Johnson v. Swarthout et al

Filing 55

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS; DENYING 54 MOTION FOR EVIDENTIARY HEARING; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 8/1/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 8/1/2014)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5
6
7

No. C 11-6688 CW (PR)

PAUL SAMUEL JOHNSON,

ORDER DENYING PETITION
FOR A WRIT OF HABEAS
CORPUS; DENYING MOTION
FOR EVIDENTIARY
HEARING; DENYING
CERTIFICATE OF
APPEALABILITY

Petitioner,
v.
STEVE FREITAS, Sonoma County
Sheriff,

8

Respondent

Doc. no. 54

9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20

Petitioner Paul Samuel Johnson, a state prisoner proceeding
pro se, filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging his state criminal conviction, in
which he asserts two cognizable claims: (1) the improper admission
of an uncharged incident violated his due process rights; and
(2) insufficient evidence supported his conviction.1

has filed an answer and a memorandum of points and authorities in
support thereof and Petitioner has filed a traverse.
moves for an evidentiary hearing.

23
24

Doc. no. 54.

Petitioner

For the reasons

discussed below, the Court DENIES the petition, the motion for an
evidentiary hearing and a certificate of appealability.

21
22

Respondent

BACKGROUND
I. Procedural History
On October 9, 2009, a Sonoma County jury convicted Petitioner
of threatening a public official.

Clerk’s Transcript (CT) at 185,

25
26
27
28

1

Petitioner asserted a third claim, which the Court
previously dismissed as noncognizable on federal habeas review.
See Doc. no. 25

1

187.

In a bifurcated proceeding, the jury found that Petitioner

2

had served a prior prison term.

3

the trial court sentenced Petitioner to three years in state

4

prison.

5

appeal in the California Court of Appeal raising the two claims he

6

asserts in this petition.

7

order, affirmed the conviction.

8

4656948 (Cal. Ct. App. Nov. 18, 2010)(unpublished).

9

California Supreme Court summarily denied review on January 26,

CT at 252-53.

On November 10, 2009,

On June 22, 2010, Petitioner filed an

The Court of Appeal, in a written
Ex. 9; People v. Johnson, 2010 WL
The

United States District Court
For the Northern District of California

10

2011.

11

writ of habeas corpus in the California Supreme Court, all of

12

which were summarily denied.

13

Exs. 10 and 11.

CT at 187.

Petitioner filed seven petitions for a

Exs. 12-25.

On March 19, 2013, this Court denied Respondent’s motion to

14

dismiss for failure to exhaust and dismissed Petitioner’s Claim 3

15

as not cognizable on federal habeas review.

16

April 5, 2013, the Court directed Respondent to answer Claims 1

17

and 2 in the petition.

18

II. Statement of Facts

19
20

Doc. no. 25.

On

Doc. no. 28.

The California Court of Appeal summarized the facts of this
case as follows:

21

A. Uncharged June 26, 2009 Incident

22

On June 26, 2009, appellant Paul Samuel Johnson was arrested
for a driving violation. Sonoma County Sheriff’s Deputies
Michael Miller and Manuel Morataya were assigned to work in
the Sonoma County jail that day. After Johnson was moved to
a dressing booth and a strip search was conducted, he asked
Deputy Miller to retrieve some pictures of his child. When
Deputy Miller declined, Johnson became angry, raised his
voice, and called the deputy a “mother fucker” several times.
Johnson told a third deputy, “You ain’t nothing, I’ll do to
you what I did to that punk C.O. [Correctional Officer]
Romero.”

23
24
25
26
27
28

2

1
2
3
4

Deputy Morataya overheard Johnson make numerous derogatory
comments to the officers during the booking process, calling
them “stupid,” “pussies,” and “assholes.” Morataya later
testified that Johnson also told the officers: “Fuck you,
fuck off, you are nothing but assholes, you ain’t nothing. I
can’t wait to see you on the street because you ain’t
nothing.”

5
6
7
8
9

United States District Court
For the Northern District of California

10

When Deputy Miller attempted to handcuff Johnson, he refused
to turn around and continued to demand his pictures. After a
third request, [FN1] Johnson complied. Once he was
handcuffed, he was removed from the dressing booth and taken
to a cell. Johnson had his hands fisted and assumed a stance
that suggested that the arrestee was ready to fight during
the incident.
FN1 Deputy Morataya later testified that Deputy Miller
made six requests before Johnson complied.

11

B. Charged July 10, 2009 Incident
12

24

Two weeks later, on July 10, 2009, Sonoma County Sheriff’s
Deputies Lynn Daley and Michael Miller were supervising Nurse
Celia Soto while she delivered medication to jail inmates.
After Nurse Soto gave Johnson an ear medication and some
cotton, he became agitated and yelled that he needed more
cotton. According to Nurse Soto, Johnson yelled: “Are you
fucking stupid? . . . I have a history of ear infections and
I’m going to get another fucking ear infection.” Nurse Soto
told Johnson that if he asked nicely next time she would give
him more. Johnson continued to swear at Nurse Soto in a
loud, angry tone. Deputy Daley told Johnson to be more
respectful and advised him that he was going to write Johnson
up for a rule violation. After the deputy began to walk
away, Johnson called him back and said, “Go fuck yourself.”
Johnson became more agitated. Deputy Daley told Johnson that
he was going to write Johnson up for being disrespectful to
the staff and undermining his authority. Johnson yelled at
Deputy Daley: “That’s okay. I’ll be getting out soon and I’ll
be at your house fucking up your family.” Nurse Soto later
testified that she heard Johnson tell the deputy: “I’ll get
you when I get out. I fucking know where you live and I’m
going to fuck up your family.”

25

C. Procedural History

26

On August 18, 2009, Johnson was charged by information with
threatening a public officer in July 2009. The information
alleged that he had three prior convictions that made him
ineligible for probation and that he had served a prior

13
14
15
16
17
18
19
20
21
22
23

27
28

3

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11

prison term. At trial, evidence of the June and July 2009
incidents came before the jury. Evidence of the June 2009
incident was not charged as a crime, but was admitted as
other crimes evidence. The July 2009 incident was the basis
for the charge of threatening a public official.
Johnson testified at trial, stating that he was making fun of
Deputy Daley during this incident. He also denied making the
statements attributed to him about Daley’s family. Deputy
Daley testified that he was concerned about Johnson’s threat
against his family. He wrote an incident report and informed
his sergeant of this threat because of that concern.
Prompted by this incident, Deputy Daley had a security system
installed at his home. The jury also heard testimony from
Deputy Morataya regarding the statements Johnson made during
the June 2009 incident. Deputy Miller testified about
statements Johnson made during both incidents. The jury
found Johnson guilty of the charge and later found the prior
prison term enhancement allegation to be true. . . .
Ex. 9 at 1-3.

12
13

LEGAL STANDARD
A federal court may entertain a habeas petition from a state

14

prisoner “only on the ground that he is in custody in violation of

15

the Constitution or laws or treaties of the United States.”

16

U.S.C. § 2254(a).

17

Penalty Act (AEDPA) of 1996, a district court may not grant habeas

18

relief unless the state court’s adjudication of the claim:

19

“(1) resulted in a decision that was contrary to, or involved an

20

unreasonable application of, clearly established Federal law, as

21

determined by the Supreme Court of the United States; or

22

(2) resulted in a decision that was based on an unreasonable

23

determination of the facts in light of the evidence presented in

24

the State court proceeding.”

25
26
27

28

Under the Antiterrorism and Effective Death

28 U.S.C. § 2254(d); Williams v.

Taylor, 529 U.S. 362, 412 (2000).
A state court decision is “contrary to” Supreme Court
authority, that is, falls under the first clause of § 2254(d)(1),
only if “the state court arrives at a conclusion opposite to that

28

4

1

reached by [the Supreme] Court on a question of law or if the

2

state court decides a case differently than [the Supreme] Court

3

has on a set of materially indistinguishable facts.”

4

529 U.S. at 412-13.

5

application of” Supreme Court authority, under the second clause

6
7
8

Williams,

A state court decision is an “unreasonable

of § 2254(d)(1), if it correctly identifies the governing legal
principle from the Supreme Court’s decisions but “unreasonably
applies that principle to the facts of the prisoner’s case.”
at 413.

Id.

The federal court on habeas review may not issue the writ

9

“simply because that court concludes in its independent judgment
United States District Court
For the Northern District of California

10

that the relevant state-court decision applied clearly established
11

federal law erroneously or incorrectly.”

Id. at 411.

Rather, the

12

application must be “objectively unreasonable” to support granting
13

the writ.

Id. at 409.

Under AEDPA, the writ may be granted only

14

“where there is no possibility fairminded jurists could disagree
15
16
17

that the state court’s decision conflicts with this Court’s
precedents.”

Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

If constitutional error is found, habeas relief is warranted

18

only if the error had a “‘substantial and injurious effect or

19

influence in determining the jury’s verdict.’”

20

532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S.

21

619, 638 (1993)).

22

Penry v. Johnson,

When there is no reasoned opinion from the highest state

23

court to consider the petitioner’s claims, the court looks to the

24

last reasoned opinion of the highest court to analyze whether the

25

state judgment was erroneous under the standard of § 2254(d).

26

Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991).

27

case, the highest court to issue a reasoned decision on

28

Petitioner’s claims is the California Court of Appeal.
5

In the present

DISCUSSION

1
2
3

I. Admissibility of Uncharged Offense
Petitioner contends that the admission of the uncharged event

4

violated his due process rights because it inflamed the jury

5

against him and had no relationship to the charged offense.

6

A. Court of Appeal Opinion

7

The Court of Appeal denied this claim, as follows:

8

[E]vidence of uncharged crimes is admissible to prove certain
specific facts including the intent to commit the charged
crime. (§ 1101, subd. (b).) . . .

9

United States District Court
For the Northern District of California

10
11
12
13

As substantial prejudice is inherent in the admission of this
evidence, section 352 requires that uncharged offenses be
admitted only if their probative value is substantial and not
largely outweighed by the probability that the admission of
this evidence would create a serious danger of undue
prejudice, of confusing the issues, or of misleading the
jury. (People v. Ewoldt, 7 Cal. 4th at 404-405.) . . .

14

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

Johnson argues that the evidence of the June 2009 incident
was not admissible to prove his July 2009 intent because it
lacked substantial probative value. Johnson’s July 2009
intent was in dispute for two reasons. First, it was an
element of the charged offense that the prosecutor was
required to prove beyond a reasonable doubt. (Pen. Code,
§ 71.) Second, Johnson testified that some of his comments
to Deputy Daley were intended as a joke rather than a serious
threat.
An uncharged offense is admissible to prove intent for a
charged offense if the defendant committed that offense with
the same intent required for the charged offense. (People v.
Ewolt, 7 Cal. 4th at 394, fn. 2.) The offense of threatening
a peace officer requires an intent to cause the public
officer to do, or refrain from doing, any act in the course
of his or her duties. (Pen. Code, § 71.) The intent
underlying the June 2009 incident must be sufficiently
similar to that required for the charged incident to support
the inference that Johnson probably harbored the same intent
in each instance. (See People v. Ewoldt, 7 Cal. 4th at 402.)

27
28

6

4

In our view, the intent behind the June 2009 incident is
sufficiently similar to that at issue at trial to establish
Johnson’s July 2009 intent. Both instances involved the use
of vulgar and threatening words to intimidate correctional
officers in a jail setting. Thus, the intent behind the June
2009 incident had substantial probative value to prove
Johnson’s intent during the July 2009 incident.

5

Section 352

6

Alternatively, Johnson contends that even if the June 2009
incident was admissible under section 1101, its probative
value was substantially outweighed by its undue prejudice
under section 352. . . . The prejudice that section 352 seeks
to avoid is not that naturally flowing from relevant, highly
probative evidence. Instead, the statute attempts to avoid
the prejudging of a case based on extraneous facts. (People
v. Zapien (1993) 4 Cal. 4th 929, 958; People v. Escobar
(1996) 48 Cal. App. 4th 999, 1023.) In this context,
prejudicial evidence tends to evoke an emotional bias against
the defendant as an individual based on evidence that has
very little relevance to disputed trial issues. (People v.
Bolin (1998) 18 Cal. 4th 297, 320; People v. Yu (1983) 143
Cal. App. 3d 358, 377.)

1
2
3

7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20

Here, the trial court did not abuse its discretion in
concluding that section 352 did not require exclusion of the
uncharged act. The June 2009 offense was less inflammatory
than the evidence of the July 2009 offense. The uncharged
offense had substantial probative value to prove Johnson’s
intent to commit the charged offense. That probative value
was more substantial because the uncharged threat was made
only two weeks before the charged offense and because the
evidence of the two acts of offenses came from the testimony
of multiple witnesses. (See People v. Kipp (1998) 18 Cal.
4th 349, 371-372.) Considering all of the circumstances, we
are satisfied the trial court acted within its discretion in
admitting the prior uncharged offense as evidence of intent.

21

Ex. 9 at 3-5.
22

B. Federal Authority
23

Federal habeas relief is unavailable for violations of state
24

law or for alleged error in the interpretation or application of
25

state law.

Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011).

A

26

state court's evidentiary ruling is not subject to federal habeas
27

review unless the ruling violates federal law, either by
28

7

1

infringing upon a specific federal constitutional or statutory

2

provision or by depriving the defendant of the fundamentally fair

3

trial guaranteed by due process.

4

41 (1984).

5

permissible inferences the jury may draw from the evidence.”

6

Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

7

The Supreme Court "has not yet made a clear ruling that admission

8

of irrelevant or overtly prejudicial evidence constitutes a due

9

process violation sufficient to warrant issuance of the writ."

Pulley v. Harris, 465 U.S. 37,

Due process is violated only if there are “no

United States District Court
For the Northern District of California

10

Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (finding

11

that trial court's admission of irrelevant pornographic materials

12

was "fundamentally unfair" under Ninth Circuit precedent but not

13

contrary to, or an unreasonable application of, clearly

14

established federal law under § 2254(d)).

15

C. Analysis

16

The state appellate court determined that the uncharged

17

incident was admissible under state law.

A state court's

18

interpretation of state law binds a federal court in habeas corpus

19

proceedings.

20

Feiock, 485 U.S. 624, 629 (1988) (even a determination of state

21

law made by an intermediate appellate court must be followed).

22

Petitioner's claim that the admission of the evidence violated his

23

right to due process is premised on his assertion that state law

24

was improperly applied to his case.

25

to accept the Court of Appeal's determination that state law was

26

properly applied in his case.

27

fails on this basis alone.

Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Hicks v.

However, this Court is bound

Petitioner’s due process claim

28

8

1

The claim also fails because the Court of Appeal’s ruling was

2

not contrary to or an unreasonable application of Supreme Court

3

authority.

4

authority holds admission of prejudicial or irrelevant material

5

constitutes due process violation).

6

Court authority on an issue, as in this case, the state court’s

7

ruling cannot be contrary to or an unreasonable application of

8

Supreme Court authority.

9

(9th Cir. 2010) (quoting Wright v. Van Patten, 552 U.S. 120, 126

See Holly, 568 F.3d at 1101 (no Supreme Court

Where there is no Supreme

See Ponce v. Felker, 606 F.3d 596, 604

United States District Court
For the Northern District of California

10

(2008))(“If Supreme Court cases ‘give no clear answer to the

11

question presented,’ the state court’s decision cannot be an

12

unreasonable application of clearly established federal law.”).

13

Finally, Petitioner has not shown that a specific

14

constitutional guarantee was violated or that he was denied a fair

15

trial.

16

relevant to the jury's determination whether Petitioner was joking

17

when he made the remarks on July 10, 2009, because, in both

18

instances, Petitioner’s action showed the same intent, to threaten

19

Sonoma County jail officers so as to interfere with the

20

performance of their duties.

21

the “permissible inference” that Petitioner acted with the same

22

intent when he committed the charged offense as when he committed

23

the uncharged action, his constitutional rights were not violated.

24

See Jammal, 926 F.2d at 920; Estelle v. McGuire, 502 U.S. 62, 70

25

(1991) (admission of evidence that was relevant to show intent did

26

not violate the Due Process Clause).

27
28

The evidence of the uncharged June 26 incident was

Because the jury could have drawn

Furthermore, the evidence of the uncharged event was not so
prejudicial as to deprive Petitioner of a fair trial.
9

The

1

uncharged event was particularly probative because it took place

2

only two weeks before the charged offense and, as discussed above,

3

it was relevant to the jury in determining the element of intent.

4

Furthermore, the uncharged event would not tend to arouse the

5

passions of the jury because it involved an incident that was less

6

inflammatory than the charged offense.

7

For all these reasons, the Court of Appeal’s denial of this

8

claim was not objectively unreasonable.

9

ground is denied.

United States District Court
For the Northern District of California

10
11
12

Habeas relief on this

II. Sufficient Evidence
Petitioner contends insufficient evidence supported his
conviction.

13

A. Court of Appeal Opinion

14

The Court of Appeal denied this claim, as follows:

15

1. Standard of Review

16

. . . When assessing a claim of insufficiency of evidence, we
review the whole record in the light most favorable to the
judgment. We determine whether the record discloses
substantial evidence that is reasonable, credible, and of
solid value such that a reasonable jury could find the
defendant guilty beyond a reasonable doubt. (People v.
Elliot (2005) 37 Cal. 4th 453, 466. . . .

17
18
19
20
21
22
23
24
25
26

It is unlawful for a person to threaten a public officer to
do, or refrain from doing, any act in the performance of his
or her duties. To be unlawful, the treatment [sic] must be
directly communicated to the officer, must threaten to
inflict an unlawful injury on a person or property, and must
reasonably appear to the officer that the threat could be
carried out. (Pen. Code, § 71.) A specific intent to
influence an officer’s performance of duty and an apparent
ability to carry out the threat are necessary elements of
this offense. (In re Ernesto H. (2004) 125 Cal. App. 4th
298, 308; People v. Hopkins (1983) 149 Cal. App. 3d 36, 4041.)

27
28

10

2. Intent to Interfere with Duties
1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Johnson contends there was insufficient evidence that he
intended to influence the performance of Deputy Daley’s
duties by threatening him. He characterizes his threat to
Deputy Daley as an angry retort that did not violate Penal
Code section 71. Specifically, he argues that when he said——
“[t]hat’s okay”——he did so believing that he could not change
Deputy Daley’s decision to write him up. He asserts that his
testimony established that he had no intent to influence the
officer’s actions.
A threat intended as nothing more than an angry retort is
insufficient to satisfy the intent requirement of the
underlying statute. (People v. Tuilaepa (1992) 4 Cal. 4th
569, 590.) On appeal, Johnson asserts that his testimony
shows that he made an angry retort [FN3] to Deputy Daley,
not that he had any intent to harm his family. . . . On
appeal, we must presume in support of the jury’s verdict the
existence of every fact that can be reasonably deduced from
that evidence. (People v. Smith, 37 Cal. 4th at 738-739;
People v. Snow (2003) 30 Cal. 4th 43, 66.) We may reverse a
judgment for insufficiency of evidence only if it appears
that under no hypothesis whatever is there substantial
evidence to support the underlying conviction. (People v.
Bolin (1998) 18 Cal. 4th 297, 331.)
FN3 This differs from Johnson’s trial testimony that he
was making fun of Deputy Daley during this incident.
In this matter, the jury heard evidence from which it could
infer that Johnson engaged in a practice of threatening
correctional officers when they did not comply with his
demands. The words that he directed at Deputy Daley and the
circumstances under which they were uttered would allow a
reasonable jury to infer that Johnson intended to prevent the
officer from writing him up for a rule violation. The jury
also heard contrary evidence in the form of Johnson’s
testimony, which it apparently rejected that evidence as
lacking credibility. A determination of the credibility of
witnesses is the exclusive province of the jury. (People v.
Barnes (1986) 42 Cal. 3d 284, 303-304.) We have no power on
appeal to substitute our assessment of a witness’s
credibility for that made by the jury. (See People v. Pace
(1994) 27 Cal. App. 4th 795, 798.) We are satisfied that a
rational juror could find that Johnson’s statement was
intended to prevent Deputy Daley from performing his duties.
(See, e.g., People v. Dunkle (2005) 36 Cal. 4th 861, 919.)

27
28

11

3. Reasonableness of Belief
1
2
3
4
5
6
7

Johnson also contends there was insufficient evidence of the
reasonableness of Deputy Daley’s belief that he would carry
out his threats. Although Daley’s testimony indicates he
actually took Johnson’s threats seriously, Johnson argues
that Daley’s belief that he would actually carry out the
threat was unreasonable. We disagree. The charged offense
does not require a present ability to carry out the threat.
(People v. Harris (2008) 43 Cal. 4th 1269, 1311.) All that
is required is that the victim perceives the threat as
reasonably possible of being carried out. (In re Marcus T.
(2001) 89 Cal. App. 4th 468, 471-472; see In re Ricky T.
(2001) 87 Cal. App. 4th 1132, 1139.)

8
9

United States District Court
For the Northern District of California

10
11
12
13
14

Here, the future intent to harm the Daley family was explicit
in Johnson’s threat. Johnson testified at trial, thus
allowing the jury to observe his demeanor. Apparently, the
jury found other aspects of his testimony about his intent to
lack credibility. A reasonable jury could infer from all the
circumstances that Deputy Daley reasonably believed the
threats were serious. When all the evidence is considered in
the light most favorable to the judgment, we conclude the
jury’s verdict was supported by sufficient evidence.
Ex. 9 at 6-8 (footnote in original).

15

B. Federal Authority

16

The Due Process Clause "protects the accused against

17

conviction except upon proof beyond a reasonable doubt of every

18

fact necessary to constitute the crime with which he is charged."

19

In re Winship, 397 U.S. 358, 364 (1970).

20

alleges that the evidence in support of his state conviction

21

cannot be fairly characterized as sufficient to have led a

22

rational trier of fact to find guilt beyond a reasonable doubt

23

states a constitutional claim, which, if proven, entitles him to

24

federal habeas relief.

25

324 (1979).

A state prisoner who

Jackson v. Virginia, 443 U.S. 307, 321,

26

A federal court reviewing collaterally a state court

27

conviction does not determine whether it is satisfied that the

28

12

1

evidence established guilt beyond a reasonable doubt.

Payne v.

2

Borg, 982 F.2d 335, 338 (9th Cir. 1992).

3

habeas court in general question a jury's credibility

4

determinations, which are entitled to near-total deference.

5

Jackson, 443 U.S. at 326.

6

conflicting inferences, a federal habeas court "must presume --

7

even if it does not affirmatively appear in the record -- that the

8

trier of fact resolved any such conflicts in favor of the

9

prosecution, and must defer to that resolution."

Nor does a federal

If confronted by a record that supports

Id.

The federal

United States District Court
For the Northern District of California

10

court "determines only whether, 'after viewing the evidence in the

11

light most favorable to the prosecution, any rational trier of

12

fact could have found the essential elements of the crime beyond a

13

reasonable doubt.'"

14

U.S. at 319).

15

proof of guilt beyond a reasonable doubt may the writ be granted.

16

Jackson, 443 U.S. at 324.

17

Payne, 982 F.2d at 338 (quoting Jackson, 443

Only if no rational trier of fact could have found

To grant relief under the AEDPA, a federal habeas court must

18

conclude that "the state court's determination that a rational

19

jury could have found that there was sufficient evidence of guilt,

20

i.e., that each required element was proven beyond a reasonable

21

doubt, was objectively unreasonable."

22

957, 965 (9th Cir. 2011); see also Coleman v. Johnson, 132 S. Ct.

23

2060, 2062 (2012) (per curiam) ("Jackson claims face a high bar in

24

federal habeas proceedings . . .").

Boyer v. Belleque, 659 F.3d

25

C. Analysis

26

Petitioner argues there was insufficient evidence to support

27

Penal Code section 71’s requirements that: (1) Petitioner had the

28

intent to influence Deputy Daley’s job performance; and (2) Deputy
13

1

Daley’s belief that Petitioner would carry out the threat was

2

reasonable.
1. Intent

3
4

To establish Petitioner’s guilt under California Penal Code

5

section 71, the prosecutor had to prove that Petitioner intended

6

to influence Deputy Daley’s job performance.

7

149 Cal. App. 3d 26, 41 (1983).

8

testified as follows.

9

attended to by Nurse Soto, who handed him medication and cotton

People v. Hopkins,

At the trial, Deputy Daley

Petitioner was in his cell and was being

United States District Court
For the Northern District of California

10

balls for his ears.

11

Daley heard Petitioner respond rudely to Nurse Soto because he

12

wanted her to give him more cotton balls.

13

Daley told Petitioner that he would have to write him up for being

14

rude and then he turned and started walking away from Petitioner’s

15

cell.

16

leaned forward toward Petitioner’s cell so that he could hear him,

17

Petitioner said, “Go fuck yourself.”

18

away again, and then Petitioner yelled, “That’s okay.

19

getting out soon and I’ll be at your house fucking up your

20

family.”

21

agitated as he kept talking.

22

Deputy Daley walked away but Deputy Daley did not hear him say

23

anything specific after he threatened Deputy Daley’s family.

24

Deputy Daley did not know when Petitioner would be released from

25

custody, but he interpreted Petitioner’s words that he would be

26

getting out “soon,” to literally mean he would soon be released.

27

RT at 447.

Id.

Reporter’s Transcript (RT) at 445.

RT at 446.

Deputy

Deputy

Petitioner called him back, and when Deputy Daley

RT at 446-47.

Id.

Deputy Daley walked
I’ll be

Petitioner became progressively more
Id.

28

14

Petitioner continued to yell as

Id.

1

Nurse Soto testified that Petitioner cussed at her in a loud

2

and angry tone of voice.

3

after Deputy Daley told Petitioner he would write him up for

4

disrespecting her, Petitioner said “Fuck you, Daley.

5

going to fuck your wife and . . . “

6

standing no more than two feet away from Petitioner’s cell when he

7

made that statement.

8

“I’ll get you when I get out.

9

I’m going to fuck up your family.”

Id.

RT at 471.

She also testified that,

RT at 472.

And I’m

Nurse Soto was

Nurse Soto also heard Petitioner say,
I fucking know where you live and
Id.

Nurse Soto testified that

United States District Court
For the Northern District of California

10

she was shocked by Petitioner’s words because she “had never heard

11

an inmate speak to an officer like that before, use those exact

12

words.”

13

RT at 473-74.

Viewing this testimony in the light most favorable to the

14

prosecution, a rational jury could have found that Petitioner made

15

threats to Deputy Daley with the intent to prevent Deputy Daley

16

from performing his duty of writing a disciplinary report about

17

Petitioner’s rude remarks to Nurse Soto.

18

Petitioner does not deny that he made these statements to

19

Deputy Daley, but argues they were nothing but an angry retort or

20

a joke, as he testified at his trial.

21

instructed that, to find Petitioner guilty, it had to find that

22

his remarks to Deputy Daley were a threat to inflict an unlawful

23

injury and that Petitioner intended to influence Deputy Daley’s

24

performance of his job in making the threat.

25

instructions).

26

Daley and Nurse Soto.

27

necessarily found that Petitioner’s remarks were not merely an

28

angry retort or joke and resolved the credibility issue in favor

However, the jury was

RT at 572 (jury

The jury heard testimony from Petitioner, Deputy
In finding Petitioner guilty, the jury

15

1

of Deputy Daley and Nurse Soto.

Under Jackson, if the record

2

supports conflicting inferences, the Court must presume that the

3

trier of fact resolved the conflict in favor of the prosecution.

4

See Jackson, 443 U.S. at 326.

5

federal habeas court to defer to the jury’s credibility findings.

6

See id.

Furthermore, Jackson requires a

7

For all the reasons stated above, the evidence, viewed in a

8

light most favorable to the prosecution, supports the conclusion

9

that a rational jury could have found that Petitioner had the

United States District Court
For the Northern District of California

10

intent required under California Penal Code section 71.

11

2. Deputy Daley’s Reasonable Belief

12

Petitioner argues that Deputy Daley could not reasonably have

13

believed that Petitioner could carry out any threat.

As mentioned

14

by the Court of Appeal, Penal Code section 71 does not require a

15

present ability to carry out the threat; all that is required is

16

that Deputy Daley reasonably perceived the threat as possibly

17

being carried out.

18

(2008) (section 71 does not require defendant to have capability

19

to inflict the threatened injury immediately; it is sufficient if

20

defendant made threat with requisite intent and it reasonably

21

appeared to the recipient that the threat could be carried out).

See People v. Harris, 43 Cal. 4th 1269, 1311

22

Defendant Daley testified as follows:

23

Q: When you heard that statement about your family, what was
your reaction?

24
25
26
27

A: I was concerned. I mean, he had gotten so upset over
something as simple as cotton and then further upset with a
warning, I thought that if I really did something to him he
was going to continue to progress and could possibly show up
at my home.

28

16

1
2
3
4
5

Q: When you say do something to him, what are you talking
about?
A: Well, write up a report so he would have lost some type of
privilege, time in the day room, commissary, candy bars or
something and would have been negative. It would have
prolonged his time in the administrative segregation.
Q: You still went ahead and wrote up an incident report; is
that right?

6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13

A: Yes. Because of what he had said, I——and because I did
believe he would follow through with it, I informed the
sergeant right away and, you know, yeah, I did complete a
report.
. . .
Q: What steps, if any, did you take with regard to your
feelings?
A: Well, I wrote the report initially. That was the first
step in what I felt protecting myself. I informed my wife.
. . . And then we discussed it and felt that we probably
should put in a security system.

14
15
16
17
18

Q: Did you take any steps——did you and/or your wife take
steps to get the security system?
A: I initially did——wanted to make sure we got the right one,
so I did some research as far as looking online to get the
best deal. . . . We had finally settled on ADT, and then my
wife said she would go ahead and make the arrangements and
get it installed.

19

Q: And did that, in fact, happen?
20

A: Yes.
21
22
23
24

Q: Is that security system in place now?
A: Yes.
Q: Do you remember the approximate date of when you had it
installed?

25

A: I don’t.

I was at work, so I can’t recall exactly.

26

Q: Who paid for this?
27

A: I did.
28

17

1

Q: How much did you pay?

2

A: It was about a hundred dollars for the installation and
then about forty dollars a month out of pocket.

3

Q: Had there been any talk with your wife beforehand about
getting a security system anyway?

4
5

A: No.
6
7

Q: Was there any other reason than what the defendant said
that prompted you to get the security system?

8

A: No.

9

RT at 448-51.

United States District Court
For the Northern District of California

10

On cross-examination, Deputy Daley admitted that he had not

11

installed the security system until the day after Petitioner’s

12

preliminary hearing, which took place approximately one month

13

after Petitioner threatened him.

14

admitted that the security system had not been installed at his

15

house on the date he sent an email to the district attorney

16

indicating that the security system had been installed.

17

459.

18

sent the email without checking with his wife, who was in charge

19

of getting the security system installed, and he thought she had

20

already arranged for its installation.

21

also testified that his reason for installing the system was not

22

because of what he learned at Petitioner’s preliminary hearing or

23

to enhance the People’s case against Petitioner.

24

RT at 460-61.

Deputy Daley also

RT at

On redirect questioning, Deputy Daley testified that he had

RT at 463.

Deputy Daley

RT at 464.

Taking this evidence in the light most favorable to the

25

prosecutor, a rational jury could have concluded that Deputy Daley

26

had a reasonable belief that Petitioner would carry out his

27

threats.

28

18

Petitioner argues that Deputy Daley’s testimony was not

1
2

credible because he lied to the prosecutor about when he bought

3

the home security system and because he waited until the day after

4

Petitioner’s preliminary hearing to buy it.

5

counsel impeached Deputy Daley about his false statement in his

6

email to the prosecutor, the jury nonetheless believed Deputy

7

Daley’s testimony regarding Petitioner’s belligerent manner and

8

threatening words and concluded that, even if he had not

9

immediately bought the alarm system, it was reasonable for him to

Although defense

United States District Court
For the Northern District of California

10

have thought Petitioner could carry out his threat.

11

habeas review, the court must defer to the jury’s credibility

12

determinations.

13

338.

14

credibility does not establish that insufficient evidence

15

supported the jury’s finding that Deputy Daley had a reasonable

16

belief that Petitioner could carry out his threats.

17

On federal

See Jackson, 443 U.S. at 326; Payne, 982 F.2d at

Therefore, Petitioner’s argument about Deputy Daley’s

Citing his trial court motion to dismiss the indictment under

18

California Penal Code section 995,2 Petitioner argues that

19

California Penal Code section 17 requires that he, as a prisoner,

20

had to have a release date from prison in order to be found guilty

21

under this statute.

22

release date, he cannot be guilty of this offense.

23
24
25
26
27

He concludes that, because he did not have a
CT 36-39.

In Petitioner’s section 995 motion, defense counsel argued
that section 71’s requirement that Petitioner have the “apparent
2

California Penal Code section 995 allows a defendant to
file a motion to set aside the criminal indictment or information
if, at a preliminary hearing, the prosecutor does not establish
probable cause that the defendant committed the charged offense.
Perry v. Superior Court, 57 Cal. 2d 276, 283 (1962).

28

19

1

ability to carry out the threat” was not met at Petitioner’s

2

probable cause hearing because the court did not allow Deputy

3

Daley to answer defense counsel’s question, “Isn’t it true that

4

Petitioner was not going to be released in a few weeks?”

5

39.

6

that question, he would have testified that Petitioner was not

7

going to be released any time soon, and this would have shown

8

Petitioner did not have the ability to carry out the threat.

9

The trial court denied this motion, as follows:

United States District Court
For the Northern District of California

10
11
12
13
14
15
16

CT at

Defense counsel argued that, if Deputy Daley had answered

Id.

[T]he motion should be denied. It’s clear to me that Judge
Antolini did assume for purposes of argument that Mr. Johnson
did not, in fact, have a release date. The correctional
officer testified that the correctional officer was unaware
of any release date, whether Mr. Johnson had one or not. And
so, the Court assumed that Mr. Johnson did not have a release
date for the sake of the argument. But there is no
indication that Mr. Johnson is serving——committed to serve an
unparolable life term, which would make the threat arguably
impossible of execution. Instead, Mr. Johnson was in custody
on a misdemeanor with a maximum term of confinement of one
year, and he was on a parole violation, which also has a
limited term of confinement.

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

So, Mr. Johnson, in fact, had a release date from the records
that are available to the Court. And therefore, the Court
does deny the 995 motion.
RT at 34-35.
Petitioner’s argument about a release date is meritless.
First, there is no requirement in the statute that Petitioner had
to have a known release date at the time he threatened Deputy
Daley.

Second, as explained by the trial court, even if

Petitioner did not have a specific release date at the time he
made the threats to Deputy Daley, he was in jail only for a
misdemeanor and parole violation, both of which require short
terms of imprisonment.

That Petitioner would serve short
20

1

sentences was equivalent to having a specific release date,

2

because he soon would be capable of carrying out the threat.

3

In summary, taking all the evidence in the light most

4

favorable to the prosecution, the state court's determination that

5

a rational jury could have found that each required element of

6

Penal Code section 71 was proven beyond a reasonable doubt was not

7

objectively unreasonable.

8

III. Evidentiary Hearing

9

Petitioner files a separate motion for an evidentiary

10

United States District Court
For the Northern District of California

Habeas relief on this claim is denied.

hearing.

11

present.

12
13
14
15
16

However, he does not indicate what evidence he would

As discussed above, Petitioner has failed to state a claim
for habeas relief.

Accordingly, Petitioner’s request for an

evidentiary hearing on any ground is denied.

See Tejada v.

Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (no hearing required
if allegations, viewed against the record, fail to state a claim
for relief).

17

IV. Certificate of Appealability
18

The federal rules governing habeas cases brought by state
19

prisoners require a district court that denies a habeas petition
20

to grant or deny a certificate of appealability in the ruling.
21

Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
22

A petitioner may not appeal a final order in a federal habeas
23
24
25
26

corpus proceeding without first obtaining a certificate of
appealability.

28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

A

judge shall grant a certificate of appealability "only if the
applicant has made a substantial showing of the denial of a

27
28

21

1

constitutional right."

2

must indicate which issues satisfy this standard.

3

§ 2253(c)(3).

4

constitutional claims on the merits, the showing required to

5

satisfy § 2253(c) is straightforward: The petitioner must

6
7
8

28 U.S.C. § 2253(c)(2).

The certificate
28 U.S.C.

“Where a district court has rejected the

demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The Court finds that reasonable jurists would not find its
9

ruling on any of Petitioner’s claims debatable or wrong.
United States District Court
For the Northern District of California

10

Therefore, a certificate of appealability is denied.
11

Petitioner may not appeal the denial of a certificate of
12

appealability in this Court but may seek a certificate from the
13

Court of Appeals under Rule 22 of the Federal Rules of Appellate
14

Procedure.
15

See Rule 11(a) of the Rules Governing Section 2254

Cases.

16
17

CONCLUSION
Based on the foregoing, the Court orders as follows:

18

1. The petition for a writ of habeas corpus is denied.

19

2. The request for an evidentiary hearing is denied.

20
21

Doc.

no. 54.
3. The Clerk of the Court shall enter a separate judgment,

22

terminate all pending motions and close the file.

23

4. A certificate of appealability is denied.

24

IT IS SO ORDERED.

25

Dated: 8/1/2014

____________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

26
27
28

22