Young v. Superior Court Alameda County

Filing 53

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY (WITH CERTIFICATE OF SERVICE). After a careful review of the record and pertinent law, the Court concludes that the Petition for a Writ of Habeas Corpus must b e DENIED.Further, a Certificate of Appealability is DENIED. The Clerk shall terminate any pending motions, enter judgment in favor of Respondent, and close the file. Signed by Judge Edward J. Davila on 1/4/2016.(ecg, COURT STAFF) (Filed on 1/5/2016) Modified text on 1/5/2016 (ecg, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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BRIAN YOUNG,

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Petitioner,
v.

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RON BARNES, Warden,
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Respondent.
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No. C 14-03550 EJD (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner has filed a pro se petition for a writ of habeas corpus under 28

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U.S.C. § 2254 challenging his state conviction. Respondent filed an answer on the

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merits, and Petitioner filed a traverse. For the reasons set forth below, the Petition

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for a Writ of Habeas Corpus is DENIED.

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BACKGROUND
After a jury trial in Alameda County Superior Court, Petitioner was found

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guilty of rape, second degree robbery, false imprisonment, and evading a peace

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officer. Petitioner also admitted to a prior serious felony strike conviction. On June

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27, 2012, Petitioner was sentenced to twenty-three years and eight months in state

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prison. (Ans. at 1, Docket No. 37-1.)
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Petitioner appealed his conviction, and the state appellate court affirmed. (Id.
at 5.) The state high court denied review. (Id.)
Petitioner filed the instant federal habeas petition on August 8, 2014.

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The California Court of Appeal summarized the facts as follows:
Jane Doe
At approximately 10:00 p.m. on July 27, 2011, Jane Doe and
her friend Asheia Clemon went to a bar in Oakland called Apartment
C. Doe lived in Sacramento but had been staying with a friend while
she was visiting Oakland. That night, Doe was planning on staying
at her ex-boyfriend’s place before returning to Sacramento the
following day.

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FACTUAL BACKGROUND

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After the two women had been at the bar for a little while,
they went outside to smoke a cigarette. They were talking about a
book Clemon was reading when defendant, whom neither had met
before, joined in their conversation, surprising them both by
knowing about the book. Doe found defendant physically attractive,
and when he asked for her phone number, she gave it to him. He
called her cell phone, which showed an incoming call from “Dontay
Masters.” The three conversed for about 15 minutes before Clemon
and Doe went back inside the bar.

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Doe went outside another time, where she again encountered
defendant. They engaged in further conversation, agreeing to get
together sometime in the future. According to Doe, defendant was
“very flirty” during their interactions.
As the evening progressed, it became too late for Doe to stay
at her ex-boyfriend’s place, so she made arrangements to stay with
Clemon. By closing time, Doe had lost track of Clemon, so she
called her on her cell phone and learned that Clemon was not in the
bar. Defendant offered to walk Doe to her car, and she accepted. As
they arrived at her car, Clemon showed up. The two women began
arguing because Clemon was going to entertain male company at her
place and no longer wanted Doe to stay overnight. Doe decided to
drive back to Sacramento that night, so she got in her car and drove
away.

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After driving a short distance, Doe stopped at a gas station
and got out her laptop so she could charge her cell phone. While at
the gas station, she called Clemon, but never got in touch with her.
Around the same time, she received a call from defendant, who told
her Clemon was walking in an unsafe neighborhood and her phone
battery had died. Because Doe wanted to find Clemon, she agreed to
pick up defendant, who was on 88th Avenue, so he could help her
find friend. Defendant directed her to where he was, and after
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getting slightly lost, she found him in about 15 minutes. She pulled
over to let him in, moving into the passenger seat so he could drive.
Doe[] testified that “he seemed like he was very nice, he was going
to help me find my drunk friend who I knew was drunk and he knew
was drunk and he made a comment about it, her not being safe to be
over there. That showed to me he was concerned some kind of
way....”
Rather than driving off, however, defendant pulled forward
about 10 feet, stopping behind a burgundy van that was parked on
the side of the road. Taking Doe’s car keys with him, defendant
walked up to the van (purportedly to get some marijuana that he and
Doe were going to smoke) and opened one of the double doors on
the passenger side. While defendant was at the van, Doe finally got
in touch with Clemon, telling her she was with defendant and they
were going to smoke some marijuana.

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Defendant returned to Doe’s car, telling her, “I want to talk to
you.” He opened her car door, again calmly telling her he wanted to
talk. Defendant then “snapped,” forcefully grabbing Doe with both
hands – first her shirt, then her neck – and “snatched” her out of the
car. His demeanor became very aggressive, his voice threatening,
and he dragged her to the van. He threw her inside, climbed in
behind her, and locked the door.

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Doe was very shocked but was trying to remain calm, not
screaming because she was afraid defendant was going to kill her.
He was very agitated and threatened to beat her up several times. He
also pulled a gun part way out from underneath one of the seats,
telling her it had recently been used to commit a murder.

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At some point, defendant calmed down, so Doe started asking
him questions – about his family, his upbringing, his children – to try
to keep him calm. She asked if she could have a cigarette, hoping
defendant would let her get cigarettes out of her car, but he refused.
Defendant asked if she had ever been punched in the face. When she
responded, “No,” he acted as if he were about to punch her, laughing
when she flinched. At another point, he reached over and choked
Doe “real hard,” telling her “he could kill [her] right here and [she
would] just be another dead body.”

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Eventually, defendant began grabbing Doe, kissing her a
couple of times and putting his hand inside her shirt to grab her
breasts. It became apparent he intended to have sex with her, and
she tried pushing him off, but he continued to grab her. As she
resisted, defendant was getting angrier, pulling at her pants and
ripping a hole in them. Doe eventually gave in, removing one of her
boots and pant legs. As she testified at trial, “He had be back there
for a number of hours. I was scared the whole time because I was
getting more like if he would just take what he want, he would leave
me alone and not beat me up.”
Doe repeatedly told defendant “he didn’t have to do this,” but
he nevertheless climbed on top of her. She did not want to have sex
with him, but she was ultimately resigned to it happening so she
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decided she was “just going to give him what he wants so he [would]
leave [her] alone.” She asked him to use a condom, taking one out
of her purse, but he refused. Defendant then vaginally penetrated
her, having difficulty at first because Doe was menstruating at the
time and was wearing a tampon. After a few minutes, defendant
ejaculated inside of her.

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After defendant raped Doe, he picked up her purse and
emptied out its contents. He took her phone and wallet, removing
her I.D. from the wallet and threatening to come find her if he
needed to. He also took jewelry she was wearing. Defendant then
left the van, got into Doe’s car, and drove off.

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Doe got out of the van and ran down the street until she
eventually found someone who would help her. She was driven to a
nearby police station, where she reported that she had been raped.
When she was describing what happened, she told the officer that the
assailant had pulled a gun on her at the gas station, grabbed her, and
taken her to a van where he sexually assaulted her. Doe, who had a
criminal record herself, told this false story because she was worried
the police would not believe she had been raped if she told them she
willingly drove with defendant to the location where the assault
occurred. As she explained at trial, “I just didn’t want anyone to
think that I wanted what happened to me.”

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The police drove Doe back to the location of the van, which
was still there. She was then transported to the hospital, where she
underwent a lengthy sexual assault examination. When she disrobed
for the exam, she was still wearing the tampon that had been in place
when defendant raped her. After the exam, she called Clemon, who
came and picked her up. Doe later returned to Sacramento.
Two days later, in the early morning hours, an Oakland police
officer was on patrol when he spotted Doe’s car parked in an East
Oakland neighborhood. He observed the car from a distance, and
about an hour later, defendant approached it, got in, and started the
engine, before turning the engine off, getting out, and walking down
the street. Two minutes later, he returned to the car, this time driving
off.
The officer began a pursuit, with other units joining in. He
attempted to make a traffic stop by obstructing defendant’s route
with his police car, but defendant was able to get around his car,
fleeing towards San Leandro. After a high speed chase, defendant
collided with a police car, finally coming to a stop when he crashed
into a parked car and a house. Following a struggle, defendant was
eventually subdued and placed under arrest. Doe’s car, which was
totaled, was taken to a tow yard.

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A few days later, detectives came to see Doe at her home in
Sacramento. She repeated her story that defendant had abducted her
from the gas station, again telling this version because she did not
want to give the police a reason not to take her seriously. The
detectives told her they had found her car and had a suspect in
custody. Shown a photo lineup, Doe identified defendant as the man
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who raped her.

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Doe traveled to the tow yard where her car was being held.
[FN3] She saw her car but was not permitted to touch anything in it.
Instead, her personal belongings were put in a bag and brought to
her. She got most of her possessions back, including her wallet and
cell phone, but her laptop and jewelry were missing. Defendant’s
cell phone was also among the items given to her. The car was
destroyed.

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FN3. Doe was apparently not the registered owner of the car
at the time of the assault. After the assault, the owner
transferred title to her, which enabled her to regain her
possessions at the tow yard.

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In August, as Doe prepared to testify at defendant’s
preliminary hearing, she told the prosecutor the truth about how she
ended up with defendant. She did so because the prosecutor told her
to be truthful and “now that he had been caught it was serious and
[she] didn’t want to lie on the stand....”

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At trial, defense counsel elicited the following inconsistencies
in Doe’s story:
Doe told the police on the morning of the sexual assault, the
nurse at the hospital, and the detectives who came to interview her in
Sacramento that she had been carjacked by defendant at a gas
station.

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At the preliminary hearing, Doe testified that defendant orally
copulated her, but she testified at trial and told the nurse who
performed the examination that there was no oral sex.

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Doe told the nurse during the examination that defendant had
a gun in the van but she never saw it. At trial, Doe testified that
defendant pulled a gun partially out from underneath a seat and she
saw its black grip.
Robin Doe
On November 16, 2000, Robin Doe drove a friend to a liquor
store in Oakland. Once at the store, she remained in the car while
her friend went inside. As she was waiting, defendant, whom she
had never seen before, walked up to the car, opened the door, got in,
and ordered her to drive off, threatening that he had a gun.
Defendant allowed Robin to make a stop at her brother’s house,
telling her that if she made one mistake, he would kill her and her
brother. Once there, Robin hoped to give her brother a clue as to
what was going on, but he did not pick up on her hints. After Robin
used the restroom, she and defendant left, and he directed her to
drive to a dark location where he raped her. During the ordeal,
defendant “was talking crazy out of his head, saying all kind of
things,” at one point saying he “hate[d] bitches” and at another
threatening to kill her and blow her head off. Defendant drove them
to another location where he sexually assaulted her again. Robin
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was finally able to jump out of the car and run off, and defendant
drove away in her car.

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Elizabeth Doe
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On the night of January 15, 2004, Elizabeth Doe, who lived in
Sacramento, stopped at liquor store on her way home from work.
Defendant was outside the store and followed her in. As she exited
the store after making a purchase, defendant continued to follow her,
asking if she wanted to buy some marijuana. She declined because
she already had some at home. Defendant told her he was selling it
so he could get to Oakland to see his children and asked if she could
give him a ride down the street. She agreed, driving him to the area
where he wanted to be dropped off and pulling over to let him out.
Rather than getting out, however, defendant made a reference to
Elizabeth’s supposed “baby daddy” – Jaray or Dray – having killed
one of his friends. She told him he must have her mixed up with
someone else because that was not the name of her children’s father.
He then said he was going to kill her, ordered her into the back seat,
and drove to a different location. After pulling over, defendant told
her he was going to rape her. As he tried to climb into the back seat,
Elizabeth was able to open one of the car doors and escape. As she
ran off, defendant grabbed her, tearing her shirt off. Defendant
drove away in her car, and she was able to locate someone to help
her. Her car was recovered as week later “in two pieces.”

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As best as Elizabeth could recall at trial, defendant was
convicted of grand theft auto.

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(Ans. Ex. C at 2-7.)

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DISCUSSION
I.

Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a

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person in custody pursuant to the judgment of a State court only on the ground that

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he is in custody in violation of the Constitution or laws or treaties of the United

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States.” 28 U.S.C. § 2254(a). The writ may not be granted with respect to any

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claim that was adjudicated on the merits in state court unless the state court’s

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision

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that was based on an unreasonable determination of the facts in light of the evidence
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presented in the State court proceeding.” 28 U.S.C. § 2254(d).
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if

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the state court arrives at a conclusion opposite to that reached by [the Supreme]

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Court on a question of law or if the state court decides a case differently than [the]

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Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529

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U.S. 362, 412-13 (2000). The only definitive source of clearly established federal

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law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the

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Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412;

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Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be
“persuasive authority” for purposes of determining whether a state court decision is

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an unreasonable application of Supreme Court precedent, only the Supreme Court’s

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holdings are binding on the state courts and only those holdings need be

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“reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled

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on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

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“Under the ‘unreasonable application’ clause, a federal habeas court may

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grant the writ if the state court identifies the correct governing legal principle from

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[the Supreme Court’s] decisions but unreasonably applies that principle to the facts

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of the prisoner’s case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)’s

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‘unreasonable application’ clause, . . . a federal habeas court may not issue the writ

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simply because that court concludes in its independent judgment that the relevant

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state-court decision applied clearly established federal law erroneously or

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incorrectly.” Id. at 411. A federal habeas court making the “unreasonable

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application” inquiry should ask whether the state court’s application of clearly

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established federal law was “objectively unreasonable.” Id. at 409. The federal

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habeas court must presume correct any determination of a factual issue made by a

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state court unless the petitioner rebuts the presumption of correctness by clear and

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convincing evidence. 28 U.S.C. § 2254(e)(1).

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The Supreme Court has vigorously and repeatedly affirmed that under
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AEDPA, there is a heightened level of deference a federal habeas court must give to

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state court decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam);

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Harrington v. Richter, 131 S. Ct. 770, 783-85 (2011); Felkner v. Jackson, 131 S. Ct.

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1305 (2011) (per curiam). As the Court explained: “[o]n federal habeas review,

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AEDPA ‘imposes a highly deferential standard for evaluating state-court rulings’

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and ‘demands that state-court decisions be given the benefit of the doubt.’” Id. at

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1307 (citation omitted). With these principles in mind regarding the standard and

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limited scope of review in which this Court may engage in federal habeas

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proceedings, the Court addresses Petitioner’s claims.

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II.

Claims and Analysis
Petitioner claims the following grounds for federal habeas relief: (1) the trial

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court denied his right to self-representation; (2) the trial court allowed the

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destruction of exculpatory evidence without allowing Petitioner prior access; and (3)

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the trial court improperly admitted evidence of prior bad acts.

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A.

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Petitioner claims that he was denied his right to represent himself as the trial

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Right to Self-Representation

judge did not appropriately rule on his Faretta motion.

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The California Court of Appeal set forth the following background:

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On August 2, 2011, defendant was arraigned on rape and
other charges. At the arraignment, he advised the court that he
wanted to represent himself. The court granted his Faretta request.
Defendant also declined to waive time.

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Following a preliminary hearing, defendant was charged with
the following six counts: (1) forcible rape (§ 261, subd. (a)(2)) with a
sex offense and kidnapping enhancement (§ 667.61, subd. (d)(2));
(2) forcible oral copulation (§ 288a, subd. (c)(2)(A)); (3) second
degree robbery (§ 211); (4) kidnapping to commit another crime (§
209, subd. (b)(1)); (5) evading a peace officer (Veh. Code, § 2800.2,
subd. (a)); and (6) assaulting a peace officer (§ 245, subd. (c)). It
was also alleged that defendant had a prior serious felony strike
conviction (§§ 667, subd. (a)/ 1170.12, subd. (c)(2)), three prior
prison terms (§ 667.5, subd. (b)), and a conviction for possession of a
controlled substance for which he received felony probation.

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On October 12, the court heard defendant’s motion to dismiss
the information. It granted the motion as to count 2 (forced oral
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copulation) and denied it as to the remaining counts. [FN4] The case
was then continued to October 24 for a jury trial.

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FN4. The district attorney subsequently filed an amended
information that eliminated the forced oral copulation count.
On October 24, the matter was sent out for trial. The court
began the session by confirming with defendant that the had been
representing himself and wished to continue to do so. After the court
advised defendant of the serious nature of the charges against him
and the potential exposure he was facing, and encouraged him to
speak to a public defender, defendant confirmed that he wished to
continue in pro per. Defendant executed another Faretta waiver, and
proceeded under self-representation. He did, however, agree to have
advisory counsel appointed.
Discussion ensued about various pretrial matters, including
defendant’s clothing for trial. Defendant told the court about an
argument he had with his family over his clothing, stating: “I feel
like I haven’t had a fair – I’m not going to have a fair trial anyway,
so I told them that I would rather just don’t even wear no clothes.... I
just received exculpatory material for my defendant, and I have not
been able to been provided an investigator. So I already feel that I’m
in a no-win situation.”

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The court responded: “All right. What you’re saying is going
to compel me to withdraw your Faretta. If that is the way you feel,
then I’m considering withdrawing your Faretta, ability to represent
yourself and I’m referring you to the public defender. You cannot
go into this process with that attitude, Mr. Young. Simply not, not
good for you. Not good for the system. If you feel that you’re being
railroaded, if you feel that you have exculpatory information, you
would need more time to look into that. And you should have a
lawyer looking into these records now.” The court advised
defendant to pull his no time waiver and consult with a lawyer.
After considerable back and forth on this, the court continued the
matter to the following morning, advising defendant that if he had
not made any changes to his status, they would proceed with a jury
trial. If, on the other hand, he waived time, the trial could be
continued.

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The following morning, defendant withdrew his no time
waiver, and the court appointed an investigator to assist him. The
matter was then continued to allow defendant’s investigator time to
prepare.
On January 26, 2012, the court heard motions in limine. It
also heard lengthy argument on a motion of defendant to exclude
evidence due to the police failure to preserve Doe’s car, the van, and
defendant’s cell phone. The court denied the motion, after which
this exchange occurred:
“THE DEFENDANT: [M]y last request is, since I’m not
going to be given a fair trial, I just ask that my presence through the
whole trial be waived.
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“THE COURT: No, you have to be here. You have to be
here.

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“THE DEFENDANT: I’m going to say I’m not going to show
up because I’m not receiving a fair trial.

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“THE COURT: You are receiving as fair a trial as everybody.

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“THE DEFENDANT: Because the Supreme Courts –

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“THE COURT: No. What happens is the trial court rules on
what they see and looks at the Supreme Court rulings. And just
because the Supreme Court says it, it may or may not apply to that
particular situation. So in this situation the Court has made a ruling.
[¶] And you have to come in. You wanted to be in this situation and
so you have to come in and represent yourself. That’s the only way
this is going to get taken care of.

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“THE DEFENDANT: I would like to waive. I want to tell the
officers I don’t want to come in here. I will come to court but since I
see that the Court’s –
“THE COURT: That doesn’t make any sense. It doesn’t
make any sense. You can just be here.

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“THE DEFENDANT: I see that the Court is setting it up
against me to be found guilty.

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“THE COURT: The court’s not setting up anything against
you.

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“THE DEFENDANT: All the Supreme Court, even the 14th
Amendment is being denied me. [¶]...[¶]... And like I said, I would
just like to waive my appearance and have nothing else to do with
the trial.

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“THE COURT: You cannot waive your appearance.

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“THE DEFENDANT: I don’t have no more responses to
anything that has to do with the trial.

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“THE COURT: Well, but you have to be here. You do
whatever you please. If you want to represent yourself, then we
want you to represent yourself. And I’m helping you as best I can.
I’m not doing a lot, but I’m helping, trying to guide you and help so
that things aren’t too bad here.”

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In light of defendant’s statements, the prosecutor requested
the appointment of standby counsel, and the court acknowledged it
as a reasonable request, stating, “We may need standby. It appeared
to me this morning that Mr. Young was quite capable of handling the
case and he was very articulate and doing everything he needed to
do.” The dialogue then continued:
“THE DEFENDANT: I would like to have standby because
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I’m refusing to come into court.

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“THE COURT: Every time something doesn’t go your way as
an attorney or representing yourself, every time someone rules
against you or what you think it should be, you can’t just say, okay,
I’m going to take my papers and go home and not show up. You
can’t do that.

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“THE DEFENDANT: I’m just saying I understand that you’re
more favorable with the district attorney.

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“THE COURT: I’m not in favor. I’m just trying to follow the
law. [¶]...[¶] So sometimes you may not know all of the intricacies
of these cases. And I’m sure everyone looks at the cases and sees
that in the light that’s best for them, which I don’t fault you for doing
that. That’s very lawyer-like for doing that. [¶] So what we’ll do is
maybe we should call court-appointed and have someone here
Monday morning as a standby but make it clear that we’ve started
the process.”
The discussion turned to the issue of defendant’s clothes, with
the court asking defendant if his family brought his clothes. This
exchange then occurred:
“THE DEFENDANT: They was going to bring it Monday but
I’m going to let them know I’m not getting a fair trial so I’m not
dressing out. I’ll just stay in my regular clothes.
“THE COURT: That’s not a good idea.
“THE DEFENDANT: I mean I don’t want to front in front of
the jury like I’m getting a fair trial when I’m getting railroaded.

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“THE COURT: You’re not getting railroaded. All right.
However you want to do it, but we’ll put it on the record that if you
decided Monday not to dress out.” The matter was then continued to
January 30 for trial.
On January 30, the court began by expressing concern over
defendant’s comments at the prior session, inquiring whether he
planned to continue representing himself. Defendant responded
affirmatively, also advising that he intended to remain silent
throughout the trial, not making an opening statement or closing
argument or cross-examining any witnesses. And he confirmed that
he intended to wear his jail clothing rather than street clothes.
There followed extensive back-and-forth about whether
defendant was being treated fairly, defendant insisting that he was
being railroaded and the court insisting that he was being treated the
same as the prosecutor and all other defendants. When defendant
maintained his position that he wanted to represent himself, the court
responded, “Well, you can if you represent yourself. You can
continue if you’re going to represent yourself. But if you’re going to
sit in here and not ask any questions and not participate, I can’t let
that – that would be a travesty of justice, and I don’t feel that would
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Back on the record after that meeting, defendant consented to
representation. In order to afford his attorney time to prepare for
trial, defendant withdrew his no time waiver. The prosecutor lodged
an objection that in requesting representation on the eve of trial,
which would likely necessitate a continuance, defendant was “simply
stalling, delaying, and frankly playing games with the procedure at
this point.” The matter was continued to March 26 to afford
defendant’s counsel [time] to prepare for trial.

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be right, so I’m trying to uphold your equal protection of the laws.”
The court then gave defendant a choice: “We’re here for you to get a
fair trial. And that’s what I am trying to assure of now. I’m not
going to sit here and let you just sit here in that little, well, you can
there in the yellow suit but someone’s going to represent you. Either
you’re going to represent yourself or I’m going to refer you to the
public defender’s office. If they can represent you, they will
represent you. If they can’t represent you, then we will send it out to
court-appointed. And we will not get started and we won’t be able to
do this case in the time constraints that we were talking about right
now.” Defendant ultimately agreed to meet with a public defender.

12
13
14
15

At the March 26 hearing, defendant’s counsel informed the
court that defendant wanted to withdraw his time waiver. The court
advised defendant against it, telling him that the court and the
prosecution were ready to commence trial, but that his counsel
needed time to make sure she was prepared. Defendant relented, and
the matter was continued to April 11.

18

On April 11, the court and counsel discussed numerous
scheduling matters, and the matter was continued to April 16. What
happened at the hearing will be described in detail below but, in
short, defendant’s counsel advised the court that defendant wished to
represent himself. After the court confirmed that what defendant in
fact wanted was a new attorney, the court held a Marsden [FN5]
hearing and denied defendant’s request for new counsel.

19

FN5. People v. Marsden (1970) 2Cal.3d 118 (Marsden).

20

Jury selection commenced on April 18, and a jury was seated
on April 25. Testimony was heard over the course of five days.
After just over two days of deliberations, the jury found defendant
guilty of forcible rape (without the kidnapping enhancement), second
degree robbery, false imprisonment (lesser included offense of
kidnapping to commit another crime), and evading a peace officer. It
was unable to reach a verdict on the charge of assaulting a peace
officer, and a mistrial was declared on that count. Defendant
admitted the prior convictions, and the court found them to be true.

16
17

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On June 27, the matter came on for sentencing. Defendant
began by making another Marsden motion, which the court denied.
He then stated that he would rather exercise his right to selfrepresentation than be represented by the public defendant, and the
court granted his request to continue in pro per. Defendant then
requested the appointment of a new attorney to look over his claims
of ineffective assistance of counsel. The court denied that request, as
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1
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well as his motion for new trial.
(Ans. Ex. C at 8-13.)

3

The state appellate court next reviewed the exchange that occurred at the

4

outset of the April 16 hearing, when Petitioner’s attorney advised the court that

5

Petitioner wished to invoke his right to self-representation:

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“THE COURT: I’m not going through this again. I’m not
going through this again. This is just like game playing, Mr. Young,
because when we started out, you were representing yourself. You
get upset every time something doesn’t go your way, then you say
you want to be represented by an attorney. [¶] We’re in the middle of
trial now. That’s it. I’m not going to deal with you as a pro per any
more. It’s just too much. It’s just too difficult. You change your
mind every time things don’t go your way. It’s one thing. You want
to do it. Next minute you don’t want to do it. And it’s all a delay
tactic. No.

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15

“THE DEFENDANT: Your Honor, I’m not going to delay.
I’m ready for trial right now.
“THE COURT: I don’t mean that. I mean all of this. Now
we have Ms. McNamara [defendant’s counsel]. We’ve waited all
this time while you were saying you wanted to be represented by the
public defender’s office. You said that’s what you wanted to do.
You got mad the minute I ruled against you. [¶] Now what’s the
problem?

16
17

“THE DEFENDANT: Well, I don’t want to argue the matter
in front of the district attorney. That’s why I don’t want to be
represented by my attorney.

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19

“THE COURT: You want a Marsden motion, is that what you
want, or you want to go pro per

20

“THE DEFENDANT: A Marsden motion.

21

“THE COURT: All right...”

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26

The court then held a hearing on defendant’s Marden request,
which it denied. It then went on to rule on pending motions in
limine. The hearing concluded with this exchange:
“THE COURT: The only other thing is on the issue of, the
pro per issue, just for the record, Mr. Young, the reason that you
were wanting to go pro per is that you had some issues with your
attorney; is that correct, the issues that we had previously discussed
in the Marsden motion?

27

“THE DEFENDANT: Yes.

28

“THE COURT: All right. And at this juncture are you
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comfortable with your attorney?
“THE DEFENDANT: No.
“THE COURT: All right. Well, at this juncture the Court,
based on him wanting to represent himself because he didn’t like the
way the attorney was presenting the case, but the Court made a
ruling that the Marsden was denied in that situation. [¶] So in terms
of the pro per, the Court has made the inquiry. And the Court has
denied this pro per status because I think, No, it was confused with
the Marsden issue but it was also something that we had dealt with
previously, and that’s quite untimely.” [FN6]

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8
9

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FN6. Defendant unsuccessfully renewed his Marsden motion
on April 26 and May 1, 8, and 9.
(Ans. Ex. C at 14-15.)
The California Court of Appeal then denied the claim under the relevant law:
The Law
The law governing a criminal defendant’s right to selfrepresentation is well established. As our Supreme Court has
summarized it: “A criminal defendant has a right to represent himself
at trial under the Sixth Amendment of the United States Constitution.
[Citations.] A trial court must grant a defendant’s request for selfrepresentation if three conditions are met. First, the defendant must
be mentally competent, and must make his request knowingly and
intelligently, having been apprised of the dangers of selfrepresentation. [Citations.] Second, he must make his request
unequivocally. [Citations.] Third, he must make his request within a
reasonable time before trial. [Citations.] Faretta error is reversible
per se. [Citations.]” (People v. Welch (1999) 20Cal.4th 701, 729; see
also Faretta, supra, 422 U.S. 806, 835.)
It has been said that in evaluating defendant’s request for selfrepresentation, the court applies a “stringent standard” for judging
the adequacy of the defendant’s invocation of the right because of
the strong presumption against waiver of the right to counsel.
(United States v. Weisz (D.C. Cir. 1983) 718 F.2d 413, 425-426.)
“[T]he court should draw reasonable inference against waiver of the
right to counsel.” (People v. Marshall (1997) 15 Cal.4th 1, 23
(Marshall); see also Brewer v. Williams (1977) 430 U.S. 387, 404
[“courts indulge in every reasonable presumption against waiver” of
the post arraignment right to counsel].) “Unlike the right to
representation by counsel, ‘“[T]he right of self-representation is
waived unless defendants articulately and unmistakably demand to
proceed pro se.”’ [Citation].” (People v. Dent (2003) 30 Cal.4th 213,
218.)

26
27

Defendant’s Request to Proceed In Pro Per Was
Equivocal

28

Defendant contends that he unequivocally asserted his right to
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self-representation at the outset of the hearing on pretrial motions.
He is correct that the hearing commenced with defense counsel’s
declaration that defendant wanted to proceed without an attorney.
But that does not end the inquiry. As our Supreme Court stated in
Marshall, supra, 15 Cal.4th at pp. 25-26, “[T]he court’s duty goes
beyond determining that some of defendant’s words amount to a
motion for self-representation. The court should evaluate all of a
defendant’s words and conduct to decide whether he or she truly
wishes to give up the right to counsel and represent himself or
herself and unequivocally has made that clear.” Given defendant’s
words and conduct here – most significantly, his confirmation that
what he actually wanted was a Marsden hearing – it cannot be said
that he expressed a clear and unambiguous desire to represent
himself. (See id. at p. 25 [“When we examine the record of the
hearing at which defendant assertedly invoked his right of selfrepresentation, we conclude that the request was ambivalent in the
context of that hearing and also was made to delay and disrupt the
proceedings.”].)

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22

Defendant counters that the fact he indicated he wanted a
Marsden hearing did not negate what was initially an unequivocal
Faretta request. It is true that a conditional Faretta request – such
as, “if I can’t have a new attorney, I want to represent myself”– can
constitute an unequivocal Faretta request. (See, e.g., People v
Michaels (2002) 28 Cal.4th 486, 524; United States v. Hernandez
(2000) 203 F.3d 614, 621-622, overruled on other grounds in United
States v. Ferguson (9th Cir. 2009) 560 F.3d 1060, 1068, fn. 4.) But
that is not what happened here. After the court inquired if defendant
was moving to relieve his counsel or to represent himself, he
answered only that he wanted a Marsden hearing. He did not
indicate that if his Marsden request was denied, then he wanted to
proceed pro per. Likewise, after the court denied his Marsden
request, defendant did not then express a desire to proceed in pro per.
Additionally, as the court noted in Marshall, supra, 15
Cal.4th at pp. 21-22, several courts have held that a Faretta motion
made on a whim or out of frustration is not unequivocal. (See id. at
pp. 21-22 and cases therein collected.) That was the situation here.
Defendant believed his attorney was neither communicating with
him nor conducting an adequate investigation. He felt she had a
closer relationship with the district attorney than she did with him.
Defendant was clearly frustrated with her, and the record suggests
that defendant’s desire to proceed in pro per was borne out of that
frustration.

23
24
25
26
27

Further undermining defendant’s claim is the fact that he
knew how to make an unequivocal Faretta request when he intended
to do so, as he did on two other occasions. And he clearly knew the
difference between a Faretta motion and a Marsden motion, as he
made six separate Marsden motions over the course of the
proceeding. Indeed, after the denial of his June 27 Marsden motion,
defendant then made a Faretta motion, which the court granted. He
could have done the same on April 16, should he have wished to
proceed in pro per. He did not.

28
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Finally, defendant suggests that the court treated him in such
a manner as to convey to him that a further Faretta request would
have been futile. (See, e.g., People v. Dent, supra, 30 Cal.4th at p.
219 [trial court’s instruction not to speak coupled with its categorical
denial of the Faretta request “may well have convinced defendant
the self-representation option was simply unavailable, and making
the request against would be futile.”]; United States v. Hernandez,
supra, 203 F.3d at p. 622 [trial court’s “impatient resistance”
towards defendant’s Faretta request suggested that further requests
were futile].) As defendant explains it, “Here, the trial court had
threatened to have appellant shackled if he acted out, which the court
seemed to consider to have occurred based on the Faretta request
and the Marsden hearing, although appellant was not disruptive nor
disrespectful. It is not surprising that appellant would consider any
further requests to represent himself at that juncture to be both futile
and to be met with resistance and anger from the court.” The court
did indeed advise defendant that he would be shackled if he acted up
but, as evidenced by the following colloquy, it was not because it
believed he acted up by making a Faretta or Marsden request:
“THE COURT: Marsden motion is denied.

12

“THE DEFENDANT: Can I just leave?

13

“THE COURT: No. And if you act up, we’re going to have
you shackled in here. Okay?

14
“THE DEFENDANT: What’s that going to do, shackle me?
15
16

“THE COURT: Keep you here. I’m not going to have any
problems. Okay?

17

“THE DEFENDANT: I’m saying you want to shackle me like
a dog by saying I’m not going to be here.

18
19
20

“THE COURT: I’m not going to do it unless you do
something to indicate I need to do it. I’m just letting you know this,
because I don’t want you in front of the jury behaving a certain way.
I don’t want the jury to think badly of you. I want you to be
dressed.”

21
22
23
24
25
26

Clearly, the comment concerning shackling defendant was
directed at maintaining his presence at trial. Nothing suggests it was
made in retaliation for his Faretta or Marsden motion. And a review
of the record reveals no other conduct by the court that could
reasonably be construed as having dissuaded defendant from making
a further Faretta request.
Because we have concluded that defendant’s Faretta request
was equivocal – and thus did not satisfy one of the three criteria for
granting it – we need not consider whether his requests satisfied the
remaining requirements.

27
28

(Ans. Ex. C at 15-19.)
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1

A criminal defendant has a Sixth Amendment right to self-representation.

2

Faretta v. California, 422 U.S. 806, 832 (1975). But a defendant’s decision to

3

represent himself and waive the right to counsel must be unequivocal, knowing and

4

intelligent, timely, and not for purposes of securing delay. Id. at 835; United States

5

v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994); Adams v. Carroll, 875 F.2d 1441, 1444 &

6

n.3 (9th Cir. 1989).

7

Here, the state appellate court’s decision denying Petitioner’s claim was

8

based on the lack of the first Faretta requirement – that the decision be unequivocal.

9

422 U.S. at 832 ; see also Meeks v. Craven, 482 F.2d 465, 466-68 (9th Cir. 1973);
accord Armant v. Marquez, 772 F.2d 552 (9th Cir. 1985). The requirement of

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unequivocality serves two purposes: it ensures that the defendant does not

12

inadvertently waive his right to counsel, Meeks, 482 F.2d at 467, and also prevents

13

the defendant from taking advantage of the mutual exclusivity of the rights to

14

counsel and self-representation, Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.

15

1989). If a defendant equivocates, he is presumed to have requested the assistance

16

of counsel. Id.; see also United States v. Bennett, 539 F.2d 45, 49-51 (10th Cir.)

17

(defendant who unquestionably vacillated between representation by counsel and

18

self-representation until 6 days before trial forfeited right to self-representation);

19

United States v. Oakey, 853 F.2d 551, 552-54 (7th Cir. 1988) (defendant’s request

20

for self-representation with co-counsel found equivocal because no right to such

21

“hybrid” representation; request to proceed pro se properly denied). The court

22

considers “three factors to determine whether a request for self-representation is

23

unequivocal: the timing of a request, the manner in which the request was made, and

24

whether the defendant repeatedly made the request.” Stenson v. Lambert, 504 F.3d

25

873, 882 (9th Cir. 2007).

26

The record supports the state appellate court’s conclusion that Petitioner’s

27

request for self-representation was not unequivocal. Although the hearing on April

28

16 began with defense counsel advising the court that Petitioner wanted to represent
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Marsden motion. See supra at 13. Petitioner never indicated that if his Marsden

3

motion was denied, he wanted to proceed “pro per.” Id. Even after the Marsden

4

motion was denied and Petitioner continued to express dissatisfaction with his

5

counsel, he did not clearly state that he wished to proceed self-represented. Id. at 14.

6

The state appellate court was not unreasonable in finding that Petitioner’s discontent

7

was borne out of frustration with counsel whom he believed was not communicating

8

with him or conducting an adequate investigation and had a “closer relationship”

9

with the district attorney than with him. Id. at 15. Accordingly, it cannot be said

10

that Petitioner was clearly stating a desire to waive counsel and proceed pro per

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For the Northern District of California

himself, the trial judge clarified with Petitioner that what he really wanted was a

2

United States District Court

1

rather than merely expressing that frustration. Lastly, Petitioner was certainly aware

12

of how to make an unequivocal Faretta motion as the state appellate court observed

13

that Petitioner had done so on two other occasions. Id. The state appellate court also

14

reasonably concluded that Petitioner knew the difference between a Faretta motion

15

and a Marsden motion as he had made six separate Marsden motions over the course

16

of the proceeding. Id. at 15-16.

17

As to Petitioner’s argument that any further Faretta motion would have been

18

futile, the state appellate court reasonably found it had no merit based on their

19

review of the record. See supra at 16. The state court found that the comment

20

regarding shackling “was directed at maintaining [Petitioner’s] presence at trial.” Id.

21

Petitioner had repeatedly requested not to be present at trial and again expressed a

22

desire to leave the proceeding, so the trial court responded with a warning of what

23

would happen if he “act[ed] up.” Id. There was no suggestion that shackles would

24

be imposed in retaliation for any future Faretta motion. In fact, Petitioner made

25

other Marsden motions and another Faretta motion which was granted on June 27.

26

Id. Based on his actions, it cannot be said that Petitioner actually believed that

27

future motions would be futile.

28

Based on the foregoing, it cannot be said that the state court’s rejection of this
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1

claim was an unreasonable application of, or contrary to, Supreme Court precedent

2

or based on an unreasonable determination of the facts in light of the evidence

3

presented in the State court proceeding. 28 U.S.C. § 2254(d). Petitioner is not

4

entitled to habeas relief on this claim.

5

B.

Destruction of Evidence

6

Petitioner’s second claim is that the trial court allowed the destruction of

which “could have assisted in [his] defense or allowed [him] a fair trial.” (Pet. at 3.)

9

Specifically, Petitioner claims that his cell phone, which was found in the alleged

10

victim’s car, had exculpatory value and that it was intentionally lost by the police

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For the Northern District of California

exculpatory evidence without allowing him prior access to inspect or review it

8

United States District Court

7

when they released it to the victim. (Id., Ex. A at 1-2.) Petitioner also claims that

12

the police failed to preserve Doe’s car and the van, both of which had exculpatory

13

value.

14
15
16
17
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19
20

The state appellate court found no error:
Background
Defendant’s cell phone was in Doe’s car at the time of
defendant’s arrest, and was inadvertently turned over to Doe when
she claimed her personal belonging at the tow yard. At some point,
Doe informed the prosecutor she had defendant’s phone, but when
the prosecutor later contacted her to ask for it back, she was unable
to find it. In a statement to a prosecution investigator, Doe explained
that she had lived in different locations after the incident, and when
she retrieved her property from storage, she could not locate the
phone. The prosecutor made repeated requests that she continue to
look for it, but the phone never surfaced.

21
22
23

Doe was not the registered owner of the car she was driving
the night of the incident. After the car was recovered, the owner
transferred title to Doe, who was then able to retrieve her belongings
from the car. The car was subsequently destroyed, and Doe received
the $500 value of the car when it was scrapped.

24
25
26
27
28

According to defendant, the police impounded the van. When
his brother, who apparently owned the van, went to retrieve it, the
police would not release it to him. Without further notice, the van
was later released to the tow lot and destroyed.
Defendant filed a motion to exclude evidence based on the
police department’s purported failure to preserve evidence in
violation of his due process rights under California v. Trombetta
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2

(1984) 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51.
The trial court denied defendant’s motion, finding he made no
showing that the evidence was exculpatory or that the police failed to
preserve the evidence in bad faith.

3
The Law
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“‘Law enforcement agencies have a duty, under the due
process clause of the Fourteenth Amendment, to preserve evidence
“that might be expected to play a significant role in the suspect’s
defense.” [Citations.] To fall within the scope of this duty, the
evidence “must both possess an exculpatory value that was apparent
before the evidence was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence by other
reasonably available means.” [Citations.] The state’s responsibility is
further limited when the defendant’s challenge is to “the failure of
the State to preserve evidentiary material of which no more can be
said than that it could have been subjected to tests, the results of
which might have exonerated the defendant.” [Citation.] In such
case, “unless a criminal defendant can show bad faith on the part of
the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.” [Citations.] [¶] ‘On
review, we must determine whether, viewing the evidence in the
light most favorable to the superior court’s finding, there was
substantial evidence to support its ruling.’” (People v. Carter (2005)
36 Cal.4th 1215, 1246; see also Arizona v. Youngblood, supra, 488
U.S. 51 at p. 56, fn. * [“[T]he presence or absence of bad faith by the
police for purposes of the Due Process Clause must necessarily turn
on the police’s knowledge of the exculpatory value of the evidence
at the time it was lost or destroyed.”]; California v. Trombetta,
supra, 467 U.S. at p. 489 [government violates a defendant’s right to
due process if unavailable evidence possessed “exculpatory value
that was apparent before the evidence was destroyed, and [is] of such
a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.”]; People v. Memro
(1995) 11 Cal.4th 786, 831 [defendant bears burden of showing bad
faith on the part of the police].)
Substantial Evidence Supports the Trial Court’s
Conclusion That the Evidence Was Not Destroyed in Bad
Faith
We can readily dispose of defendant’s contention that his
right to due process was violated by the police department’s willful
failure to preserve potentially exculpatory evidence. Defendant
presented no evidence demonstrating that the police had reason to
believe that the items in dispute had any exculpatory value, or that
they in fact held any potentially exculpatory value. As to the phone,
defendant alleges that the police “routinely check cell messages and
photographs on telephone [sic] and the failure to do this and/or the
failure to recognize the exculpatory nature of the evidence once
done, demonstrates bad faith participation in the destruction of this
phone.” This argument ignores the significant fact that the police
were not responsible for the loss of the phone, as it was inadvertently
given to Doe at the tow lot, and she then misplaced it. That fact
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1
2
3
4

aside, defendant does not identify what exculpatory material the
phone possessed, other than complaining that the phone records –
made available to defendant in lieu of the phone – “did not show the
contents of [text] messages or other items on the phone [and] he also
lost the email and pictures from this phone.” None of this suggests
that the police had any reason to believe that the phone contained
any potentially exculpatory evidence, nor that they destroyed it in
bad faith.

5
6
7
8

Defendant claims Doe’s car held exculpatory evidence
because Doe testified that she let defendant drive in part because of
the car’s mechanical problems when, in fact, the car did not have
mechanical problems. The sexual assault did not occur in the car,
and defendant made no showing that the police had reason to believe
Doe’s testimony regarding why she permitted defendant to drive her
car would be subject to dispute.

9

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12
13
14
15
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Finally, as to the van, defendant claims it possessed
potentially exculpatory evidence because pictures of the rear window
‘would have demonstrated that Jane Doe made an unreliable report
to the police officer when she said she had seen him drive away.”
The police retrieved, inventoried, and preserved the contents of the
van and took photographs of the vehicle. They thus attempted to
preserve everything of value in the van. They had no reason to
believe that the view out the rear window was in anyway relevant,
nor has defendant established that it was, and there was no evidence
that the police acted in bad faith in releasing the van to the tow yard.
(Ans. Ex. C at 23-25.)
The government has a duty to preserve material evidence, i.e., evidence

17

whose exculpatory value was apparent before it was destroyed and that is of such a

18

nature that the defendant cannot obtain comparable evidence by other reasonably

19

available means. See California v. Trombetta, 467 U.S. 479, 489 (1984); Grisby v.

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Blodgett, 130 F.3d 365, 371 (9th Cir. 1997).

21

Although the good or bad faith of the police is irrelevant to the analysis when

22

the police destroy material exculpatory evidence, the analysis is different if the

23

evidence is only potentially useful: there is no due process violation unless there is

24

bad faith conduct by the police in failing to preserve potentially useful evidence.

25

Illinois v. Fisher, 540 U.S. 544, 547-48 (2004); Arizona v. Youngblood, 488 U.S.

26

51, 58 (1988); United States v. Sivilla, 714 F.3d 1168 (9th Cir. 2013); Villafuerte v.

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Stewart, 111 F.3d 616, 625 (9th Cir. 1997). Potentially useful evidence is

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“evidentiary material of which no more can be said than that it could have been
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subjected to tests, the results of which might have exonerated the defendant.”

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Youngblood, 488 U.S. at 57. Another configuration of this test is that a

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constitutional violation will be found if a showing is made that 1) the government

4

acted in bad faith, the presence or absence of which turns on the government’s

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knowledge of the apparent exculpatory value of the evidence at the time it was lost

6

or destroyed, and 2) that the missing evidence is “of such a nature that the defendant

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would be unable to obtain comparable evidence by other reasonably available

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means.” Sivilla, 714 F.3d at 1172 (internal quotation marks omitted) (finding

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government did not act in bad faith where exculpatory value of destroyed vehicle
was not obvious); United States v. Estrada, 453 F.3d 1208, 1212-13 (9th Cir. 2006)

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For the Northern District of California

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(no bad faith in part because there was no evidence of “malicious intent” by

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government).

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Under any version of the test, Petitioner’s claim fails because there was

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simply no bad faith on the part of the government with respect to the items at issue.

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First of all, the police were not responsible for the loss of Petitioner’s cell phone,

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which had been inadvertently turned over to Doe at the tow yard. In fact, the

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prosecution was not even aware of its location until Doe contacted the prosecutor’s

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office and informed them that she had it. See supra at 19. Thereafter, when the

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prosecution repeatedly requested that the cell phone be returned, Doe was unable to

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locate it. Id. Even though the cell phone was ultimately not found, the prosecution

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made the cell phone records available to Petitioner. Id. Accordingly, there is no

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evidence that the prosecution acted in bad faith with respect to preserving

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Petitioner’s cell phone. Furthermore, Petitioner sets forth no explanation as to why

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the cell phone itself had exculpatory value; simply asserting that he lost text

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messages, emails and pictures from it is not sufficient without a more detailed

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explanation as to the specific content and its relevance to his defense. Lastly, since

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the cell phone was never in the possession of the prosecution such that they could

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examine its contents, it cannot be said that the prosecution was aware of any such
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exculpatory evidence and acted in bad faith in failing to preserve it.

acted with bad faith or that the car held potentially exculpatory value. Petitioner

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claims that Doe testified that she let him drive the car because it had mechanical

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problems when, in fact, the car did not have any mechanical problems. See supra at

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21. In other words, the exculpatory value of the car was in diminishing Doe’s

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credibility. However, it cannot be said that the exculpatory value of the car was

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readily apparent to the police. See Sivilla, 714 F.3d at 1172. As the state appellate

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court pointed out, the sexual assault did not occur in the car and there was no reason

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for the police to believe that Doe’s testimony regarding why she permitted Petitioner

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For the Northern District of California

With respect to Doe’s car, again there is no evidence that the government

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United States District Court

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to drive her car would be subject to dispute. See supra at 21.

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Lastly, Petitioner also fails to show bad faith on the part of the police in the

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destruction of the van. Rather, the state appellate court reasonably determined that

14

the police attempted to preserve everything of value in the van when they retrieved,

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inventoried, and preserved the contents of the van as well as took photographs of the

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vehicle before releasing the van to the tow yard. See supra at 20-21. Petitioner

17

claims that the pictures of the rear window “‘would have demonstrated that Jane

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Doe made an unreliable report to the police officer when she said she had seen him

19

drive away.’” Id. at 21. However, as the state court pointed out, the police had no

20

reason to believe that the view out of the rear window would be in anyway relevant

21

to Petitioner’s defense. Id.

22

Because the state court’s rejection of this claim was not an unreasonable

23

application of Supreme Court precedent or based on an unreasonable determination

24

of the facts in light of the evidence presented in the State court proceeding, 28

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U.S.C. § 2254(d), Petitioner is not entitled to federal habeas relief.

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C.

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Lastly, Petitioner attacks the admission of evidence of prior bad acts under

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Admission of Evidence

California Evidence Code §§ 1108 and 1101 as a violation of his right to due
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process.
The state appellate court reviewed what took place and denied the claim.
Background
On April 17, the court heard lengthy argument on a motion by
the prosecution to introduce evidence of defendant’s prior sexual
assaults pursuant to Evidence Code sections 1108 and 1101,
subdivision (b). According to the prosecutor, the victims in four
separate incidents did not know each other, and the nature of the
offenses, the type of victim, and the manner in which offenses were
committed were similar in that defendant used verbal threats to
intimidate strangers, take their cars, and commit sexual assaults.
And, according to the prosecutor, defendant’s “excuses” were similar
in each case.

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Defendant objected to admission of the evidence. As to the
incident involving Robin Doe, defendant argued that the district
attorney declined to prosecute based on inconsistencies in the
victim’s story as well as a statement by her brother that she did not
appear to have been held against her will. Further, according to
defendant, the district attorney indicated defendant knew too much
about the victim to never have met her before and believed there was
more to the story than the victim was telling. Finally, the tape
recorded statements on which the district attorney relied had been
destroyed.
In response to defense counsel’s objection that the taped
statements from Robin Doe and defendant had been destroyed, the
prosecutor pointed out that those statements were summarized in the
police report, and the police officer who took the statements was
available to testify. Further, the victim would be subject to crossexamination.

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As to Elizabeth Doe, defendant argued he was acquitted of
carjacking, assault to commit rape, and kidnapping to commit
another crime. Thus, he contended, the jury did not believe he
attempted to strangle or rape Elizabeth or ripped off her shirt.
Over defendant’s objection, the court admitted evidence
regarding the assaults on Elizabeth and Robin:

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“As to the January... 15, 2004 incident [involving Elizabeth
Doe], the Court finds that this may come in under [Evidence Code]
1108 and 1101(b). In this case it’s not as inflammatory as this
particular case that we’re here on. I don’t see any probability of
undue confusion. It’s not too remote in time. His due process issues
are certainly going to be taken care of. We will not allow any–
you’ll have ample opportunity to cross-examine the victim.

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“It’s a very similar kind of offense here. It’s similar in
character. It’s similar with the way this whole incident in this case
went about. I mean it wasn’t exactly the same, but there were
several similarities that the Court noted.
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“No two cases are going to be exactly alike but I don’t feel
that the – I do feel that probative value outweighs the prejudicial
effect in this case, so the Court will allow the January 15, 2004 case
to be admitted in the case-in-chief, [Evidence Code] 1108 and
1101(b).
“As to the November 16, 2000 case [involving Robin Doe], in
that case it’s also very similar as to this situation, the way things
occurred here. And I understand the concern about the material that
has been lost. However, Sergeant Rullamas is available, the victim
is available, and there is a summary there. And again the level of
proof is only by preponderance of the evidence. But the Court finds
that this, and that particular case, November 16, 2000 case it’s no
more inflammatory than this case that we’re here. There’s no
probability of confusion, it’s not too remote in time, the probative
value clearly outweighs the prejudicial effect here, and it goes to a –
does go to intent. So the Court will allow that under [Evidence
Code] 1108 and 1101(b).” [FN7]

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For the Northern District of California

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FN7. The court also allowed evidence of a third incident that
occurred on September 9, 2007, although the prosecutor did
not end up introducing that evidence at trial. And the court
excluded evidence of a fourth incident on January 20, 2002,
finding that it would cause an undue consumption of time.

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The Law
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As a statutory exception to the general prohibition against the
evidence of character evidence (see Evid. Code, § 1101, subd. (a)),
Evidence Code section 1108 permits the admission of evidence of
defendant’s prior sex offenses – even if uncharged – in an action in
which defendant is accused of a sex crime. It expressly requires the
trial court to conduct an analysis under Evidence Code section 352
before admitting such evidence. (Evid. Code, § 1108, subd. (a).) In
other words, the trial court has the discretion to “exclude [the]
evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of misleading the jury.”
(Evid. Code, § 352.) The court must carefully weigh the probative
value of such evidence against the danger of undue prejudice,
considering its “nature, relevance, and possible remoteness, the
degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main
inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending
against the uncharged offense, and the availability of less prejudicial
alternatives to its outright admission, such as admitting some but not
all of the defendant’s other sex offenses, or excluding irrelevant
though inflammatory details surrounding the offense.” (People v.
Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).) “[T]he probative
value of ‘other crimes’ evidence is increased by the relative
similarity between the charged and uncharged offenses, the close
proximity in time of the offenses, and the independent sources of the
evidence (the victim’s) in each offense.” (Ibid.)

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The Trial Court Did Not Abuse Its Discretion In
Admitting Evidence of Defendant’s Prior Sex Offenses

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For the Northern District of California

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The testimony of Robin Doe and Elizabeth Doe was
undeniably probative. As noted by the prosecutor, the two incidents
were remarkably similar to this case, all involving defendant using
threats to intimidate his victim, sexually assaulting (or attempting to
sexually assault) her in a vehicle, and then stealing her car. The
evidence was presented in a straightforward manner, with the victims
testifying at trial. They were subject to cross-examination, and the
jury was able to evaluate their credibility. Neither of the incidents
were unreasonably remote: the incident involving Robin occurred 11
years before the trial, the assault of Elizabeth seven years before,
with defendant incarcerated for a significant period between his 2004
assault on Elizabeth and his 2011 assault on Jane Doe. (See People
v. Branch (2001) 91 Cal.App.4th 274, 284 [“No specific time limits
have been established for determining when an uncharged offense is
so remote as to be inadmissible.”]; People v. Ewoldt (1994) 7 Cal.4th
380, 405 [no abuse of discretion in admitting 12-year-old evidence];
People v. Burns (1987) 189 Cal.App.3d 734, 738-739 [“A number of
courts have considered the defendant’s subsequent conduct a
relevant consideration when the defendant seeks to exclude a prior
conviction on the basis of remoteness”]; cf. People v. Harris (1998)
60 Cal.App.4th 727, 739 [a 23-year gap, coupled with the fact that
defendant had led an “unblemished life” during that 23-year period,
militated against admission of the prior offense].)

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At the same time, the evidence was not unduly prejudicial.
The testimony was not likely to confuse, mislead, or distract the
jurors, nor was it inflammatory. Additionally, the trial court
excluded evidence of a third incident, finding that it would lead to
undue consumption of time. To be sure, the evidence may have
damaged defendant’s case, but “[t]he prejudice which exclusion of
evidence under Evidence Code section 352 is designed to avoid is
not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. ‘[A]ll evidence which tends to
prove guilt is prejudicial or damaging to the defendant’s case. The
stronger the evidence, the more it is “prejudicial.” The “prejudice”
referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as
an individual and which has very little effect on the issues. In
applying section 352, “prejudicial” is not synonymous with
“damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.)
We thus conclude that the court did not abuse its discretion by
allowing the testimony of Elizabeth Doe and Robin Doe pursuant to
Evidence Code section 1108. [FN8] In light of this, we need not
consider defendant’s alternative argument that the trial court abused
its discretion in admitting the evidence under Evidence Code section
1101, subdivision (b).

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FN8. Defendant also raises a facial challenge to Evidence
Code section1108, contending that the admission of prior
conduct evidence to prove criminal disposition violated his
right to due process. He acknowledges, however, that the
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1

California Supreme Court rejected this argument in Falsetta,
supra, 21 Cal.4th 903, 910-922, and that we are bound by
Falsetta. He asserts it merely to preserve it for federal
review.

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3
4
5

(Ans. Ex. C at 19-23.)
Permitting a jury to hear evidence of prior crimes or bad acts may violate due

6

process. See Marshall v. Lonberger, 459 U.S. 422, 438-39 n.6 (1983); Fritchie v.

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McCarthy, 664 F.2d 208, 212 (9th Cir. 1981) (citing Spencer v. Texas, 385 U.S.

8

554, 561 (1967)). A state court’s procedural or evidentiary ruling is not subject to

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federal habeas review, however, unless the ruling violates federal law, either by
infringing upon a specific federal constitutional or statutory provision or by

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For the Northern District of California

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depriving the defendant of the fundamentally fair trial guaranteed by due process.

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See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d

13

918, 919-20 (9th Cir. 1991). Accordingly, a federal court cannot disturb on due

14

process grounds a state court’s decision to admit evidence of prior crimes or bad acts

15

unless the admission of the evidence was arbitrary or so prejudicial that it rendered

16

the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir.

17

1995); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839

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(1986).

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The Ninth Circuit has held that the admission of other crimes evidence

20

violates due process where there are no permissible inferences the jury can draw

21

from the evidence (in other words, no inference other than conduct in conformity

22

therewith). See McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir. 1993); Jammal,

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926 F.2d at 920. But it is generally upheld where: (1) there is sufficient proof that

24

the defendant committed the prior act; (2) the prior act is not too remote in time; (3)

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the prior act is similar (if admitted to show intent); (4) the prior act is used to prove a

26

material element; and (5) the probative value of admitting evidence of the prior act is

27

not substantially outweighed by any prejudice the defendant may suffer as a result of

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its admission. See McDowell v. Calderon, 107 F.3d 1351, 1366 (9th Cir.) (sentencer
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may rely on prior criminal conduct not resulting in a conviction if the evidence has

2

“some minimal indicium of reliability beyond mere allegation”), amended, 116 F.3d

3

364 (9th Cir. 1997), vacated in part by 130 F.3d 833, 835 (9th Cir. 1997) (en banc);

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Walters, 45 F.3d at 1357-58 (upholding state admission of prior on federal habeas

5

review); Sanders v. Housewright, 603 F. Supp. 1257, 1259 (D. Nev. 1985) (same),

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aff’d, 796 F.2d 479 (9th Cir. 1986); see also United States v. Sneezer, 983 F.2d 920,

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924 (9th Cir. 1992) (upholding admission of prior on direct review on similar

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grounds), cert. denied, 510 U.S. 836 (1993).

arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Maass,

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For the Northern District of California

Here, the trial court’s admission of Petitioner’s prior bad acts was not

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United States District Court

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45 F.3d at 1357. Rather, the record shows that the trial court duly weighed the

12

probative value against the prejudicial impact and found the former outweighed the

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latter. See supra at 24-25. Furthermore, the victims of the prior bad acts testified at

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trial and were subject to cross-examination such that the jury could assess their

15

credibility. Id. at 26.

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The admission of the prior bad acts is also sound under Ninth Circuit

17

precedent: (1) the victims testified at trial and identified Petitioner as the culprit; (2)

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the acts were not too remote in time, having occurred eleven and seven years before

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trial; (3) the acts were “remarkably” similar in that Petitioner used threats to

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intimidate the victims, he sexually assaulted, or attempted to sexually assault, the

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victims in a vehicle, and then he stole their cars; (4) the prior acts were used to prove

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that Petitioner intended to sexually assault Doe; and (5) as reasonably determined by

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the trial court, the probative value of the prior bad acts was not substantially

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outweighed by any prejudice. See McDowell, 107 F.3d at 1366. Accordingly, it

25

cannot be said that Petitioner’s right to due process was violated by the admission of

26

his prior bad acts.

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28

Even if an evidentiary error is of constitutional dimension, the court must
consider whether the error was harmless under Brecht v. Abrahamson, 507 U.S. 619
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28

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(1993). Dillard v. Roe, 244 F.3d 758, 767 n.7 (9th Cir. 2001). Here, the evidence

2

against Petitioner was overwhelming despite Jane Doe’s inconsistent statements:

3

Doe immediately reported the rape; she was still wearing the tampon that had been

4

in place when Petitioner raped her during her sexual assault examination; Petitioner

5

stole her car and all her personal belongings; and Petitioner was found with her car

6

and attempted to flee from the police, demonstrating consciousness of guilt. See

7

supra at 4-5. Accordingly, it cannot be said that the jury would not have found

8

Petitioner guilty but for the evidence of the prior bad acts

9

Because the state court’s rejection of this claim was not an unreasonable
application of Supreme Court precedent or based on an unreasonable determination

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For the Northern District of California

United States District Court

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of the facts in light of the evidence presented in the State court proceeding, 28

12

U.S.C. § 2254(d), Petitioner is not entitled to federal habeas relief.

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14

CONCLUSION

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16

After a careful review of the record and pertinent law, the Court concludes
that the Petition for a Writ of Habeas Corpus must be DENIED.

17

Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the

18

Rules Governing Section 2254 Cases. Petitioner has not made “a substantial

19

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has

20

Petitioner demonstrated that “reasonable jurists would find the district court’s

21

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

22

529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of

23

Appealability in this Court but may seek a certificate from the Court of Appeals

24

under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the

25

Rules Governing Section 2254 Cases.

26

The Clerk shall terminate any pending motions, enter judgment in favor of

27

Respondent, and close the file.

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///
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IT IS SO ORDERED.

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DATED:

1/4/2016

EDWARD J. DAVILA
United States District Judge

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN YOUNG,

Case No. 5:14-cv-03550-EJD

Plaintiff,
8
v.

CERTIFICATE OF SERVICE

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RON BARNES,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on 1/5/2016, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.
Brian Young ID: T-15087
California State Prison-Sacramento Facility/Bed: F-17-3
P.O. Box 290066
Represa, CA 95671

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Dated: 1/5/2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Elizabeth Garcia, Deputy Clerk to the
Honorable EDWARD J. DAVILA