Your back is turned, you have to physically turn.
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“During the course of [the prosecutor's] rebuttal on March 19th,
where I was watching them, the court had caught-and this was
independently verified by security staff down in Los Angeles. I was
caught by a substantial amount of noise coming from the defense
table and I looked over and Ms. Knoller and Ms. Ruiz were engaged
in a very animated discussion with a lot of waving of hands which
included on the part of Ms. Knoller the ‘Get up, get up, get up,’ the
waving of arms going up like that (indicating) and suddenly in the
middle.... Ms. Ruiz for perhaps the second time in the trial did not
make a speaking objection. She simply stood up and said ‘Misstates
the evidence.’ It's the court's view that was an improper objection.
The evidence that she was talking about was virtually impossible to
identify and it was the court's view-and this was independently
corroborated by security staff, ... who was so concerned about the
amount of noise that he got up to stand over there because he was
afraid that something was going to happen. The waving of hands,
the ‘stand up,’ it appears to this court that this was an objection
inserted into the record for the purposes of interrupting the flow of
the prosecution's rebuttal argument and nothing more than that. [¶]
26
... [¶]
27
“This was a second objection which appeared to the court more to
be-more designed to interrupt the flow of the prosecution's rebuttal
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argument than anything else. And the court was quite stern with Ms.
Ruiz. The court indicated that there would be no further objections. I
wish I had inserted the word ‘improper’ in there, I didn't, but my
description to the jury afterwards of why it is not proper for counsel
to stand up in the middle of an argument and dispute a rather small
technical point of evidence, I certainly suggested that Ms. Ruiz
remain in court and was free anytime under the obligation to insert
whatever objections she deemed appropriate on behalf of her client.
She was never removed. And this should be considered a
compliment to Ms. Ruiz. I do not believe that she would be at all
cowered into silence by any of my comments made from the bench.”
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Id. at *56. Petitioner argues that, by ordering Ruiz not to object, the trial court prevented
Petitioner’s counsel from objecting to the concluding portion of the prosecution’s closing
argument. Therefore, Petitioner argues, she was deprived of the assistance of counsel during a
critical stage of the proceedings, a structural error that mandates automatic reversal of her murder
conviction.
12
In rejecting this claim, the Court of Appeal held that any deprivation of counsel did not
13
qualify as per se reversible error, and held that under harmless error analysis, “any alleged
14
prosecutorial or judicial misconduct was harmless beyond a reasonable doubt.” Id., at *63. The
15
court also stated in a footnote that it did not believe that the trial court’s oral order in fact
16
prevented Petitioner’s attorney from objecting, because “a reasonable attorney would have
17
interpreted the court’s order as indicating that Ruiz was not to make any further ‘improper’
18
objections,” and that Ruiz had demonstrated in the past that she would continue to make
19
objections despite court orders forbidding it. Id., at *87, n. 25.3
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21
The Court first addresses whether mandating counsel to remain silent during a portion of
closing argument is structural error.
22
a.
Sixth Amendment
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A three-judge panel of the Court of Appeal first heard Knoller’s appeal in 2005. People v. Noel,
128 Cal. App. 4th 1391, 28 Cal.Rptr.3d 369 (2005). In that appeal, Justice Haerle dissented with
respect to Knoller’s denial of counsel claim. See id., 28 Cal.Rptr.3d at 455. In his dissent, Justice
Haerle concluded that the trial court committed per se structural error when it prohibited Knoller’s
attorney from objecting during closing argument. Id. at 458-460. Additionally, the dissent also
disagreed that the error resulting from the order was harmless. Id. at 461. The same judges sat on
the panel who heard the 2010 appeal; this time Justice Haerle joined in the majority opinion, and
no judge dissented. 2010 WL 3280200.
12
The Sixth Amendment guarantees an accused the right to “assistance of counsel for his
1
2
defence.” U.S. Const. Amend. VI. It has long been understood that the Amendment secures more
3
than the right to the mere presence of counsel; it guarantees an accused the right to “effective
4
assistance of counsel.” U.S. v. Cronic, 466 U.S. 648, 654 (1984) (quoting McMann v.
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Richardson, 397 U.S. 759, 771 n. 14 (1970)). “If no actual ‘Assistance’ . . . is provided, then the
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constitutional guarantee has been violated.” Cronic, 466 U.S. at 654 (quoting U.S. Const. Amend.
7
VI).
8
9
A habeas petition based on a deprivation of counsel theory may proceed along two separate
paths. The first considers whether the state has committed a structural error, requiring a per se
finding of prejudice without further inquiry. See Cronic, 466 U.S. at 658. Structural error is
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confined to “a very limited class of cases” in which a defect affects “the framework within which
12
the trial proceeds, rather than simply an error in the trial process itself.” Neder v. U.S., 527 U.S.
13
1, 8-9 (1999) (citations omitted); see Washington v. Recuenco, 548 U.S. 212, 218-219 (2006)
14
(“We have repeatedly recognized that the commission of a constitutional error at trial alone does
15
not entitle a defendant to automatic reversal. Instead, most constitutional errors can be harmless.”)
16
In the context of deprivation of counsel, the Supreme Court has found structural error where
17
“counsel was either totally absent, or prevented from assisting the accused during a critical stage
18
of the proceeding.” Cronic, 466 U.S. at 660, n.25 (1984). Such error warrants “automatic
19
reversal.” Neder, 527 U.S. at 9.
20
The second path considers whether the state has committed error that, while not per se
21
prejudicial, nonetheless prejudiced the result of the proceeding under the particular facts before the
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court. This occurs when an error had a “substantial and injurious effect or influence in determining
23
the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619 (1993).
24
The Court first addresses Petitioner’s argument that the Court of Appeal unreasonably
25
applied clearly established Federal law in determining that the trial court’s error was not
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prejudicial per se.
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b.
Structural Error
Under AEDPA, this Court reviews the court of appeal’s conclusions to determine whether
13
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they were “contrary to, or involved an unreasonable application of, clearly established Federal
2
law.” 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412-13. The Supreme Court has narrowly
3
interpreted what constitutes a “clearly established” rule for the purpose of habeas review. See e.g.,
4
Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 786 (2011) (“[I]t is not unreasonable ‘for a state
5
court to decline to apply a specific legal rule that has not been squarely established by [the
6
Supreme] Court.’”); Premo v. Moore, __ U.S. __, 131 S. Ct. 733, 743 (2011) (“novelty alone--at
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least insofar as it renders the relevant rule less than ‘clearly established’--provides a reason to
8
reject . . . [the grant of habeas relief] under AEDPA”). The Supreme Court has also been hesitant
9
to expand the category of structural error requiring per se relief. Neder, 527 U.S. at 8 (“we have
found an error to be ‘structural,’ and thus subject to automatic reversal only in a ‘very limited class
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of cases.’”). Accordingly, this Court must first determine whether the Supreme Court has clearly
12
established a rule that preventing defense counsel from objecting during a portion of the
13
prosecution’s rebuttal argument is structural error warranting automatic reversal. See Lockyer v.
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Andrade, 538 U.S. 63, 71 (2003) (as a “threshold matter,” the habeas court must first determine
15
what constitutes the relevant “clearly established” Supreme Court law).
16
Petitioner argues that the Supreme Court established such a rule in Cronic. Petition, ECF
17
No. 1 at 35 (citing Cronic, 466 U.S. at 659, n. 25). She grounds this conclusion in what she terms
18
“the plain meaning of Cronic,” referring repeatedly to that case’s observation that structural error
19
occurs when counsel is “prevented from assisting the accused during a critical stage of the
20
proceeding.” Id. at 37-38 (quoting Cronic, 466 U.S. at 659, n. 25). Petitioner essentially contends
21
that this phrase establishes a rule requiring habeas relief whenever counsel is prevented from
22
assisting a defendant in any way during the course of a trial. Petition at 35, 38.
23
The Court of Appeal found this argument unavailing. After reviewing Supreme Court
24
cases in which a per se reversal rule was applied to deprivation of counsel claims, the Court of
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Appeal concluded that Petitioner’s proposed broad rule was unsupported by the relevant case law:
26
Even if we presume Ruiz did refrain from making any further
objections during the prosecutor's rebuttal closing argument as a
result of the court's oral order and threat to place her in the holding
cell, this did not deprive defendant of her Sixth Amendment right to
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the assistance of counsel requiring reversal per se. The Sixth
Amendment guarantees a criminal defendant the right to assistance
of counsel during critical stages of the proceedings. (Herring v. New
York (1975) 422 U.S. 853, 857 (Herring ) [trial judge's order
denying counsel opportunity to make summation at close of bench
trial denied defendant assistance of counsel].) Closing argument is a
critical stage of a criminal trial and the complete deprivation of the
right to counsel at the defendant's closing argument requires reversal
per se. (Ibid.) However, in the present case, defendant had counsel
for the prosecution's closing argument, for her closing argument, and
for most of the prosecution's rebuttal closing argument.
The Constitution “entitles a criminal defendant to a fair trial, not a
perfect one.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.)
“Not every restriction on counsel's time or opportunity to investigate
or to consult with his client or otherwise to prepare for trial violates
a defendant's Sixth Amendment right to counsel.” (Morris v. Slappy
(1983) 461 U.S. 1, 11.) It is well settled that “‘most constitutional
errors can be harmless.’[Citation.] ‘[I]f the defendant had counsel
and was tried by an impartial adjudicator, there is a strong
presumption that any other [constitutional] errors that may have
occurred are subject to harmless-error analysis.’ [Citation.] Indeed,
we have found an error to be ‘structural,’ and thus subject to
automatic reversal, only in a ‘very limited class of cases.’
[Citations.]” (Neder v.. United States (1999) 527 U.S. 1, 8, criticized
on other grounds in People v. McCall (2004) 32 Cal.4th 175, 187,
fn. 14.)
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Constitutional violations that defy harmless-error review contain “a
‘defect affecting the framework within which the trial proceeds,
rather than simply an error in the trial process itself.’[Citation .]
Such errors ‘infect the entire trial process,’ [citation], and
‘necessarily render a trial fundamentally unfair,’ [citation]. Put
another way, these errors deprive defendants of ‘basic protections'
without which ‘a criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence ... and no criminal
punishment may be regarded as fundamentally fair.’[Citation.]”
(Neder v. United States, supra, 527 U.S. at pp. 8-9.)
In our first opinion, we cited United States v. Cronic (1984) 466
U.S. 648 (Cronic), and concluded that the holding in Cronic required
us to apply the harmless error analysis to this record. The United
States Supreme Court stated in Cronic that the defendant is not
entitled to perfect assistance and is only deprived of his or her Sixth
Amendment right to effective assistance when the trial process
“loses its character as a confrontation between adversaries . . . .” (Id.
at pp. 656-657, fn. omitted.) The most obvious example is “the
complete denial of counsel” “at a critical stage.” (Id. at p. 659.) The
Cronic court did not state that a limitation on counsel “during” a
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critical stage constitutes structural error.
The holding in Cronic, supra, 466 U.S. at pages 658-662, has been
reiterated by the United States Supreme Court in Bell v. Cone
(2002) 535 U.S. 685, 696 (Bell ). The United States Supreme Court
in Bell explained that it “identified three situations implicating the
right to counsel [in Cronic ] that involved circumstances so likely to
prejudice the accused that the cost of litigating their effect in a
particular case is unjustified. [Citation.] [ ] First and [m]ost obvious
was the complete denial of counsel. [Citation.] A trial would be
presumptively unfair, we said, where the accused is denied the
presence of counsel at a critical stage, [citation], ... [fn. omitted.]
Second, we posited that a similar presumption was warranted if
counsel entirely fails to subject the prosecutions case to meaningful
adversarial testing. [Citation.] Finally, we said ... where counsel is
called upon to render assistance under circumstances where
competent counsel very likely could not, the defendant need not
show that the proceedings were affected.” (Bell, supra, 535 U.S. at
pp. 695-696.)
Under Cronic and Bell prejudice is presumed only under the most
egregious conditions. Prejudice is presumed when the state
interferes to the extent there is a complete deprivation of counsel
during a critical stage of the proceeding. In addition, error by
counsel may be presumed in the rare circumstances when counsel's
actions undermined the reliability of the finding of guilty, such as,
when counsel repeatedly slept through the guilt phase of the trial
(e.g., Burdine v. Johnson (5th Cir.2001) 262 F.3d 336, 345), counsel
was intoxicated during the entire trial (e.g., State v. Keller (1929) 57
N.D. 645 [223 N.W. 698] ), or counsel had an actual conflict of
interest affecting performance (Cuyler v. Sullivan (1980) 446 U.S.
335). In the present case, we are only concerned with the state's
interference causing the actual or constructive complete deprivation
of counsel.
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Defendant maintains that the standard set forth in Cronic and Bell
was modified in Gonzalez-Lopez, supra, 548 U.S. 140, which was
decided after we issued our first opinion in this matter. The court in
Gonzalez-Lopez announced the following rule: “Where the right to
be assisted by counsel of one's choice is wrongly denied ... it is
unnecessary to conduct an ineffectiveness or prejudice inquiry to
establish a Sixth Amendment violation.” (Id. at p. 148.)
Contrary to defendant's assertion, Gonzalez-Lopez did not refine or
change harmless-error analysis for ensuring a fair trial under the
Sixth Amendment. The court in Gonzalez-Lopez, supra, 548 U.S.
140, explained that the right to select counsel of one's choice has
never been derived from the Sixth Amendment's purpose of ensuring
a fair trial, but has “been regarded as the root meaning of the
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constitutional guarantee.” (Id. at pp. 147-148.) When a court
erroneously refuses to permit a defendant to select his or her
attorney for the entire trial, on appeal, prejudice need not be shown
because the “[d]eprivation of the right is ‘complete’ when the
defendant is erroneously prevented from being represented by the
lawyer he wants, regardless of the quality of the representation he
received.” (Id. at p. 148.)
Defendant contends that the court in Gonzalez-Lopez disapproved
of the fundamental test for structural error that we used in our prior
opinion. Defendant's contention is simply not correct. The court in
Gonzalez-Lopez explained that there were two different types of
errors: The first type of error occurs “‘during presentation of the
case to the jury’ “ and its effect “may ‘be quantitatively assessed in
the context of other evidence presented in order to determine
whether [the error was] harmless beyond a reasonable doubt.’ “
(Gonzalez-Lopez, supra, 548 U.S. at p. 148.) The second type of
constitutional error is structural defects and they defy harmless error
standard because they “‘affect [t]he framework within which the
trial proceeds,’ “ and are not ‘simply an error in the trial process
itself.’ “ (Ibid.) The court concluded that the “erroneous deprivation
of the right to counsel of choice, ‘with consequences that are
necessarily unquantifiable and indeterminate, unquestionably
qualifies as “structural error.”’” (Id. at p. 150.)
The Gonzalez-Lopez decision impacts those cases where the court at
the beginning of trial erroneously refused to permit the defendant to
have his or her counsel of choice and a different attorney provided
the defendant with representation throughout the trial. That is clearly
not the situation here and Gonzalez-Lopez is not applicable to
defendant's appeal. Indeed, the definition of structural error used in
Gonzalez-Lopez is precisely the one we applied in our prior opinion.
The situation before us does not approximate the situation in
Gonzalez-Lopez or any of the other cases where a court has held that
there is prejudice per se based on, actual or constructive, complete
deprivation of counsel. Courts have concluded that there is actual or
constructive complete deprivation of counsel as a result of the state's
actions in the following situations: counsel for defendant was
prevented from giving any closing argument (e.g., Herring, supra,
422 U.S. at p. 857); no counsel was appointed for an indigent
defendant in a robbery prosecution (Gideon v. Wainwright (1963)
372 U.S. 335); the defendant was prevented from consulting counsel
“about anything” during a 17-hour overnight recess (Geders v.
United States (1976) 425 U.S. 80); the state law required the
defendant to testify first or not at all, which deprived the defendant
of “the ‘guiding hand of counsel’ “ in the timing of this critical
element of the defense (Brooks v. Tennessee (1972) 406 U.S. 605);
the attorney was barred from conducting any direct examination of
the client (Ferguson v. Georgia (1961) 365 U.S. 570); the defendant
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was deprived of any counsel during the supplemental instruction to
the jury (French v. Jones (6th Cir.2003) 332 F.3d 430); counsel was
prevented from arguing an entire theory of the defense (e.g., Conde
v. Henry (9th Cir.1999) 198 F.3d 734, 739); counsel was stopped
from cross-examining a particular witness (e.g., Davis v. Alaska,
supra, 415 U.S. at pp. 317-318); the defendant had no counsel at his
arraignment in a capital case (Hamilton v. Alabama (1961) 368 U.S.
52, 55); the defendant had no counsel when he entered a guilty plea
at the preliminary hearing, and this initial plea was introduced into
evidence at the defendant's trial (White v. Maryland (1963) 373 U.S.
59, 60); and the defendant had requested counsel but did not receive
any at the time he was convicted and sentenced (Williams v. Kaiser
(1945) 323 U.S. 471).
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The cases cited in Cronic, supra, 466 U.S. at page 659,“involve
instances where something having to do with the truth-seeking
process was prevented by court ruling, or where the part to be
played in that process by defense counsel was wholly absent.”
(Green v. Arn (6th Cir.1987) 809 F.2d 1257, 1265, italics added.)
The case before us differs significantly from these rare cases that
have reversed for structural error as the truth-seeking or adversarial
process was not significantly frustrated. Ruiz was not precluded
from giving any part of her closing argument (e.g., Herring, supra,
422 U.S. at p. 857), from arguing an entire theory of the defense
(e.g., Conde v. Henry, supra, 198 F.3d at p. 739), from
communicating with her client (e.g., Geders v. United States, supra,
425 U.S. 80), or from cross-examining a particular witness (e.g.,
Davis v. Alaska, supra, 415 U.S. at pp. 317-318).
At best, the court limited Ruiz's ability to object during the last part
of the prosecution's closing rebuttal argument. The Herring court
clarified that the judge retains the power to control the courtroom,
including limiting or interfering with the attorney's argument: “This
is not to say that closing arguments in a criminal case must be
uncontrolled or even unrestrained. The presiding judge must be and
is given great latitude in controlling the duration and limiting the
scope of closing summations. He may limit counsel to a reasonable
time and may terminate argument when continuation would be
repetitive or redundant. He may ensure that argument does not stray
unduly from the mark, or otherwise impede the fair and orderly
conduct of the trial. In all these respects he must have broad
discretion.” (Herring, supra, 422 U.S. at p. 862.) Here, the judge did
not threaten Ruiz with being placed in the holding cell until after she
had completely flouted his prior orders, including his admonition
minutes earlier that if she continued to interrupt, she would be out of
the courtroom.
Indeed, the trial court has the authority to control the courtroom.
Here, it needed to control Ruiz who had defiantly ignored its
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warning that further interruptions would result in her being banished
from the courtroom and who had shown a complete disregard for
other court orders, even when such orders stated that a violation
would result in contempt.
Although not exactly the issue presented here, our Supreme Court
has made clear that a ruling that adversely affects the defense's
closing argument does not necessarily result in prejudice per se. Our
Supreme Court specified that to the extent that In re William F.
(1974) 11 Cal.3d 249,“a case in which no argument at all was
permitted[,] implies that error adversely affecting defense counsel's
closing argument necessarily infringes on the defendant's
constitutional right to the assistance of counsel [citation], it is
unsound and is hereby disapproved.” (People v. Bonin (1988) 46
Cal.3d 659, 695, fn. 4,overruled on other grounds in People v. Hill
(1998) 17 Cal.4th 800, 823, fn. 1.) Here, defense counsel's closing
argument was not affected. Only her ability to object to the last
fraction of the prosecutor's rebuttal closing argument was arguably
impacted.
Rather than point to any case that resulted in per se reversal under
conditions similar to the situation present here, defendant cites to
contempt cases. (See e.g., Cannon v. Commission on Judicial
Qualifications (1975) 14 Cal.3d 678, 695-697; Sacher v. United
States (1952) 343 U.S. 1, 9; Cooper v. Superior Court (1961) 55
Cal.2d 291, 298-302 [“‘When a defendant has been denied any
essential element of a fair trial or due process, even the broad saving
provisions of section 4 1/2 of article VI of our state Constitution
cannot remedy the vice and the judgment cannot stand’ “].) These
contempt decisions are concerned with courts' failures to follow
lawful contempt procedures.
Despite the limited applicability of these contempt cases, defendant
quotes the following from Sacher v. United States, supra, 343 U.S.
1: “Of course, it is the right of counsel for every litigant to press his
claim, even if it appears farfetched and untenable, to obtain the
court's considered ruling.” (Id. at p. 9.) Defendant, however, excises
the remainder of the court's statement, which explains: “Full
enjoyment of that right, with due allowance for the heat of
controversy, will be protected by appellate courts when infringed by
trial courts. But if the ruling is adverse, it is not counsel's right to
resist it or to insult the judge-his right is only respectfully to
preserve his point for appeal. During a trial, lawyers must speak,
each in his own time and within his allowed time, and with
relevance and moderation. These are such obvious matters that we
should not remind the bar of them were it not for the misconceptions
manifest in this case.” (Ibid.) The Sacher decision does not suggest
that any interference with the attorney's ability to press his or her
claim results in reversal. Rather, the court makes it clear that the
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attorney's obligation is to make a record sufficient for appeal and the
court retains the power to control the proceeding.
The other contempt cases cited by defendant are similarly
unavailing. The court in Cooper v. Superior Court, supra, 55 Cal.2d
291, acknowledges that an attorney has a duty to make objections on
his or her client's behalf, and a judge cannot absolutely foreclose
that. (Id. at p. 302.) The court in Cannon v. Commission on Judicial
Qualifications, supra, 14 Cal.3d 678, reviewed the decision to
remove a judge who had, as well as other actions, incarcerated
public defenders and effectively denied the defendants the effective
right to counsel because substituted counsel had insufficient time to
prepare. (Id. at pp. 696-697.) Neither decision suggests that any
threat of incarceration combined with a restriction on the ability to
object results in prejudice per se. Indeed, our Supreme Court has
clarified that the removal of counsel does not automatically result in
prejudice. (People v. Jones (2004) 33 Cal.4th 234, 243-244 [trial
court has authority to remove indigent defendant's appointed
attorney because of potential conflict of interest].) If removal does
not result in automatic prejudice, then the threat of removal
combined with the order not to make any more objections cannot
result in automatic prejudice.
In any event, these contempt cases are essentially irrelevant to the
issue before us. As already stressed, the complete deprivation of
counsel is structural error because “the entire conduct of the trial
from beginning to end is obviously affected by the absence of
counsel for a criminal defendant....” (Arizona v. Fulminante (1991)
499 U.S. 279, 307, 309-310, italics added.) A constitutional
deprivation is a structural defect “affecting the framework within
which the trial proceeds, rather than simply an error in the trial
process itself.” (Id. at p. 310, see also People v. Bonin, supra, 46
Cal.3d at p. 695.) We know of no case holding that limiting an
attorney's role or ability to object during a portion of the closing
argument results in prejudice per se. Ruiz does not argue that she
was foreclosed from raising a defense, from presenting an argument,
or from objecting throughout the entire critical stage of closing
argument. Rather, her sole complaint is that she suffered prejudice
because, subsequent to her being told to stop objecting, the
prosecutor improperly appealed to the jurors' passions and prejudice.
Such a complaint is an issue of prejudice easily addressed by a
harmless error analysis and does not approach the level of
establishing that her trial was so fundamentally unfair that the
court's actions undermined the reliability of the finding of her guilt.
(See, e.g., People v. Hill, supra, 17 Cal .4th at pp. 844-847.)
Defendant ignores the warning in Cronic that the defect “at the
critical stage” must undermine the entire adversary process (Cronic,
supra, 466 U.S. 657), and maintains that any limitation on counsel
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during a critical stage results in reversal per se. She quotes the
following footnote in Cronic: “The court has uniformly found
constitutional error without any showing of prejudice when counsel
was either totally absent, or prevented from assisting the accused
during a critical stage of the proceeding.” (Id. at p. 659, fn. 25.)
According to defendant, the court “prevented” Ruiz from assisting
her by ordering Ruiz not to object any further during the last portion
of the prosecution's rebuttal closing argument or she would be doing
it from the holding cell. In a footnote, the United States Supreme
Court in Bell v. Cone has explained the meaning of this footnote in
Cronic. (Bell, supra, 535 U.S. at p. 696, fn. 3.) The court clarified
that this footnote states that no prejudice needs to be shown when
the criminal defendant “had actually or constructively been denied
counsel [at a critical stage] by government action.” (Ibid.) As
discussed, ante, the court expressly stated that the holding in Cronic
is that the state's action must result in the actual or constructive
“‘complete denial of counsel.’” (Bell, supra, at p. 696, italics added.)
Here, harmless error applies in a situation where counsel objected all
through trial and throughout most of the closing argument. As
already highlighted, this is not a situation where Ruiz was barred
from making an objection during the entire closing argument, nor
was she in any way barred from making a motion or presenting
evidence regarding a defense. Rather, this is a situation where the
court instructed her not to interrupt any further or she would be
expelled and placed in the holding cell. Rather than structural error,
this situation is similar to when a reviewing court considers the
erroneous overruling of an objection during closing rebuttal
argument or considers prosecutorial or judicial misconduct when
objecting would be futile (see, e.g., People v. Hill, supra, 17 Cal.4th
at pp. 844-847). Under both of these circumstances, it is well settled
that the reviewing court applies a harmless error analysis.
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26
27
28
At best, defendant could argue that it was futile for her attorney to
object during the final moments of the closing rebuttal argument, but
automatically reversing the judgment on this basis contravenes our
Supreme Court's precedent. Our Supreme Court has applied the
harmless error analysis in a situation where the attorney did not
object to the alleged prosecutorial misconduct throughout the trial
because the judge had made it clear that such objections would be
denied and ridiculed. (People v. Hill, supra, 17 Cal.4th at pp. 821822, 844-847 [counsel could infer from trial court's prior rulings and
comments that it disfavored additional interruptions during the
questioning of witnesses or during closing argument and therefore
Supreme Court applied harmless error to alleged prosecutorial
misconduct].)
“[T]he harmless-error doctrine is essential to preserve the principle
that the central purpose of a criminal trial is to decide the factual
21
1
2
3
4
5
6
7
8
9
10
question of the defendants guilt or innocence, and promotes public
respect for the criminal process by focusing on the underlying
fairness of the trial rather than on the virtually inevitable presence of
immaterial error.'“ (Arizona v. Fulminante, supra, 499 U.S. at p.
308.) “Correctly applied, harmless error and structural error analyses
produce identical results: unfair convictions are reversed while fair
convictions are affirmed. Expanding the list of structural errors,
however, is not mere legal abstraction. It can also be a dangerous
endeavor. There is always the risk that a sometimes-harmless error
will be classified as structural, thus resulting in the reversal of
criminal convictions obtained pursuant to a fair trial. Given this risk,
judges should be wary of prescribing new errors requiring automatic
reversal. Indeed, before a court adds a new error to the list of
structural errors (and thereby requires the reversal of every criminal
conviction in which the error occurs), the court must be certain that
the errors presence would render every such trial unfair.” (Sherman
v. Smith (4th Cir.1996) 89 F.3d 1134, 1138.)
United States District Court
Northern District of California
11
Knoller, 2010 WL 3280200, at *57-63 (footnotes omitted). The State likewise contends that
12
Petitioner’s interpretation of Cronic is excessively broad. Answer, ECF No. 14 at 47-48.
13
Because most of Petitioner’s argument centers on footnote 25 in Cronic, it is appropriate to
14
undertake a close examination of the footnote’s text, and its place in the Supreme Court’s
15
deprivation of counsel jurisprudence. In Cronic, the Supreme Court was confronted with the
16
question of whether an attorney’s lack of preparation and experience had so prejudiced a criminal
17
defendant as to require an automatic reversal of conviction. 466 U.S. at 648. The Supreme Court
18
held that it had not. Id. at 666.
19
In reaching its conclusion, Cronic described the state of the Supreme Court’s jurisprudence
20
on Sixth Amendment deprivation of counsel claims. It observed that an accused has the right not
21
only to the presence of counsel, but “the right to effective assistance of counsel,” such that an
22
incompetent attorney will not suffice. Id. at 654 (quoting McMann v. Richardson, 397 U.S. 759,
23
771 n. 14 (1970)). Cronic went on to note that, in addition to this category, certain circumstances
24
are so likely to deny a defendant his right to effective counsel that the verdict must be reversed on
25
appeal without further consideration of the underlying merits, the “most obvious” example of
26
which “is the complete denial of counsel.” 466 U.S. at 658. In a footnote, Cronic observed that
27
“[t]he Court has uniformly found constitutional error without any showing of prejudice when
28
counsel was either totally absent, or prevented from assisting the accused during a critical stage of
22
1
the proceeding.” Id. at n. 25. Petitioner contends that the second clause of this footnote clearly
2
establishes the rule requiring per se reversal of her conviction.
3
As Petitioner notes, the Cronic footnote “founded this express statement of the rule on no
4
less than seven of its own prior decisions.” Petition at 35. Canvassing the cited decisions is
5
instructive. See Geders v. U.S., 425 U.S. 80, 91 (1976) (defendant prevented from consulting
6
counsel about anything during 17-hour overnight recess between his direct examination and cross-
7
examination); Herring v. New York, 422 U.S. 853, 863-64 (1975) (counsel prevented from giving
8
any closing argument); Brooks v. Tennessee, 406 U.S. 605, 612-613 (1972) (state law requiring
9
defendant to testify first or not at all deprived defendant of “the guiding hand of counsel” in
determining whether to testify after the close of the prosecution’s case); Hamilton v. Alabama, 368
11
United States District Court
Northern District of California
10
U.S. 52, 55 (1961) (petitioner denied counsel at arraignment in capital case); White v. Maryland,
12
373 U.S. 59, 60 (1963) (defendant had no counsel when he entered a guilty plea that was later put
13
into evidence at his trial); Ferguson v. Georgia, 365 U.S. 570 (1961) (attorney barred from
14
conducting direct examination of his client); Williams v. Kaiser, 323 U.S. 471, 475-476 (1945)
15
(defendant pled guilty to robbery after State of Missouri denied his petition for aid of counsel).
16
While Petitioner identifies the above-cited cases as the basis for the rule in Cronic, she
17
does not argue that the facts of her own case are analogous. Nor does she cite the facts of any
18
other Supreme Court case and argue that her situation falls within its holding. Instead, Petitioner
19
rests her case on the “plain meaning of Cronic,” asserting that the second clause of footnote 25
20
establishes a “bright line” rule susceptible of only one interpretation. Petition at 37.
21
But the meaning of the footnote is not self-explanatory. Nor is it an availing interpretive
22
exercise to read the footnote in isolation from the rest of Cronic. In other words, the stand-alone
23
phrase “prevented from assisting the accused” is not particularly illuminating. Petitioner’s reading
24
of Cronic is that, during trial, any wrongful interference with counsel’s assistance of a client,
25
however brief or slight, requires per se reversal, but that interpretation is not reflected in the
26
Supreme Court’s case law. If that were the rule, it would be a significantly impactful one
27
requiring per se reversal of many convictions. And at that point, the per se rule would no longer
28
be confined to a “very limited class of cases.” Neder, 527 U.S. at 8.
23
1
It is evident from the context of the footnote that Cronic does not purport to establish such
2
a “bright line” rule. The statement is dictum in an opinion holding that there had been no
3
structural error. And, in the footnote, the Cronic court was summing up a series of past decisions.
4
See 466 U.S. at 658, n. 25. The words the Cronic court used in a footnote to summarize these past
5
decisions is not the sort of “clearly established” law that can form the basis of a meritorious
6
habeas petition. Cf. Williams, 529 U.S. at 412 (“Clearly established Federal law, as determined
7
by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta, of [the
8
Supreme] Court’s decisions”). The Cronic court was not called upon to define precisely what
9
types of interferences suffice to “prevent [counsel] from assisting the accused” such that per se
reversal is warranted. Indeed, in a later footnote, Cronic noted that even when counsel’s
11
United States District Court
Northern District of California
10
effectiveness is affected by a “external constraint” imposed by the trial court judge, that “does not
12
make it any more or less likely that . . . [the defendant] received the type of trial envisioned by the
13
Sixth Amendment, nor does it justify reversal of his conviction absent an actual effect on the trial
14
process or the likelihood of such an effect.” 466 U.S. at 662, n. 31.
15
To be sure, a petitioner need not wait until the Supreme Court decides a case with precisely
16
the same facts before she or he can obtain habeas relief. The task under AEDPA is to ensure that
17
the state court has reasonably applied the “governing legal principle or principles set forth by the
18
Supreme Court at the time the state court renders its decision.” Lockyer, 538 U.S. at 71-72
19
(2003). But the facts of the Supreme Court’s cases, and in particular the decisions referred to in
20
the Cronic footnote, provide the content of the “governing legal principle” the court must apply
21
when determining whether counsel was so “prevented from assisting the accused” as to require per
22
se reversal.
23
There is a spectrum of cases finding per se prejudice from a court-imposed limitation on a
24
defendant’s access to legal assistance. At one end is Gideon v. Wainwright, 372 U.S. 335, 345
25
(1963), in which a defendant was completely denied counsel for the entirety of his trial. At the
26
other end are cases in which counsel was present but prevented by the judge from rendering a
27
particular type of assistance. See, e.g., Herring, 422 U.S. at 863-64 (counsel prevented from
28
giving any closing argument); see also Gomez v. U.S., 490 U.S. 858 (1989) (automatic reversal
24
1
where defense counsel was present for, but prohibited from conducting, voir dire).
Determining precisely where Petitioner’s case falls along the Supreme Court’s spectrum is
2
3
not a simple task. But on habeas review, that is not this Court’s assignment. Instead, the Court
4
asks whether the state court, in denying Petitioner’s claim, contravened a clearly established
5
Supreme Court rule or unreasonably applied clearly established Supreme Court precedent. 28
6
U.S.C. § 2254(d); Williams, 529 U.S. at 412–13. The Court of Appeal carefully reviewed the
7
Supreme Court’s cases and concluded that the type of interference to which Petitioner was
8
subjected is not the type that had been previously recognized as sufficient to trigger the rule of per
9
se reversal. Knoller, 2010 WL 3280200, at *55-59 (see also Noel, 28 Cal.Rptr.3d at 444-51 (2005
analysis of same claim)). The Court of Appeal correctly concluded that the interference here -
11
United States District Court
Northern District of California
10
denying counsel the ability to object during a portion of the prosecutor’s closing argument - falls
12
short of the kinds of interferences found by the Supreme Court to be within the “very limited class
13
of cases” requiring automatic reversal. Neder, 527 U.S. at 8.
The Court of Appeal noted that, in contrast to the cases cited in the Cronic footnote, here
14
15
counsel “was not precluded from giving any part of her closing argument…from arguing an entire
16
theory of the defense…from communicating with her client…or from cross-examining a particular
17
witness.” Knoller, 2010 WL 3280200, at *59. Because of the limited scope of Judge Warren’s
18
order--bearing only on counsel’s ability to object to a portion of rebuttal--the Court of Appeal
19
concluded that Knoller’s case presented a situation more like “when a reviewing court considers
20
the erroneous overruling of an objection during closing rebuttal argument or considers
21
prosecutorial or judicial misconduct when objecting would be futile.” Id. at *96. In both
22
circumstances, “it is well settled that the reviewing court applies a harmless error analysis.” Id.4
23
4
24
25
26
27
28
Also apparently guiding the Court of Appeal’s determination is a line of Supreme Court cases
defining the purpose of harmless error review, as contrasted with structural error review. See
Knoller, 2010 WL 3280200, at *90. In United States v. Gonzalez-Lopez, 548 U.S. 140, 148
(2006), the Supreme Court observed that trial error occurs “during the presentation of the case,
and [its] effects may be ‘quantitatively assessed in the context of other evidence presented in order
to determine whether [it was] harmless beyond a reasonable doubt. In contrast, structural defects
“‘defy analysis by harmless-error standards because they ‘affec[t] the framework within which the
trial proceeds.’” Id.; see also Brecht v. Abrahamson, 507 U.S. 619, 629-630 (1993); Puckett v.
United States, 556 U.S. 129, 141 (2009). Recognizing that these cases in no way supplant the
25
1
Petitioner has directed the Court’s attention to the Ninth Circuit’s recent en banc decision
2
in Frost v. Van Boening, __ F.3d __, No. 11-35114, 2014 WL 1677820, at *1 (9th Cir. Apr. 29,
3
2014), which the Court does find instructive.5 Under Herring, it is structural error to deny counsel
4
the opportunity to conduct closing argument. 422 U.S. at 863-64. In Frost, the trial court
5
permitted counsel to conduct a closing argument, but improperly limited him to arguing only one
6
of two potential defenses. 2014 WL 1677820, at *1-2. The Frost panel divided sharply on
7
whether Herring “clearly extended” to this situation, with a bare majority concluding that it did.
8
Compare Frost, 2014 WL 1677820, at *4-8 to id. at *9, 15 (Tallman, J., dissenting).
9
But the facts of the present case are nowhere near as comparable to any previously decided
Supreme Court decision as Frost’s facts are to Herring. In Frost, the majority concluded that the
11
United States District Court
Northern District of California
10
case before it not only fell within Herring’s general rule, but was in fact “far worse than what
12
occurred in Herring,” since in Herring neither side had made closing argument, while in Frost the
13
prosecution was allowed to present theories of the case that defense counsel was forbidden from
14
addressing. 2014 WL 1677820, at *5. Notably, none of the judges on the Frost panel endorsed
15
the rule urged by Petitioner: that it has been “clearly established” since Cronic that any
16
interference with counsel’s ability to assist his or her client at trial is inherently structural error. If
17
this were the rule, Frost would have been a much easier, and shorter, decision.
18
Measured against the high standard of review under AEDPA, the Court is not persuaded
19
that the Court of Appeal acted unreasonably in concluding that automatic reversal was not
20
required on these facts. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases
21
22
23
24
25
26
27
28
Supreme Court’s decisions determining what constitutes structural error, this Court notes that
because the ostensible error here is isolated to a single statement, it is possible to weigh its effect
against the rest of the evidence presented throughout the trial in the same way a reviewing court
ordinarily undertakes harmless error analysis. See Gonzalez-Lopez, 548 U.S. at 148. In other
words, the error is not one that “defies analysis by harmless error standards.”
5
A court of appeal decision “does not constitute clearly established Federal law, as determined by
the Supreme Court,” Renico v. Lett, ––– U.S. ––––, 130 S.Ct. 1855, 1866 (2010), but circuit law
“may be persuasive authority for purposes of determining whether a particular state court decision
is an ‘unreasonable application’ of Supreme Court law, and also may help [courts of appeals]
determine what law is ‘clearly established.’” Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.
2000).
26
1
give no clear answer to the question presented… ‘it cannot be said that the state court
2
unreasonabl[y] appli[ed] clearly established Federal law.’”) (quoting 28 U.S.C. § 2254(d)(1)).
3
The Court of Appeal’s conclusion that Judge Warren’s order did not rise to the level of structural
4
error is neither unreasonable nor contrary to settled Supreme Court precedent.
5
c.
Prejudicial Error
6
Petitioner contends that even if the Court does not find structural error, the deprivation of
7
counsel during part of prosecution’s rebuttal argument “exerted a substantial and injurious effect
8
on the verdict within the meaning of Brecht [v. Abrahamson, 507 U.S. 968 (1992)] thereby
9
warranting habeas relief” under harmless error analysis. ECF No. 1 at 48.
10
Petitioner advances two theories under which she contends the Court should find
United States District Court
Northern District of California
11
prejudicial error. First, she argues that the court of appeal’s order prejudiced the jury against
12
defense counsel by conveying that the court held a low opinion of her and that she “was not to be
13
trusted in her own summation of the evidence.” Id. Second, Petitioner contends that the court’s
14
order forbade her counsel from objecting to the prosecutor’s improper appeal to the jurors’
15
emotions in his closing argument, and that the emotional appeal had prejudicial effect on the
16
verdict. Id. Petitioner suggests that this emotional appeal was especially damaging in light of the
17
high bar that the prosecution faced in proving the elements of second degree murder given the
18
absence of evidence that Petitioner possessed any intent to kill. Id. at *49.
19
The court of appeal held that any prosecutorial or judicial misconduct was harmless
20
beyond a reasonable doubt, and that any error that occurred did not prejudice the verdict. Id. at
21
*63. In short, it concluded that in the context of the entire trial, the emotional appeal made in
22
rebuttal, though improper, was not substantial enough to prejudice the verdict, and that Judge
23
Warren’s demeanor toward counsel “fall[s] far short of establishing misconduct” under the
24
standard set by California law. Id. at *66.
25
26
27
28
The Court first addresses Petitioner’s prosecutorial misconduct claim, and then turns to her
claim of judicial misconduct.
1)
Prosecutorial Misconduct
Even where a constitutional error has occurred, unless the error is structural, a habeas court
27
1
should grant relief only if it concludes that the error had a “substantial and injurious effect or
2
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637-38. Under this standard,
3
“claimants are entitled to relief …only if they can establish that ‘actual prejudice’ resulted” from
4
the error. Id. at 621. In the context of prosecutorial misconduct, this means a showing that the
5
error “so infected the trial with unfairness as to make the resulting conviction a denial of due
6
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Darden is the “clearly established
7
Federal law” for assessing prosecutorial misconduct habeas claims. Parker v. Matthews, __ U.S.
8
__, 132 S. Ct. 2148, 2153 (2012).
9
Courts have identified six factors from Darden that guide harmless error analysis. Hein v.
Sullivan, 601 F. 3d 897, 914 (9th Cir. 2010). These assess “[1] the weight of the improper
11
United States District Court
Northern District of California
10
evidence, [2] the prominence of the comment in the context of the entire trial, [3] whether the
12
prosecution misstated the evidence, [4] whether the judge instructed the jury to disregard the
13
comment, [5] whether the comment was invited by the defense counsel in its summation, and [6]
14
whether defense counsel had an adequate opportunity to rebut the comment.” Id.
15
In Darden, the Supreme Court considered a litany of improper arguments made by the
16
prosecution in closing. Darden, 477 U.S. at 181. These included emotionally charged statements
17
such as “I wish [the victim] had had a shotgun in his hand when [the defendant] walked in the
18
back door and [had] blown [defendant’s] face off…I wish that I could see him sitting here with no
19
face, blown away by a shotgun…I wish someone had walked in the back door and blown his head
20
off,” and “[the defendant] shouldn't be out of his cell unless he has a leash on him and a prison
21
guard at the other end of that leash.” Id. at181, n. 12.
22
The Supreme Court held that despite the “objectionable content” of the prosecution’s
23
argument, under the relevant standard of review “these comments…did not deprive petitioner of a
24
fair trial.” Id. at 182. The Court reasoned that “much of the objectionable content was invited by
25
or was responsive to the opening summation of the defense” and “[t]he trial court instructed the
26
jurors several times that their decision was to be made on the basis of the evidence alone, and that
27
the arguments of counsel were not evidence.” Id. The Court further noted that the weight of
28
evidence against the petitioner was heavy” which “reduced the likelihood that the jury’s decision
28
1
was influenced by argument.” Id.
2
Here, the level of prosecutorial misconduct does not approach that of Darden, and
3
reviewed under the Darden factors, this Court cannot conclude that the prosecutorial misconduct
4
exerted a “substantial and injurious effect” on the verdict.
5
The Court of Appeal noted that the “few comments” that could be characterized as
6
improper “primarily focused on the evidence.” Knoller, 2010 WL 3280200, at *99.6 It held that
7
most of “the prosecutor’s argument…was proper rebuttal[,] . . . helped establish [Petitioner’s]
8
disregard for human life,” and that it was “particularly relevant to dispute defendant’s claim that
9
she attempted to protect [the victim].” Id. at *98.
As in Darden, the trial court instructed the jury that it was not to be “swayed by sympathy,
11
United States District Court
Northern District of California
10
passion or prejudice in reaching its verdict,” and in response to defense counsel’s objections twice
12
reminded the jury during the contested rebuttal argument that “arguments of counsel are not
13
evidence” and that “[t]he jury will recall what the evidence is.” Id. at *85. Before jury
14
deliberations the court again instructed the jury that they “must not be influenced by sentiment,
15
conjecture, sympathy, passion, prejudice, public opinion or public feeling.” As the State notes in
16
its brief, the Court “must presume that the jury followed these instructions.” ECF No. 14 at 64-65
17
(citing CSX Transp., Inc. v. Hensley, 556 U.S. 838, 841 (2009)) (“The jury system is premised on
18
the idea that rationality and careful regard for the court’s instructions will confine and exclude
19
jurors’ raw emotions…in all cases, juries are presumed to follow the court’s instructions.”).
Additionally, the court of appeal noted that “the evidence against defendant was strong
20
21
and there is not a reasonable possibility that the prosecutor’s comments affected the verdict.”
22
Knoller 2010 WL 3280200, at *65. Supporting the guilty verdict was voluminous testimony that
23
Knoller’s dogs had lunged at, attacked, and bitten other people and dogs in her presence,
24
sometimes causing serious injury, that Knoller had been warned that these dogs had no training
25
and had in the past killed sheep, that the dogs were, in the words of a veterinarian, a “liability,”
26
reminding him of a recent attack in which a boy had lost his arm and had his face disfigured, that
27
28
6
The Court, to be clear, undertakes its own prejudicial error review pursuant to Brecht.
29
1
Knoller could not, and often did not control the dogs, that Knoller was entirely unresponsive to
2
complaints about her dogs and acted in “disregard of the danger” they posed, and that after her
3
dogs mauled Ms. Whipple to death, Knoller failed to call 911 or otherwise seek help, and did not
4
inquire into Ms. Whipple’s condition despite returning to the scene of the killing to retrieve her
5
apartment keys. Id. at *41-43.
6
Petitioner disputes the strength of the evidence against her noting, among other things, that
7
Judge Warren “found the evidence insufficiently weighty to justify a murder as opposed to
8
manslaughter conviction.” But on appeal the California Supreme Court held that Judge Warren’s
9
conclusions were based upon his application of an incorrect legal standard. Id. at *29. Applying
the clarified legal standard on remand, the trial court determined that “[t]he jury properly
11
United States District Court
Northern District of California
10
examined and weighed the totality of the evidence in reaching…its verdict that defendant Knoller
12
was guilty of second degree murder.” Id. at *33. As the State points out in its brief, “although
13
Knoller again insists that it was ‘virtually impossible’ to demonstrate implied malice based on her
14
view of what the law required, Petition at 49, the jury, the trial court on remand, and the California
15
Court of Appeal found that there was ‘clear, substantial and credible’ evidence to support second
16
degree murder.” ECF No. 14 at 65 (quoting Knoller, 2010 WL 3280200, at *49).
17
Finally, as the State points out, in the two California cases cited by Petitioner for her
18
proposition that it is improper for a prosecutor to appeal to the jury’s emotions, the courts found
19
that no prejudice resulted from those emotional appeals. People v. Stansbury, 4 Cal. 4th 1017,
20
1057 (1993) (no prejudice found where prosecutor argued, “[t]hink what she must have been
21
thinking in her last moments of consciousness during the assault. Think of how she might have
22
begged or pleaded or cried,” because “this was but a single reference in a long, complex and
23
otherwise scrupulous argument about the facts of the case”); People v. Fields, 35 Cal. 3d 329, 362
24
(1983) (no prejudice resulted from prosecution’s plea to “think of yourself as [the victim]”
25
because the evidence of guilt was overwhelming).
26
In her Traverse, the Petitioner argues that her case is similar to People v. Vance, 188 Cal.
27
App. 4th 1183 (2010), in which the court of appeal granted a new trial because of prosecutorial
28
misconduct. ECF No. 22 at 22-24. However, the facts of that case too are distinguishable, not
30
only because it was reversed on the more forgiving Chapman standard used on direct review, but
2
also because the prosecution’s improper arguments were both more sustained and more egregious
3
than in the present case. In Vance, the prosecutor made an emotional appeal, which began with
4
her urging the jury to “walk in [the victim’s] shoes,” continued by asking the jurors to “literally
5
relive in [their] mind’s eye and in [their] feelings what [the victim] experienced,” and then
6
continued further in this vein throughout closing argument. Id. at 1199.7 Unlike the present case,
7
the Vance court noted that the emotional appeal cannot be “dismissed as isolated” because it
8
pervaded closing arguments. Id. at 1200-1201 (holding that “[t]he sheer number of instances of
9
prosecutorial misconduct…is profoundly troubling. Considered together [the court] conclude[s]
10
they created a negative synergistic effect, rendering the degree of overall unfairness to defendant
11
United States District Court
Northern District of California
1
more than that flowing from the sum of the individual errors”).
12
Moreover, in Vance there was a paucity of evidence in that case to support the charge of
13
first degree murder. Id. at 1204-1206. As noted above, here, the prosecution put on voluminous
14
evidence going to Petitioner’s state of mind. Additionally, in Vance the court noted that the
15
prosecutor “asked the jury to go beyond the evidence,” id. at 1206, which stands in contrast to this
16
case in which the “few comments” that could be characterized as improper “primarily focused on
17
the evidence.” Knoller 2010 WL 3280200, at *64.
18
Ultimately, the invitation for jurors to “think” of the victim does not approach the
19
magnitude of the egregious appeal to emotion in Vance, or even the conduct in Darden that fell
20
short of the standard permitting habeas relief. This Court is persuaded that the error did not have a
21
“substantial and injurious effect on the verdict.”
2)
22
Petitioner further contends that Judge Warren’s order, which “declared Ms. Knoller’s
23
24
Judicial Misconduct
counsel both guilty of misconduct and deserving of expulsion from the courtroom,” was
25
26
27
28
7
After her initial remarks, the prosecutor improperly urged the jury to consider the victim’s “pain
and suffering,” to imagine what the victim was thinking in his last moments, and to imagine what
it would feel like to suffocate. Id. at 1194. She then continued by improperly asking jurors to
consider the victim’s family’s suffering, casting aspersions on the defense attorney, and describing
the defendant’s appearance in court as “extremely deceptive” and “pitiful.” Id. at 1195-1196.
31
1
“unwarranted and unfair” and prejudiced the jury’s verdict. ECF No. 1 at 48. As the Court of
2
Appeal described California’s law regarding judicial misconduct:
3
4
5
6
7
8
9
10
A trial court commits misconduct if it persistently makes
discourteous and disparaging remarks so as to discredit the defense
or create the impression it sides with the prosecution. (People v..
Fudge, supra, 7 Cal.4th at p. 1107.) A judge's comments are
evaluated “‘on a case-by-case basis, noting whether the peculiar
content and circumstances of the court's remarks deprived the
accused of his right to trial by jury.’ [Citation.] ‘The propriety and
prejudicial effect of a particular comment are judged both by its
content and by the circumstances in which it was made.’ “ (People
v. Sanders (1995) 11 Cal.4th 475, 531-532.)
Knoller, 2010 WL 3280200, at *65.
Here, Petitioner challenges two of the court’s remarks both made during prosecution’s
United States District Court
Northern District of California
11
rebuttal argument in response to defense counsel’s objection. In response to the first objection the
12
court admonished counsel that “[t]here will be no further interruptions or you will be out of the
13
courtroom.” Knoller 2010 WL 3280200, at *55. When defense counsel objected to another
14
statement shortly thereafter the court gave the following order:
15
16
17
18
19
“Counsel, there will be no further objections. The jury will recall the
evidence.
“Ladies and gentleman, it is improper and counsel’s conduct is
improper by standing up in closing argument and objecting to her
recollection of what the evidence was. The jury will recall what the
evidence is. Arguments of counsel are not evidence and it is
improper.
20
21
“And Ms. Ruiz, please take your seat now and not get up again or
the next objection will be made from the holding cell behind you.”
22
Id. As the Court of Appeal noted, “[t]he facts and decisions cited by defendant are very different
23
from the misconduct alleged here.” Id. at *66. The court did not display “persistent antagonism
24
toward defense counsel,” and instead, “was rather tolerant of [her] speaking objections and
25
constant attempts to insert her own interpretations of the evidence.” Id. The court of appeal also
26
noted that counsel was “extremely disruptive…throughout the trial” and committed misconduct
27
including “purposefully disobeying a prior gag order, improperly telling the jury that the victim
28
was a lesbian” and that “charges were only brought against her client ‘to curry favor with the
32
1
homosexual community,’ and disregarding the court’s prior admonitions not to interrupt.” Id. at
2
*60 n. 27.
3
The Court of Appeal concluded that though the court was excessive in its final
4
admonitions to counsel, the court “did not speak derisively about [counsel] or the defenses
5
presented.” Id. at *66. “[T]he entire transcript does not demonstrate unfairness or undue criticism”
6
so much as “a desire to control the proceedings.” Id. The court of appeal concluded that Judge
7
Warren’s demeanor toward counsel “falls far short of establishing misconduct,” and that that, at
8
the worst, the transcript reveals Judge Warren’s “irritation with counsel” in front of the jury,
9
which does not rise to the level of misconduct. Id., at *66.
10
The Court of Appeal’s findings are sound. While evincing his irritation with counsel,
United States District Court
Northern District of California
11
Judge Warren’s remarks do not rise to the level of the persistent and discourteous behavior
12
required for a finding of judicial misconduct, and this Court does not conclude that they had a
13
“substantial and injurious effect on the verdict,” as required for a finding of prejudicial error.
14
Accordingly, no habeas relief can be granted on this theory.
15
16
d.
The Effect of Judge Warren’s Order
The Court of Appeal’s conclusion that Judge Warren’s order did not have the actual effect
17
of silencing Petitioner’s counsel was unreasonable, because there was no factual basis for it.
18
Judge Warren’s direction to Ruiz was clear: “Ms. Ruiz, please take your seat now and not get up
19
again or the next objection will be made from the holding cell behind you.” Any reasonable
20
lawyer in Ruiz’s position could only have concluded that to object further ‒ whether the objection
21
was “improper” or not ‒ was to risk being escorted from the courtroom and into a holding cell.
22
The Court of Appeal points to nothing in the record showing that Ruiz was prepared to take that
23
risk, and it is implausible that any lawyer would have.
24
Nonetheless, Judge Warren’s order still does not provide a basis for habeas relief, because
25
the Court of Appeal was not unreasonable in concluding that, even if the order had the effect of
26
chilling Ruiz’s ability to object, it did not amount to structural error, and such error was also not
27
28
33
1
prejudicial under Brecht.8
2.
2
The Court adopts the following facts from the Court of Appeal decision:
3
4
Two of the letters written by Noel were admitted into evidence
during [Corrections Department Special Agent] Hawkes's testimony
that connected defendant to the Aryan Brotherhood. Hawkes
testified about a letter written by Noel to Schneider on December
27, 2000. The letter was on the joint legal letterhead of Noel and
defendant and marked “Confidential Legal Mail.” Before the
prosecution read the letter into evidence, counsel for defendant
objected, arguing the jury should be instructed that the letter should
be considered only against Noel. The court overruled the objection.
Subsequently, it noted that counsel for defendant had brought this
issue up in her opening statement. Hawkes testified that Schneider
had stabbed a lawyer in court and the knife used had an Aryan
Brotherhood symbol on it. One portion of the letter read to the jury
stated: “I don't think Marjorie's ever told you what my response,
with which she agreed immediately, was upon hearing that, every
time we were told that [Schneider had stabbed his attorney], ‘If he
did, he must have had a damned good reason and the smuck [sic ]
probably deserved it.’ “
5
6
7
8
9
10
11
United States District Court
Northern District of California
Confrontation Clause and Right to a Fair Trial
12
13
14
The prosecution read further from the letter regarding the Boyd case.
Boyd was an inmate who was killed at Pelican Bay and who was a
witness in another case. The letter from Noel stated: “When
someone early on in the Boyd case from the defense side made
mention of possibly wanting to depose you, Marjorie and I both
agreed that we would have no problem being in such a setting with
you but that I would just want to make it clear that I was not sitting
between you and the door and if you went for the door, all she or I
would do was to wave good-bye and wish you good luck and God's
speed.”
15
16
17
18
19
20
21
22
8
23
24
25
26
27
28
More broadly, the Court’s order today should not be read as an endorsement of any aspect of
Judge Warren’s order to Ms. Ruiz. The order was erroneous, and inappropriate. But the question
here is not whether this Court believes the state trial court erred such that the Court of Appeal
should have reversed Petitioner’s conviction ‒ or, to put it another way, whether this Court
believes that Justice Haerle’s 2005 dissent was correct, and the majority’s opinion was not ‒ but
the “markedly different” question of whether Petitioner is entitled to habeas relief. Nazarian v.
Uribe, CV 10-6466-JFW JPR, 2012 WL 4739909, at *1 (C.D. Cal. Oct. 4, 2012); see also
Harrington v. Richter, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011) (“[a] state court’s
determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court's decision” (quotation omitted)).
34
1
2
3
4
5
6
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
18
19
20
21
22
23
24
In this letter, Noel indicated no surprise that Schneider had been
carrying a weapon when he testified at the trial of a former Pelican
Bay prison guard. The prosecution read: “I had no doubt that you
were carrying. Neither I nor Marjorie had any fear of you for a
couple of reasons. If you went for the door and your route of travel
was through the spot where I was standing, I would get my ass out
of the way so you had a clear shot at the door, window, et cetera.”
Hawkes testified regarding a second letter written by Noel to
Bretches on January 12, 2001. Again defendant's joint legal
letterhead was used and was marked “Confidential Legal Mail.” The
letter was “[r]egarding mutts and other matters.” The letter
concerned two inmates who were enemies of the Aryan Brotherhood
and were prosecution witnesses in a federal case against the Aryan
Brotherhood. One had dropped out of the Aryan Brotherhood, and
Hawkes testified that the consequence of dropping out was death. In
the letter, Noel identified the location of a protected witness, which,
in Hawkes's opinion, could result in great bodily harm to that
witness. Noel's letter did not reference defendant, except to say:
“Hope tomorrow is a good mail day. It always is if we hear from
either you or Paul and a really great day if we hear from you both.”
Defendant also objects to the admission of four letters that Noel
wrote to the inmates regarding the Presas. At the close of the
prosecution's case, the prosecutor read into the record a redacted
letter from Noel to inmate Bretches, with the salutation, “Dear Dale
and Paul,” dated October 3, 2000, and marked “Confidential Legal
Mail.” This letter expressed delight at the Presas meeting him at the
door and their escape into the hallway after defendant was forced to
let go of their leashes. Trial counsel for defendant stated on the
record that she had no objection to the admission of this letter.
Noel wrote a similar letter sent October 10, 2000, to Bretches with
the salutation, “Dear Dale and Paul,” on joint legal letterhead and
marked “Confidential Legal Mail.” In this letter he again describes
an incident where the Presas escaped into the hallway when he
entered the apartment. Defendant's trial attorney again stated on the
record that she had no objection to the admission of this letter.
On October 17, 2000, Noel wrote to Bretches about his reading
Manstopper and his laughing when he read the part about his losing
a finger. Finally, in a letter written by Noel to Schneider on January
11, 2001, on joint legal letterhead and marked, “Confidential Legal
Mail,” Noel recounted his becoming used to the “jail break”
approach the Presas had and the Presas' confrontation with two other
dogs. He also reported an incident involving the Presas' exiting the
elevator door and meeting Whipple, “a timorous little mousy
blond[e], who weighs less than Hera[.]” He remarked that Whipple
almost “ha[d] a coronary[.]”
Knoller, 2010 WL 3280200, at *50-52.
25
Petitioner argues that the admission of Noel’s letters violated her Sixth Amendment right
26
to confront witnesses, asserting that facially incriminating statements made by nontestifying
27
codefendants are inadmissible under Bruton v. United States, 391 U.S. 123 (1968).
28
35
1
“Confrontation Clause violations are subject to harmless error analysis.” United States v.
2
Nielsen, 371 F.3d 574, 581 (9th Cir.2004); see also United States v. Allen, 425 F.3d 1231, 1235
3
(9th Cir.2005). For purposes of federal habeas corpus review, the standard is whether the
4
allegedly inadmissible evidence “‘had substantial and injurious effect or influence in determining
5
the jury's verdict.’” Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir.2002) (quoting Brecht v.
6
Abrahamson, 507 U.S. 619, 637 (1993)).
7
Petitioner argues that the trial court’s admission of letters written by nontestifying
8
codefendant Robert Noel violated Petitioner’s Sixth Amendment right to confront witnesses. ECF
9
No. 1 at 52.
10
The Court of Appeal held that even if the trial court erred in admitting the letters, the error
United States District Court
Northern District of California
11
was harmless beyond a reasonable doubt, citing Chapman v. California, 386 U.S. 18 (1967).
12
Knoller, 2010 WL 3280200, at *52. The Court of Appeal reasoned that the evidence establishing
13
second degree murder against Petitioner was sufficient to support the convictions even without the
14
letters. Id. at *53.
15
16
a.
The Confrontation Clause
The Confrontation Clause of the Sixth Amendment provides that, in criminal cases, the
17
accused has the right to “be confronted with the witnesses against him.” U.S. Const. Amend. VI.
18
The ultimate goal of the Confrontation Clause is to ensure reliability of evidence, but it is a
19
procedural rather than a substantive guarantee. Crawford v. Washington, 541 U.S. 36, 61 (2004).
20
It commands not that evidence be reliable, but that reliability be assessed in a particular manner:
21
by testing in the crucible of cross-examination. See id.; see also Davis v. Alaska, 415 U.S. 308,
22
315–16 (1974) (noting “a primary interest” secured by the Confrontation Clause “is the right of
23
cross-examination”). The right to cross-examine under the Confrontation Clause provides the
24
opportunity to “expose to the jury the facts from which jurors ... could appropriately draw
25
inferences relating to the reliability of the witness.” Davis, 415 U.S. at 318.
26
The Confrontation Clause applies to all “testimonial” statements. Crawford, 541 U.S. at
27
50–51. “Testimony ... is typically a solemn declaration or affirmation made for the purpose of
28
establishing or proving some fact.” Id. at 51 (internal quotation and citation omitted). “An accuser
36
1
who makes a formal statement to government officers bears testimony in a sense that a person who
2
makes a casual remark to an acquaintance does not.” Id. The Supreme Court has further refined
3
this test, holding that a statement is “testimonial when…the primary purpose…is to prove past
4
events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813,
5
821-822 (2006)
“Only statements of this sort cause the declarant to be a ‘witness’ within the meaning of
6
7
the Confrontation Clause.” Davis, 547 U.S. at 821-822. “It is the testimonial character of the
8
statement that separates it from other hearsay that . . . is not subject to the Confrontation Clause.”
9
Id.
Crawford and Davis are “clearly established Federal law” for the purposes of this action
11
United States District Court
Northern District of California
10
because Crawford was decided in 2004 while Knoller’s case was still on direct review. For the
12
purposes of AEDPA, the source of clearly established Federal law refers to “Supreme Court
13
holdings at the time of the state court’s last reasoned decision.” Barker v. Fleming, 423 F.3d
14
1085, 1093 (9th Cir. 2005) (citing Williams, 529 U.S. at 412).9
15
1)
The Letters Are Not Testimonial Statements
16
A full analysis of this issue requires the Court to reach an issue not addressed by the Court
17
of Appeal, but raised by the State in response this petition: whether the Confrontation Clause even
18
applies to these letters.
Under the circumstances of this case, the Confrontation Clause does not apply. Noel’s
19
20
letters were sent to prison inmates, and were not made during an investigation or as a substitute for
21
trial testimony. Petitioner does not, nor can she, make a cogent argument that Noel’s letters were
22
testimonial.
Rather than arguing that the statements were testimonial, Petitioner argues that Crawford is
23
24
not applicable because the case involved the admission of an out-of-court statement of the alleged
25
26
27
28
9
Although Noel’s letters were admitted by the trial court prior to Crawford being decided, the rule
against the admission of testimonial statements is still applicable because the Court of Appeal
affirmed Petitioner’s conviction after Crawford was decided. See Meras v. Sisto, 676 F.3d 1184
(9th Cir. 2012) (finding that Crawford was clearly established Federal law in a habeas action
where a state court of appeal, in 2005, affirmed the petitioner’s conviction by jury trial in 2003).
37
1
victim, whereas Bruton applies to statements made by a nontestifying codefendant.
Petitioner’s argument fails because Crawford and its progeny make it clear that the
2
3
Confrontation Clause only restricts the admissibility of testimonial evidence. See Whorton, 549
4
U.S. at 420 (“the Confrontation Clause has no application to [nontestimonial] statements and
5
therefore permits their admission even if they lack indicia of reliability”); Davis, 547 U.S. 813,
6
821 (2006) (nontestimonial statements, “while subject to traditional limitations upon hearsay
7
evidence, [are] not subject to the Confrontation Clause”); see also Michigan v. Bryant, 131 S. Ct.
8
1143, 1153 (2011) (“We therefore [in Crawford] limited the Confrontation Clause’s reach to
9
testimonial statements . . ..”).
Despite the Supreme Court’s limitation of Confrontation Clause violations to testimonial
10
United States District Court
Northern District of California
11
statements, Petitioner argues that Bruton is still the relevant law here because it was not expressly
12
overruled by Crawford. In support of its proposition Petitioner quotes Agostini v. Felton, which
13
states that “[i]f a precedent of [the Supreme] Court has direct application in a case, yet appears to
14
rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the
15
case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”
16
521 U.S. 203, 237-38(1997) (citation omitted).10
It is true that Bruton has not been expressly overruled by Crawford or any other Supreme
17
18
Court cases. But as previously stated, the Supreme Court has made it abundantly clear that the
19
Confrontation Clause, since Crawford, bars only testimonial evidence. Rather than overruling
20
Bruton, Crawford places a limitation on its applicability. After Crawford, a court must address the
21
question of whether a statement is testimonial as a threshold matter before it can proceed with a
22
Bruton analysis. Just as in Richardson v. Marsh, 481 U.S. 200, 211 (1987), in which the Supreme
23
24
25
26
27
28
10
Petitioner also notes that “Bruton is cited favorably in Crawford,” in support of her theory that
Bruton’s holding has not been overruled and should apply to this case. ECF No. 1 at 52.
However, in the citation that Petitioner points to, the Crawford court offers Bruton as an example
of one of its past decisions that is consistent with the rule limiting Confrontation Clause violations
to testimonial statements that have not been tested by cross examination. Crawford, 541 U.S. at
56. This is because the statement at issue in Bruton was testimonial as the term is defined in
Crawford. Id. The Supreme Court’s mention of Bruton in Crawford cannot reasonably be read to
endorse applying Bruton’s rule to nontestimonial statements.
38
Court limited the application of Bruton to statements that are facially incriminating, Crawford
2
limits Bruton’s applicability to statements that are testimonial, as many circuit courts have now
3
recognized. See e.g. U.S. v. Berrios, 676 F. 3d 118, 128 (3d Cir. 2012) (“[B]ecause Bruton is no
4
more than a by-product of the Confrontation Clause, the Court’s holding in Davis and Crawford
5
likewise limit Bruton to testimonial statements”); United States v. Figueroa-Cartagena, 612 F.3d
6
69, 85 (1st Cir. 2010) (“It is necessary to view Bruton through the lens of Crawford and Davis.
7
The threshold question . . . is whether the challenged statement is testimonial.”); United States v.
8
Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (“the Bruton rule, like the Confrontation Clause
9
upon which it is premised, does not apply to nontestimonial hearsay statements”); United States v.
10
Johnson, 581 F.3d 320, 326 (6th Cir. 2009) (“Because it is premised on the Confrontation Clause,
11
United States District Court
Northern District of California
1
the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial
12
statements.”); United States v. Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009) (Bruton does not
13
apply to nontestimonial codefendant statements). As Petitioner does not even attempt to argue
14
that Noel’s letters can be classified as testimonial statements, Petitioner’s arguments fail.
15
16
17
18
19
20
The admission of the letters cannot have violated Petitioner’s Sixth Amendment rights
since they are not testimonial statements to which the Confrontation Clause applies.
2)
The Letters Are Not “Facially Incriminating”
Even assuming arguendo that, after Crawford, Bruton’s rule still applies to the admission
of nontestimonial evidence, Petitioner’s claim still fails.
The Bruton rule applies only where the statement in question is facially incriminating.
21
Richardson v. Marsh, 481 U.S. 200, 211 (1987). A “facially incriminating” statement is defined in
22
contrast to statements that implicate the defendant only in connection to other admitted evidence.
23
Id. After Marsh, statements that are not “facially incriminating” are not subject to Bruton. Id.
24
A codefendant’s statement is facially incriminating if it is “sufficiently devastating” or
25
“powerfully inculpatory.” United States v. Angwin, 271 F.3d 786, 796 (9th Cir. 2001), overruled
26
on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (citations omitted).
27
As the Court concludes in its Brecht analysis, infra at III-B-2-b, Noel’s letters did not have
28
a substantial and injurious effect or influence in determining the jury’s verdict. Therefore, Noel’s
39
1
letters were also not “sufficiently devastating” or “powerfully inculpatory.” For this additional
2
reason, the statements do not fall within the rule of Bruton.
3)
3
4
Conclusion
For the foregoing reasons, the Court concludes that the Court of Appeal’s decision was not
5
in violation of Petitioner’s clearly established constitutional rights. To the contrary, it is clearly
6
established that the Confrontation Clause does not bar this nontestimonial evidence and that the
7
statements were not “facially incriminating.” While this conclusion disposes of Petitioner’s Sixth
8
Amendment claims, the Court proceeds to address Petitioner’s arguments assuming arguendo that
9
the admission of the letters did violate Petitioner’s constitutional rights.
10
United States District Court
Northern District of California
11
b.
Prejudicial Error
Petitioner argues that the Court of Appeal unreasonably applied Chapman in holding that
12
any error was harmless. Petitioner asserts that because that court stated that the evidence “was
13
sufficient without the letters,” the court was not applying the legal standard set forth in Chapman,
14
but rather, the standard established by Jackson v. Virginia, 443 U.S. 307 (1979). Jackson sets
15
forth the standard for determining whether evidence is sufficient to support a conviction, and asks
16
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational
17
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443
18
U.S. at 319 (emphasis in original). Petitioner asserts that the Jackson standard is “a highly
19
forgiving standard” compared to the standard set forth in Chapman.
20
Petitioner argues that the Court of Appeal should have applied a different standard used by
21
California courts, which Petitioner argues is derived from Chapman: “whether the properly
22
admitted evidence is so overwhelming as to the guilt of the nondeclarant that a reviewing court
23
can say the constitutional error is harmless beyond a reasonable doubt.” People v. Archer, 82 Cal.
24
App. 4th 1380, 1390 (Cal. Ct. App. 2000) (citing People v. Anderson, 43 Cal. 3d 1104, 1129 (Cal.
25
1987)). The Court of Appeal in this case did use the term “sufficient” to describe the evidence
26
establishing Petitioner’s implied malice for second degree murder. Knoller, 2010 WL 3280200, at
27
*53. However, the Court of Appeal used the term “overwhelming” with regard to the evidence
28
establishing that Petitioner had trouble controlling the Presas and the evidence establishing that
40
1
2
Petitioner had disregard for the public safety. Id. at *52-53.
This court acknowledges the distinction between the terms “sufficient” and
3
“overwhelming.” However, while the standard used by California courts in Archer and Anderson
4
may be derived from Chapman, it is not precisely the same as the Chapman standard. Under
5
Chapman, a federal constitutional error is deemed harmless if a court is “able to declare a belief
6
that it was harmless beyond a reasonable doubt.” 386 U.S. at 24. In fashioning a new rule for
7
harmless error, the Chapman court considered the rule utilized by the California Supreme Court in
8
People v. Teale, 63 Cal. 2d 178, 197 (1965). In Teale, the California Supreme Court held that an
9
improper jury instruction did not result in a miscarriage of justice against the defendant, since the
Supreme Court deemed the evidence against him overwhelming. Id. The U.S. Supreme Court
11
United States District Court
Northern District of California
10
stated that the California standard “emphasizes ‘a miscarriage of justice,’ but the California courts
12
have neutralized this to some extent by emphasis, and perhaps overemphasis, upon the court’s
13
view of ‘overwhelming evidence.’” Chapman, 386 U.S. at 23 (emphasis added). The Supreme
14
Court instead preferred its previous approach in Fahy v. State of Connecticut, 375 U.S. 85, 86-87
15
(1963), in which “[t]he question is whether there is a reasonable possibility that the evidence
16
complained of might have contributed to the conviction.” Chapman, 386 U.S. at 24. The Supreme
17
Court stated:
18
19
20
21
22
There is little, if any, difference between our statement in Fahy . . .
and requiring the beneficiary of a constitutional error to prove
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained. We, therefore, do no more than
adhere to the meaning of our Fahy case when we hold, as we now
do, that before a federal constitutional error can be held harmless,
the court must be able to declare a belief that it was harmless beyond
a reasonable doubt.
Id. at 24. Accordingly, the Chapman standard does not encompass the idea, set forth by Teale and
23
later in Archer and Anderson, that evidence against a petitioner must be overwhelming before a
24
constitutional error can be deemed harmless.
25
But regardless of whether the Court of Appeal applied Chapman reasonably, this Court is
26
27
not governed by a state court’s harmless error analysis. See Merolillo v. Yates, 663 F.3d 444,
454–55 (9th Cir. 2011). Rather, a federal habeas court “must assess the prejudicial impact of
28
41
1
constitutional error in a state-court criminal trial” under the standard set forth by Brecht v.
2
Abramson. Fry v. Pliler, 551 U.S. 112, 121(2007). In Fry, the Supreme Court explained that a
3
federal habeas court need not apply the Chapman standard because Brecht “obviously subsumes”
4
Chapman. Id. at 120. Accordingly, on federal habeas review, the Brecht standard for prejudice
5
applies, not the Chapman standard. See Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010)
6
(“Accordingly, we apply the Brecht test without regard for the state court’s harmlessness
7
determination.”). Furthermore, because a federal habeas court applies the Brecht standard, it does
8
not defer to the state court’s prejudice analysis.
9
Under Brecht, the standard for determining whether relief for constitutional error must be
granted on federal habeas review is whether the error “had a substantial and injurious effect or
11
United States District Court
Northern District of California
10
influence in determining the jury’s verdict.” 507 U.S. at 637-38 (quoting Kotteakos v. United
12
States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “The inquiry cannot be merely
13
whether there was enough to support the result, apart from the phase affected by the error. It is
14
rather, even so, whether the error itself had substantial influence.” Merolillo, 663 F.3d at 454 (9th
15
Cir.2011) (quoting Kotteakos, 328 U.S. at 765). To determine whether the error had substantial
16
and injurious effect or influence, courts within the Ninth Circuit frequently consider the following
17
factors: (1) the importance of the witness’s testimony in the prosecution’s case; (2) whether the
18
testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting
19
the testimony of the witness on material points; (4) the extent of cross-examination otherwise
20
permitted; and (5) the overall strength of the prosecution’s case. Merolillo, 663 F.3d at 455 (citing
21
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
22
Petitioner asserts that the letters were prejudicial because they permitted the jury to draw
23
improper inferences concerning Petitioner’s implied malice. Petitioner argues that the letters
24
helped to establish that Petitioner had difficulty controlling the Presas and that, in general,
25
Petitioner evinced a conscious disregard of the danger to human life.
26
First, as to the Petitioner’s difficulty in controlling the Presas, a review of the record
27
demonstrates that there was evidence corroborating that point, and that there was an abundance of
28
such evidence as to conclude that the prosecution’s case against Petitioner was strong.
42
1
In two October 2000 letters to Aryan Brotherhood member Bretches, Noel describes
2
incidents in which Petitioner chased the Presas which had escaped from the apartment upon
3
opening of the front door. RT 4025, 4884. But as the record indicates, there was a substantial
4
amount of other evidence establishing that Petitioner had difficulty controlling the Presas, and that
5
there were several incidents in which the Presas wandered freely along the sixth floor apartment
6
hallway. In a letter that Petitioner herself wrote to Aryan Brotherhood member Schneider,
7
Petitioner admitted that she could not stop Bane if he wanted to go after another dog. RT 4891-
8
92. At trial, Petitioner testified that she could not control both Presas at the same time. RT 4678-
9
79, 4856-58, 4861, 4887, 4893. Several neighbors also testified that they observed Petitioner and
Noel struggle to maintain control of the Presas while walking them, as the Presas pulled the
11
United States District Court
Northern District of California
10
defendants in different directions, and even broke free from Petitioner’s grasp on one occasion.
12
RT 3370-71, 3496-97, 3181-82. Other witness testimony corroborated that the Presas wandered
13
freely in the apartment hallway on several occasions, with one neighbor testifying that shortly
14
before Whipple’s death, he observed one of the Presas unattended on the sixth floor. RT 3590-91,
15
RT 3301-06. Given the abundance of evidence that corroborates the assertion that Petitioner had
16
difficulty controlling the Presas, the prosecution’s case in establishing this assertion was strong.
17
Accordingly, this court cannot conclude that Noel’s letters had a substantial and injurious effect or
18
influence in establishing Petitioner’s inability to control the dogs.
As for establishing that Petitioner had a conscious disregard of the danger to human life,
19
20
21
the letters include the following:
An undated letter in which Noel states that he and Petitioner laughed when reading in the
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book Manstopper, and that Noel noticed that a prison inmate had inserted Noel’s name
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with regard to a man whose finger was bitten off. RT 4029.
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timourous little mousy blond, who weighs less than Hera.” RT 4035.
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January 11, 2002 letter in which Noel encounters Whipple and describes her as “a
December 27, 2000 letter sent to Aryan Brotherhood member Schneider, in which Noel
27
remarks that Petitioner agreed with Noel’s approval of an incident in which Schneider had
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stabbed a lawyer in court with a knife emblazoned with an Aryan Brotherhood symbol.
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1
Noel also notes to Schneider that neither he nor Petitioner would attempt to stop Schneider
2
if he attempted to escape from the courtroom.
3
January 12, 2001 letter sent to Schneider and Aryan Brotherhood member Bretches
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identifying the location of an Aryan Brotherhood dropout and prosecution witness in a
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federal case against the Aryan Brotherhood. The letter closed with the statement, “Hope
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tomorrow is a good mail day. It is always is if we hear from either you or Paul and a really
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great day if we hear from you both . . . .”
8
As to the letter in which Petitioner laughed at the passage in Manstopper about Noel’s
9
finger being bitten off, Petitioner herself testified that she laughed when Noel read her the passage
from Manstopper. RT 4825-26. Moreover, that Petitioner was laughing does not substantially
11
United States District Court
Northern District of California
10
support the notion that Petitioner had a conscious disregard of the danger to human life any more
12
than it suggests that Petitioner was merely having a laugh at Noel’s expense. Accordingly, this
13
letter was merely cumulative and could not have had a substantial and injurious effect or
14
influence.
15
As for the letter in which Noel describes Whipple in a derogatory fashion, the letter does
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not indicate that Knoller felt the same way as Noel, as the context of the letter suggests that only
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Noel and the dogs were present when they encountered Whipple. At any rate, Petitioner’s
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statements to the media -- in which she bore no responsibility for Whipple’s death, and placed
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Whipple partially responsible for the dog mauling incident -- not only corroborate, but provide
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much more substantial evidence of, Petitioner’s attitude towards Whipple than Noel’s description
21
in the letter. RT 4902-06, 4911-14. Accordingly, this letter could not have had a substantial or
22
injurious effect or influence.
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As for the two letters concerning the Aryan Brotherhood, the admission of these are more
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troubling. While they were admitted for the purpose of establishing that Noel and Petitioner were
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associates of the Aryan Brotherhood, RT 4626, 4808-10, the letters featured unsavory activities of
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the Aryan Brotherhood, and could have had a prejudicial impact on the jury in finding that the
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Petitioner had a conscious disregard of the danger to human life. Yet, as the Court of Appeal
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noted, the letters “were not impermissibly prejudicial.” Knoller, 2010 WL 3280200, at *53.
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1
There was other evidence that Petitioner was affiliated with the Aryan Brotherhood, with
2
Petitioner herself testifying that had a close relationship with inmate Schneider and knew that he
3
was a member of the Aryan Brotherhood. RT 4807-08, 4810-13, 4872-73. And the record
4
demonstrates a substantial showing that Petitioner evinced a conscious disregard of the danger to
5
human life. This included her making disparaging remarks about people who had complained
6
about the Presas, RT 4858-59, 4867-68, denying any responsibility for Whipple’s death and even
7
placing some blame on Whipple for the attack during her media appearance, RT 4806-07, 4959,
8
and failing to call 911 or assist the dying Whipple after the Presas had attacked her. Accordingly,
9
the Court does not find that these letters had a substantial and injurious effect.
10
In light of the strong case against Petitioner, and that much of the information was
United States District Court
Northern District of California
11
corroborated by other evidence in the record, the Court concludes that the admission of Noel’s
12
letters did not have a substantial and injurious effect or influence on the jury’s verdict.
3.
13
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Cumulative Error
In some cases, although no single trial error is sufficiently prejudicial to warrant reversal,
15
the cumulative effect of several errors may still prejudice a defendant so much that his conviction
16
must be overturned. Alcala v. Woodford, 334 F.3d 862, 893–95 (9th Cir. 2003). Cumulative error
17
is more likely to be found prejudicial when the government's case is weak. United States v.
18
Frederick, 78 F.3d 1370, 1381 (9th Cir.1996). Where there is no single constitutional error
19
existing, nothing can accumulate to the level of a constitutional violation. Hayes v. Ayers, 632
20
F.3d 500, 524 (9th Cir. 2011); Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir.2002). Similarly,
21
there can be no cumulative error when there has not been more than one error. United States v.
22
Solorio, 669 F.3d 943, 956 (9th Cir. 2012). Accordingly, the Court finds no cumulative error.
23
C.
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The federal rules governing habeas cases brought by state prisoners require a district court
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that issues an order denying a habeas petition to either grant or deny a certificate of appealability.
26
See Rules Governing § 2254 Case, Rule 11(a).
27
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Certificate of Appealability
A judge shall grant a certificate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the
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1
certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). “Where a
2
district court has rejected the constitutional claims on the merits, the showing required to satisfy
3
§ 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find
4
the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
5
529 U.S. 473, 484 (2000).
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a certificate of
6
7
appealability (COA) under 28 U.S.C. § 2253(c) is GRANTED as to Petitioner’s Right to Counsel
8
claim and DENIED as to Petitioner’s Confrontation Clause claim, because as to the latter claim,
9
Petitioner has not demonstrated that “reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. The COA on
11
United States District Court
Northern District of California
10
Petitioner’s Right to Counsel claim does not obviate the requirement that Petitioner file a notice of
12
appeal within thirty (30) days.
13
IV.
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15
CONCLUSION
For the reasons stated above, the petition for a writ of habeas corpus is DENIED, and a
certificate of appealability is GRANTED IN PART.
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The Clerk shall enter judgment in favor of respondent and close the file.
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IT IS SO ORDERED.
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Dated: July 3, 2014
______________________________________
JON S. TIGAR
United States District Judge
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