Opinion
Case No. 1:11-cv-00951-LJO-SKO-HC
09-10-2014
KEVIN LAQUAN TRICE, Petitioner, v. MARTIN BITER, Warden, Respondent. TOMMY NICHOLS, Petitioner, v. SCOTT FRAUENHEIM, Warden, Respondent.
ORDER SUBSTITUTING WARDEN MARTIN BITER AS RESPONDENT TO PETITIONER TRICE'S PETITION AND WARDEN SCOTT FRAUENHEIM AS RESPONDENT TO PETITIONER NICHOLS'S PETITION FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER TRICE'S REQUEST FOR AN EVIDENTIARY HEARING, DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), ENTER JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER NICHOLS'S PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), ENTER JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS
Petitioners Kevin Laquan Trice and Tommy Nichols are state prisoners proceeding pro se and in forma pauperis with petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matters have been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court are two consolidated petitions for writ of habeas corpus brought by Petitioners who were tried together.
Petitioner Trice's petition was filed in case number 1:11-00951-LJO-SKO-HC on May 25, 2011, and transferred to this Court on June 10, 2011. Respondent filed an answer on July 24, 2012, and Petitioner filed a traverse on September 21, 2012.
Petitioner Nichols's petition was filed in case number 1:13-cv-01561-AWI-BAM-HC on September 12, 2013. An answer was filed on December 16, 2013; no traverse has been filed.
I. Jurisdiction and Order Substituting Respondents
Because the petitions were filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
The challenged judgment was rendered by the Superior Court of the State of California, County of Stanislaus (SCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Further, Petitioners claim that in the course of the proceedings resulting in their convictions, they suffered violations of their constitutional rights. Accordingly, the Court has jurisdiction over the subject matter of the action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. - , -, 131 S.Ct. 13, 16 (2010) (per curiam).
As to Petitioner Trice, an answer was filed on behalf of Respondent Ron Barnes, who at the time the answer was filed was the warden of the High Desert State Prison (HDSP), where Petitioner Trice was incarcerated at the time of the filing of the petition and the answer. Respondent sought to substitute Warden Barnes as the Respondent in place of Warden McDonald. (Doc. 42.)
Petitioner initially named as a respondent a person who had custody of Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The fact that Petitioner was transferred to the Kern Valley State Prison (see doc. 51, filed April 17, 2013) after the petition was filed does not affect this Court's jurisdiction; jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change. Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (citing Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971)). Accordingly, the Court has jurisdiction over the person of the Respondent.
However, in view of the fact that the official website of the California Department of Corrections and Rehabilitation (CDCR) shows that the warden at KVSP is Martin Biter, it is HEREBY ORDERED that Martin Biter, Warden of the Kern Valley State Prison, be SUBSTITUTED as Respondent pursuant to Fed. R. Civ. P. 25.
The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). The address of the official website for the CDCR is http://www.cdcr.ca.gov.
As to Petitioner Nichols, an answer was filed on behalf of P.D. Brazelton, who was Petitioner Nichols's custodian at the Pleasant Valley State Prison (PVSP) when the answer was filed, and who sought to be substituted as Respondent. Thus, Petitioner Nichols named a person with custody sufficient to give the Court jurisdiction over the person of the Respondent custodian.
However, in view of the fact that the official website of the CDCR shows that the warden at PVSP is now Scott Frauenheim, it is HEREBY ORDERED that Scott Frauenheim, Warden of the Pleasant Valley State Prison, be SUBSTITUTED as Respondent pursuant to Fed. R. Civ. P. 25.
II. Procedural Summary
Petitioners Trice and Nichols were tried together with Jermaine Michael Dean in the SCSC from November 14, 2006 through March 16, 2007; Bobbie Blueblood was also charged but was tried separately. (3 CT 867, 5 CT 1230-39; LD 1-2.)
"LD" refers to documents lodged by Respondent in Petitioner Trice's case.
Petitioners were convicted of the first degree murder of Jose Ruiz perpetrated on March 3, 2002, during the commission of a robbery with the personal use and discharge of a firearm; residential robbery of Tatum and Jose Ruiz with gang enhancements and with the personal use and discharge of a firearm; and false imprisonment of Roshyla and Ezra Ruiz involving the personal use of a firearm and with gang enhancements. (LD 3, 1-2.) Each crime was alleged to have been committed for the benefit of, at the direction of, or in association with the Pasadena Denver Lane Bloods (PDL), a criminal street gang, but the gang allegation was dismissed during trial as to the murder count. Following an evidentiary hearing on a motion for new trial, all gang enhancements were stricken, but the new trial motion was otherwise denied. (Id. at 2-3.)
Petitioner Trice was sentenced to life in prison without the possibility of parole plus determinate and indeterminate terms as well as restitution and fines. (Id. at 2-3.) On June 29, 2010, in People v. Nichols et al., case number F055572, the Court of Appeal of the State of California, Fifth Appellate District (CCA) modified the judgment with respect to a fine but otherwise affirmed the judgment as to Petitioner Trice. (LD 3.) Petitioner filed a petition for review in the California Supreme Court (CSC). On October 13, 2010, in case number S184678, the CSC denied review without any statement of reasoning or citation of authority. (LD 4, LD 5.)
Petitioner Nichols was found to have suffered two prior serious felony convictions that were also strikes (§ 667, subds.(a) & (d)) and to have served three prior prison terms (§ 667.5, subd. (b)). Petitioner Nichols was sentenced to life without the possibility of parole on the murder, plus determinate and indeterminate terms. On appeal, the CCA affirmed the convictions, but reversed the firearms enhancements pursuant to Cal. Pen. Code § 12022.53(c) and (d) for insufficiency of the evidence and ordered that sentence be imposed on the section 12022.53, subdivision (b) enhancements. (LD 3, 11819, 122.) A petition for review filed in the California Supreme Court (CSC) was denied summarily on October 13, 2010, in case number S184678. (LD 4, LD 5.)
Petitioner Nichols was resentenced, and he appealed from the resentencing; on March 13, 2012, in People v. Nichols, case number F061963, 2012 WL 832612 (March 13, 2012), the CCA affirmed the judgment but ordered the abstract be modified to delete fines and correctly reflect the term and custody credits.
The docket of the CCA and CSC show that Petitioner Nichols filed a petition for writ of habeas corpus in the CCA on September 2, 2011, which was denied on September 15, 2011. In re Tommy J. Nichols, case no. F063212. On June 25, 2012, Petitioner Nichols filed a petition for writ of habeas corpus in the CSC, which summarily denied it on November 14, 2012. In re Tommy J. Nichols, case no. S203621.
The Court takes judicial notice of the docket as posted on the official website pursuant to Fed. R. Evid. 201(b). United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v Martel, 601 F.3d 882, 885 (9th Cir. 2010), cert. denied, 131 S.Ct. 332 (2010). The address of the official website of the California state courts is www.courts.ca.gov.
III. Factual Summary
In a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. 28 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004). This presumption applies to a statement of facts drawn from a state appellate court's decision. Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). Here, Petitioner Trice expressly adopts the statement of the case and statement of the facts set forth on pages 1 through 31 of the CCA's decision. (Trav., doc. 47, 16.) Accordingly, the following statement of the facts of the offenses consists of a summary of the facts as recorded in the CCA's decision in People v. Nichols et al., case number F055572, filed on June 29, 2010.
A. Background
In March 2002, Tatum and Jose "JoJo" Ruiz, the homicide victim, lived with their two children, eight-year-old Roshyla and five-year-old Ezra, in a house on Montilla Lane, a small cul-de-sac in Modesto. Ruiz was known to law enforcement as a member of a Norteno gang called the West Side Boyz, and as a major distributor of base cocaine in west Modesto based on information from, and controlled buys conducted by, confidential informant Phillip Collins, who was Ruiz's friend and fellow drug dealer. In the previous year or so, Ruiz regularly bought cocaine by the kilo, cooked the cocaine and turned it into rock form, and then sold the product mostly by the ounce. According to Tatum, Ruiz did not sell drugs from their residence or keep more than small amounts of cocaine there; however, he sometimes prepared, cooked, or packaged the drugs at the house; customarily hid large sums of cash in different parts of the house; and kept a Taurus nine-millimeter semi-automatic pistol in a safe with an electronic lock in the master bedroom closet.
After having twice sold crack cocaine to an undercover officer and informant, in July 2000 Collins sought to avoid eight to ten years in prison by signing a contract with the Modesto Police Department that was approved by the district attorney's office. Pursuant to the agreement, Collins was required to 1) buy drugs from Ruiz, Ruiz's brother Javier Ruiz, and another individual in controlled settings; 2) testify as needed; 3) obey all laws and make all court appearances; and 4) keep Modesto Police Sergeant Helton advised of his residence and whereabouts. In return, Collins would plead guilty to one count of selling drugs, and he would be sentenced to local time and three years' probation. Helton would contact Collins when a purchase was to be made and tell him from whom to make the buy. Collins would then arrange the deal, buy the drugs, and give the drugs to the police. He was wired for sound during the transactions, and the police gave him money to make the purchases. Under the supervision of Helton and FBI Agent Tim Hammond, Collins made approximately twenty controlled buys from Ruiz or his associates in quantities ranging from an ounce to a quarter kilo.
As a result, federal authorities had planned to serve a search warrant on Ruiz's residence within a matter of days of the murder. Federal grand jury indictments were obtained in February 2002 and served in March, with the prosecution of Ruiz's associates concluding in late spring 2003, when they all pled guilty in federal court. According to Helton, Collins would not have been privy to the status of the investigation and would not have been told when arrests and indictments were imminent; he was not to receive any consideration for his participation in the case concerning the Ruiz homicide.
Ultimately, Collins never pled guilty to anything or served time in jail, and he was told he would not be prosecuted on his case. Collins likewise faced no federal charges, but instead was paid money by the federal agents, who when contacted by Helton in the fall of 2000 were interested in pursuing Ruiz.
In 2002, Collins also knew Nichols (known as Bam or Bam Bam), and he came into contact with Dean (known as J Dogg). Collins was acquainted with Trice (known to him as Roach) and Bobby Blueford, whom he got to know around 1995 when Collins served thirteen months in the California Rehabilitation Center (CRC) for felony offenses involving controlled substances. At CRC Collins associated daily with Trice, who was from the PDL, had "Pasadena" and "DL" tattoos, mostly associated with those wearing red (Bloods) as distinct from blue (Crips), and was seen to have "thrownn a Blood sign with his hands. Collins bragged to Trice and Blueford about his good drug connection in Modesto, whom he described as a Mexican partner. After release from CRC, Collins and Trice met up when Trice would come to Merced to visit family. (See LD 3, 3-6.)
B. The Robbery and Homicide
On March 1, 2002, the Friday of the weekend of the murder, Trice, who had called Collins the previous week, arrived at Collins's home in Atwater with Dean, Nichols, and Blueford in a rented silver Lincoln Town Car, seeking a quarter kilo of rock cocaine. Trice asked several times for Collins to hook them up with Collins's "Mexican homeboy" and repeatedly sought to know the details of the transaction. Collins knew that setting up the deal would violate the terms of his contract with the police department, so he put Trice off by telling him to call in the next day or so; nevertheless, Collins, who was drinking at the time, told Trice and his co-defendants the make and color of his connection's car and that his connection had a lot of drugs and money stashed. According to Collins, he was not familiar with the address at which Ruiz lived at the time. Collins denied telling an investigator from the Department of Justice that appellants had come to do a "lick," i.e., a robbery. Trice and Blueford stayed at Collins's house all day, while Dean and Nichols were there off and on.
Officer Helton had contact with Collins late Friday morning; Collins said nothing about knowing of people who were trying to make buys from Ruiz, even though he was under an obligation to notify Helton anytime there was a possible sale of drugs involving Ruiz. Likewise, Collins did not contact Hammond, his federal handler, although he knew Hammond would be very interested.
On Saturday, Collins was at a wedding, but caller identification records on his phone showed that Trice called several times during the day. Collins called him back at least once and said he was busy that day and would call back. Collins did not know whether Trice called on Sunday; it was Collins's daughter's birthday, and Collins was away from home all day.
On that Sunday evening, Jose Ruiz was away from home after having received a lot of calls on his cell phone, including a call from Tatum made around 8:00 p.m. At the residence about fifteen minutes later, while the children were in the bathroom and Tatum was working in the kitchen, Tatum heard the front door open and close and then heard Ruiz call to her in an urgent tone to get down. She observed Ruiz on the ground between the entryway and kitchen being held by the back of his shirt by two men who were pointing guns at him. One was Dean. A third person, Trice, came around the corner with a black revolver pointed at Tatum and told her to get down. Tatum then saw Nichols, who was holding a black gun that was the biggest of the guns she saw. Nichols pointed it at Ruiz. Trice continued to direct Tatum to keep her head down. One or more of the intruders said something to the effect that they just wanted the stash.
At Dean's direction, Trice walked Tatum out of the kitchen and through the dining room, where she saw two other persons, causing her to believe there were four intruders. Nichols pointed the gun at Ruiz, and Trice went toward Ruiz, but Tatum did not see what Trice did.
Roshyla testified that upon being told by Ezra that her father's friends were there, she left the bathroom where the children were going to bathe and went to see who they were. She saw around three African-American men coming through the door. The intruders were wearing black clothing and some were wearing beanies. One of the men, whom she subsequently identified as Dean at a photographic lineup and at trial, had black hair done in shoulder-length braids, a skinny or bony face, a long and pointy nose, and teeth protruding from his mouth. After Roshyla returned to the bathroom, Dean entered and then returned with Tatum, holding a gun to the back of her head and holding both of her arms behind her back.
At Dean's direction, Tatum and Dean left the room and returned with clothing for the children that had been in the laundry room, and Tatum hurriedly dressed the children. Dean looked around the bedroom and walked towards jewelry on the dresser; a watch was subsequently found to be missing, as was Tatum's cell phone, which was in her purse on the bed in the bedroom.
Tatum saw Trice and Nichols, who were both armed, force Ruiz at gunpoint to walk through the bedroom to the walk-in closet. The safe was behind the half-open door of the closet, through which Tatum could see the back of Nichols's light blue shirt. She heard gunshots, probably at least three initially, and then saw Dean go to the closet door and start shooting inside the closet at a downward angle, firing a few shots. Tatum saw at least four shots go into the closet door while other shots were heard still going off behind the door. Tatum screamed and cried, ran to the bathroom, opened a window, broke off the screen, and boosted Roshyla up so she could climb out, instructing her to run to the neighbor's house and tell them to call 911. Tatum testified that she tried to pick Ezra up and put him through the window, but he was screaming and so scared that he would not let her push him out. She told him to stay where he was, and by this time, the gunshots had stopped. Tatum believed she heard between five and ten shots.
As she ran off, Roshyla saw two of the intruders trying to leave by going over the chain-link fence next to the Ruiz house. One said that they had to get out of there, and he called the man with long braids a name that started with either R-A or R-O. Another intruder ran out of the garage, and Ruiz crawled out of the house as if he were chasing the man. Roshyla kept running to the neighbor's house across the street, telling the woman who answered the door that she thought her dad got shot. The neighbors then called the police.
After the gunshots stopped, Tatum saw no one in the bedroom or closet, but she saw Ruiz's gun on the closet floor and blood everywhere. Although the gun appeared to have malfunctioned, she grabbed it anyway and followed the blood trail through the bedroom, down the hallway, and into the garage, where she found Ruiz on his hands and knees, spitting out blood and gasping for air. Tatum ran inside to get Ezra and a telephone, and she was talking to the 911 operator when she returned to Ruiz, who was lying still. Tatum screamed to an arriving neighbor that Ruiz had been shot, and she began performing CPR. (See LD 3, 6-11.)
C. Physical Evidence at and near the Scene
Dispatched to the Ruiz residence at approximately 8:14 p.m., Modesto police arrived within minutes to find Tatum performing CPR on Ruiz, who had been shot, was down in the driveway, and was bleeding profusely. Blood was trailing from him down the driveway, and it appeared that someone had made tracks through it. Next to Ruiz lay a Taurus nine-millimeter semi-automatic handgun, which had a fifteen-round magazine in it and appeared to have malfunctioned, as the slide was partially back and a round was sticking out of the ejection port. It was subsequently determined that the unfired cartridge that was wedged in the chamber was a .40-caliber round, which, although capable of being loaded into the magazine, was too large for the gun barrel. The remaining thirteen unexpended cartridges in the magazine were the correct size. There was an odor of freshly burnt gunpowder in the house.
Police searched the area in and around the Ruiz home shortly after the shooting. Entry to the house did not appear to have been forced; the front door was partially open and a set of keys was in the lock. In the hallway that led from the garage into the house and ultimately to the master bedroom, officers found two aluminum-colored CCI brand .380-caliber shell casings, bloodstains, and bloody handprints on the carpet. Inside the master bedroom itself were three more of the expended .380 shell casings. There were also bullet holes in various places in the room, and several expended copper-jacketed bullets were recovered. From the four bullet holes in the door of the master bedroom closet and associated gunshot residue, it was possible to ascertain that those shots were fired from the outside of the closet door inward. All four were fired in a downward, almost forty-five-degree angle. In the closet was an expended nine-millimeter shell casing that was believed to have been associated with the gun found by Ruiz's body. Also in the closet was a small safe with an electronic lock. The door was open and some of the contents were spilled out onto the floor. The trajectory of the bullets shot through the closet door was toward the general area of the safe.
There were bloodstains in various places in the room, and there was also blood in the closet, although not a lot. Bloodstain samples taken from the master bedroom were Ruiz's blood. The blood evidence essentially traveled a path from the master bedroom closet, through the area of the foot of the bed, down the hallway, to the garage, and to where Ruiz's body was located. Two dressers in the room contained cash in the amounts of $8,083 and $8,400. A box of .40-caliber ammunition was found in the master bedroom. It was the only box of ammunition found in the house. The box, which should have contained fifty .40-caliber rounds, contained forty-nine .40-caliber cartridges and one 9-millimeter round.
On the living room floor was a red and black knit cap, and on the floor of the dining room were a Nokia cell phone in its holder and four plastic zip ties that also seemed out of place.
The screen on the window of the master bedroom's bathroom was partially torn, and a trail of items that appeared to have been taken from the house led to a hole that had recently been cut in the chain-link fence on the property line. Additional items and footprints led in a northerly direction. In a field directly north of the Ruiz residence, close to Woodland Avenue, officers located a black High Standard .22-caliber nine-shot rimfire revolver, which at trial Tatum testified looked similar to the one Trice pointed at her. Ruiz's blood was on the gun's cylinder. Footprint impressions in the grass and weeds indicated someone had recently run across the corner of the property. The direction of the footprints was northwest, toward Bennett Lane. A black-colored Sturm Ruger .357 Magnum revolver containing six expended shell casings was found underneath a bush in the front yard of a house on Bennett; the lack of condensation, cobwebs, and dust on the gun indicated it had not been there long. At trial, Tatum testified that this gun looked like the one that the fourth intruder (who was not present at trial) had carried. The trail of evidence was consistent with a getaway car's being parked about a block from the Ruiz house.
On November 24, 2002, Herbert Brownlee, who lived on Walker Avenue approximately half a mile north of Woodland, reported finding a Lorcin .380 semiautomatic handgun underneath the empty engine compartment of a Mustang that he was preparing to take to the junkyard. The Mustang had been in a field next to Brownlee's house for months. The gun, which was rusted, had an empty clip in it and a live round in the chamber. At trial, Tatum testified that this gun was similar to the one Dean had carried. (See LD 3, 11-14.)
D. Ballistics and Forensic Evidence
Ruiz was shot at least nine times and sustained five fatal wounds. Stippling indicated that at least two of the shots were fired from close range. Death resulted from shock and hemorrhage due to multiple gunshot wounds. Four .22-caliber bullets from rimfire cartridges were recovered from his body during the autopsy. Although there was insufficient individual detail to identify them as having been fired from the same gun, test firing showed that they could have been fired from the High Standard revolver recovered in the field near the scene.
The nine-millimeter cartridge case found in the closet was fired by the Taurus nine-millimeter pistol. That pistol would not shoot a .40-caliber bullet; as the bullet would be too big for the chamber, the gun would not load itself and would jam. A nine-millimeter and .40 -caliber cartridge are readily distinguishable because of their different diameters and weights. The condition of the Lorcin .380-caliber semi-automatic pistol was consistent with its being outside in a field for six to eight months or more, and the chamber and barrel were very corroded. The pistol was rusted shut, and a CCI-brand live round had to be forcibly removed from the chamber. This unfired round was the same caliber, and from the same manufacturer, as an expended cartridge from the homicide scene that was submitted for comparison, but results were inconclusive as to whether the expended cartridge had been fired from the Lorcin. (LD 3, 20-21.)
E. Other Evidence Revealed in Investigation
At the scene on the night of the shooting, Detective Brocchini was told by Andre Ruiz that a third party, who was a neighbor, had told Ruiz that he had heard the shooting and then saw an older Black male adult with a short Afro haircut, in an orange, primered minivan, begin to honk his horn. The neighbor said he then saw two Black subjects run from the area around the Ruiz residence to the minivan, and then the minivan drove off. The neighbor also mentioned something about a black or new Lexus. Brocchini's attempts to track down the person who actually made the statements were unsuccessful.
Collins testified that after he returned to his home in Atwater sometime after dark on that Sunday, he was visited for ten to twenty minutes by Nichols and Dean, who said that Trice had been shot crossing the street across from the gas station near Collins's house. They said they had dropped him off down the street at some girl's house. Dean said they could not leave their homeboy and asked how to get to the freeway. Collins gave him directions. Nichols, the more aggressive of the two, told Collins that they knew where he lived, and that if anyone came by asking questions, Collins was to say Trice got shot crossing the street. Collins could see the handle of a pistol tucked in the front of Nichols's pants. Nichols and Dean then left, and Collins could not tell whether anyone else was in their car. While they were there, Helton telephoned with the news that Ruiz had been shot.
Helton telephoned Collins at about 9:00 p.m. He told Collins to call him if Collins heard anything. According to Helton, Collins called him back about 11:00 that night and said he had received several calls from people, advising him of Ruiz's death. Collins said nothing about anyone named Roach, Bam, or J Dogg. Collins denied having a second conversation with Helton that night. Collins did not tell Helton anything about his visitors or Trice's being shot because he was not sure what was going on that night.
Brocchini telephoned Collins the morning after the shooting and asked Collins, whom he knew to be acquainted with Ruiz and to be working for Helton and the FBI, if he knew Trice, who had been found in Atwater, the city where Collins lived. Collins said no. However, Collins contacted Helton later that morning and told him that he thought something was going on. As a result, Helton and Hammond interviewed him that afternoon. Collins provided descriptions of Bam, Roach, and J Dogg and told the officer that the men had come by. He said they had told him they had $5,000 and wanted to buy a quarter kilo, and that they would give him $500 to set up the buy. Collins later identified pictures of the three co-defendants and Blueford from photographic lineups.
Brocchini attempted to develop a list of Trice's associates and ultimately came up with Nichols as a possible suspect. Pursuant to Brocchini's directions, on March 5, Nichols was arrested in Pasadena. A black beanie was seized in a search of his house.
The next day, Brocchini sought help in identifying J Dogg and B Dogg from an officer of the Pasadena Police Department who was known to him as an expert in the Black criminal street gangs of Pasadena. The officer's efforts and an anonymous telephone source resulted in enough information to identify J Dogg as Dean and obtain a photograph of him, which was incorporated in a photographic lineup; the lineup was e-mailed to Modesto, where Tatum and Roshyla identified Dean, who was then arrested at his home.
On March 14, Brocchini listened to a telephone call at the Stanislaus County Jail in which Dean told his mother and sister to telephone at a stated number a lady Dean identified as JP's sister, and to make sure the lady said that Dean was dropped off at her house on Friday and was not picked up until after the weekend. As a result of information contained in the call, Brocchini contacted Lisa Young, who declined to say whether Dean had been with her. Dean's sister telephoned Young and said there was a message from Dean that he wanted Young to say he was with her that weekend. Young subsequently testified that although Dean had telephoned her on the Friday of the weekend of the homicide, she had declined his request to visit her. Young did not see Dean on the weekend of the homicide.
In an interview on the night of the homicide, a neighbor who lived across the street from the Ruiz home told law enforcement that one or two days before, a black, lowered Chevrolet pickup truck drove by slowly and stopped briefly, its occupants looking at the Ruiz house. Later, a newer light-colored, grayish, or white Lincoln with tinted windows did the same thing and stopped around the corner instead of just driving on around the cul-de-sac. Following a tip received after the homicide, Brocchini learned that a car rented to Tricia Lee was at a rental yard at the airport in Burbank. Examination of the car revealed what looked like blood in the car's back seat, which forensic testing showed was Trice's blood. Nichols's palm print was found on the driver's side hood. At trial, the neighbor testified that a photograph of the Lincoln located by Brocchini looked similar to the car she saw before the shooting.
Tricia Lee rented the Lincoln on a Friday in February 2002 for the weekend only. Trice, who was with her when she rented the car, asked to use the car on Friday. Lee reported that the car was at Trice's mother's home in Altadena on Friday after work, and Trice had permission to use it on Saturday, when Lee expected to see Trice. Unsuccessful in paging Trice over the weekend, she received on Monday a call from Blueford, who said he had the car so that she could return it. Lee asked where Trice was, but Blueford said he did not know. (See LD 3, 14-20.)
F. Petitioner Trice's Injury and Medical Treatment
In response to a report of shooting, Atwater Police Officer Ridenour responded to an address in Atwater on March 3 just after 9:00 p.m. The officer encountered Trice, who identified himself as Keith (not Kevin) Trice, and who had gunshot wounds to his back and lower abdomen that Trice said he sustained while he had been walking to a store. Trice expressed a strong desire not to go to the indicated trauma center, which was in Modesto; however, on the way, Trice told the officer that he did not know who shot him, but it was a person or persons in a vehicle that could have been a car or a truck; Trice did not answer some of the officer's questions. The name "Kevin Trout" was received by a paramedic, who observed symptoms consistent with shock, and assessed the patient's physical condition as being borderline critical. Shock would be a possible explanation for a lack of information being obtained from a patient. However, the paramedic's assessment was that the patient had the ability to answer questions, but was reluctant to do so. Trice was similarly vague when questioned by a doctor at the hospital, adding little more than that he was from Los Angeles and had been down for three days, visiting a Sonjia in Atwater or Merced. Atwater police were unable to find any witnesses to a shooting or any physical evidence that a shooting had occurred in the area.
At about 1:40 p.m. on March 4, Modesto Police Detectives Grogan and Blake interviewed Trice, who stated that he had been in Atwater visiting a friend named Sonjia Girtman, and he was walking from her house to a store to purchase some alcohol when he was the victim of a drive-by shooting. He said the car was dark and that he believed he was shot by someone sitting in the front passenger seat. Trice said he was bleeding profusely, and it took him some time to gather the strength to walk back to the apartment. Grogan subsequently obtained items of evidence from the Atwater Police Department and Sonjia Girtman's house, including an expired driver's license for Keith Lamont Trice (Petitioner Trice's twin brother) and a pair of brown pants that had Petitioner's blood on them. He measured the distance and travel time between the crime scene in Modesto and Girtman's residence in Atwater, and Grogan determined it was possible for Trice to have left the scene in Modesto and gone to the address in Atwater between the homicide and when he placed the call for assistance.
After the interview ended, Blake granted Trice's request and allowed Trice to use his cell phone to call his mother. Once connected, Trice said, "Mom, I got shot yesterday in Modesto." This was said as one complete sentence, without any gaps, although Grogan could not hear what, if anything, Trice's mother said or asked. According to Barbara Trice, Petitioner Trice's mother, Petitioner never said he was shot the previous day in Modesto. She did not ask if he had been shot; she had already heard that he had been shot and that it had occurred in Atwater. Because she had heard a number of things about his health and that he had been taken to an infirmary in the jail, she asked his location. He said he was in Modesto. (See LD 3, 15-17.)
G. Gang Evidence
A red baseball cap with a "P" on it in three different places was seized at Nichols's house at the time of his arrest. A letter addressed to J Dogg from a PDL Blood in prison was found in Dean's bedroom when he was arrested. On April 1, 2002, several items bearing symbols and a writing referring to Denver Lane were found in the jail cell of Dean and Nichols.
Nichols had several tattoos. One was "Lanes" with an X through the A, which was a sign of disrespect to the Altadena Block Crips. Another of Nichols's tattoos was "God Forgive, Lanes Don't." Trice had "Pasadena" tattooed across his back, with "D" on the back of his left arm and "L" on the back of his right arm. He also had "BIP" ("Blood in Peace") on an arm. Dean had no tattoos. However, Brocchini reviewed records for the cell phone attributed to Dean and found calls made between February 25 and March 4, 2002, to the phone of Trice's girlfriend, Trice's pager, and Blueford's phone.
Pasadena Police Officer Okamoto testified as an expert on gangs, specifically the PDL, which he described as a large and very violent gang that "pretty much controls all of Pasadena, " although he had received calls about PDL involvement in criminal activity in areas outside Pasadena. Okamoto testified the PDL's primary activities were theft, robbery, drug sales, carjacking, assaults, and murder; in March 2002, PDL had at least 50 members. In Okamoto's opinion, PDL was a criminal street gang as defined by the Penal Code.
Okamoto explained that there are two sets of African-American gangs, the Crips and the Bloods, which are rivals. Although there are numerous different gangs within those two, all are either a Crip set or a Blood set. Bloods' predominant favorite color is red; Crips' is blue. PDL is a Blood set. Their main rivals are the Altadena Block Crips and the Raymond Avenue Crips. PDL members often wear a Philadelphia Phillies hat, which is red with a white P on the front. The hat seized in the search of Nichols's residence would signify someone was wearing gang attire, and "obviously" would be the hat of someone who was representing Pasadena.
In addition to colors, gang members use hand signals to identify each other. PDL members will make a P, an L, and a D with their hands, or, if they happen to see a rival as they drive by, they may throw up a quick L to signify they are from PDL.
Tattoos show fellow gang members that a person is really involved with gang activity; common tattoos are PDL, WSB for West Side Blood, DLB for Denver Lane Blood, or DL. A Blood may also have a CK tattoo, which stands for Crip Killer. In their graffiti, they will sometimes cross out the letter A so as to disrespect Altadena Block Crips. If someone passes away, they will not use the R in rest in peace, because that would be representing Raymond Avenue Crips. Instead, they will put BIP for Blood in Peace.
Blood members also often call each other "Blood," both orally or in writing, or will call each other by a moniker or "homey."
In Okamoto's experience, when gang members commit crimes with other people, they normally commit those crimes with fellow gang members they can trust. A lot of PDL's activity is based on some type of monetary gain, as well as respect and intimidation.
Based on his review of a variety of materials, Okamoto concluded that Trice, Nichols, Dean, and Blueford were PDL members. He further opined that they were active PDL criminal street gang members on March 3, 2002. In Okamoto's opinion, the co-defendants and Blueford willfully promoted, furthered, or assisted felonious criminal conduct by members of the gang by the actions alleged to have occurred in this case. The bragging rights they would bring back to Pasadena would garner them a large amount of respect from their fellow gang members, and would also bring a lot of respect to the gang. It was Okamoto's further opinion that each of the four actively participated in a criminal street gang with knowledge that its members engaged in a pattern of gang activity. His opinion was based on the intimidation factor they would bring back into the neighborhood. Whatever they would recover, such as narcotics, they would bring back into Pasadena and sell for some type of monetary gain, and then they could purchase more weapons, which would help them in more criminal activity. Furthermore, the crimes alleged were committed at the direction of or in association with a criminal street gang. All four individuals were active PDL gang members who would not want to take an associate or someone they could not trust, so when recruiting in a case like this, they would definitely recruit fellow gang members.
Brocchini also testified as an expert in criminal street gangs, and expressed opinions, and bases therefor, that were consistent with those expressed by Okamoto. In addition, Brocchini explained that Crips call each other "Cuz," while Bloods call each other "Dogg." Brocchini opined that gang members would rob other gang members because if someone breaks into a gang member's house, that person will find drugs, guns, or money. In addition, gang members usually do not report robberies, but instead try to get their belongings back on their own. (See LD 3, 21-23.)
H. Defense Evidence
A neighbor living across the street from the Ruiz family at the time of the shooting testified regarding traffic and behavior consistent with drug sales at the Ruiz residence, repeated observations of a black Lexus in the area, and evidence of gang attire. A detective confirmed that he did not even check or follow up on a list of license plate numbers of vehicles the neighbor associated with the Ruiz residence that was given to the detective shortly after the homicide.
A person who had been located in a park several blocks south of Woodland Avenue and Montilla Lane at approximately 8:15 or 8:20 p.m. on March 3, 2002, saw a male in a black hooded sweatshirt, running very fast to the south along the park and repeatedly turning around and looking back, as if maybe someone were after him. This person met up with two other individuals at the south end of the park. They talked for 30 seconds to a minute, then ran father south. The person had reported what he had seen.
When Modesto Police Officer Wilcoxson interviewed Roshyla shortly after the homicide, she said she saw four or five Black males come through the garage door and force their way into the house; one was approximately 20 to 30 years old, about five feet 10 inches, tall and thin, and wearing a black beanie on his head, as well as a long-sleeved black shirt and black baggy jeans. She was unable to give any other descriptions.
In securing the homicide scene, Modesto Police Officer Sanchez found in the exterior lock of the front door a set of keys that appeared to have blood on them.
The jury received evidence concerning two photographic lineups shown to Tatum on March 4 by Detective Owen. As to one that included Nichols's picture, Tatum remarked that the skin tones of the suspect were lighter than those in the pictures. After Owen asked whether any of the photographs looked similar aside from the skin tones, Tatum focused on the photograph of Nichols, said that the facial features were very similar, eliminated all the other photographs, and said she wanted to see the individual in person because she believed she could identify parts of his body, such as a fat gut, fat sides, and jiggling stomach. After looking at the second photographic lineup, Tatum said none of the people looked familiar. Owen noted, however, that she looked at Trice's picture several times, and when he asked why, Tatum said the complexion, forehead, and hairline were the same, but she was not sure and wanted to see the man in person; she could eliminate two of the photographs, but not the others.
On March 12, Detective Blake showed two photographic lineups to Tatum, one of which contained Blueford's picture. Tatum did not see anyone she recognized, although she pointed to the photo of someone other than Blueford as resembling one of the suspects.
Dr. Mitchell Eisen, a psychologist who testified concerning eyewitness memory and suggestibility, explained that research shows people are better in general at making identifications within their own race than they are cross-race, which tend to result in higher rates of false identifications than same-race identifications. Research also shows that the younger the child, the more suggestible, because the child tends to rely more on adults for cues as to what the adult is after and what really happened. Children are not as skillful as adults in organizing information so that it can be recalled on demand. Children are particularly influenced by their parents.
W. Jerry Chisum, a crime scene reconstructionist, examined photographs, crime scene videos, and other materials in connection with this case, and based on his review of the evidence, he concluded Ruiz was shot in the bedroom itself, not in the closet because of the absence of blood documented in the closet and the presence of blood spatter in the bedroom itself. Further, if someone other than Ruiz—for example, Trice—was shot inside the house and sustained a through-and-through wound, there would have been a bullet and some blood, which would have contained DNA. Chisum conceded that he could not exclude blood being in the closet; it could have been too small a spot to observe, or there could have been blood evidence that was not documented. He also conceded it was possible for someone to get shot and not have blood recovered from the location at which he or she was shot because someone could be shot and have internal, as opposed to external, bleeding; moreover, it was possible that clothing could catch external bleeding and prevent the blood from landing on the ground.
Chisum opined based on the jamming of the nine-millimeter pistol that someone had removed a nine-millimeter cartridge from the magazine and inserted a .40-caliber cartridge in its place. When the gun was fired once, the larger-caliber cartridge moved up, would not chamber properly, and jammed the weapon. In the photographs Chisum reviewed, the box of .40-caliber cartridges appeared to be closed. Chisum would have asked to have the weapon's magazine and the cartridges fingerprinted, particularly the .40-caliber cartridge causing the jam, the nine-millimeter shell that was in the box, and the box itself. No physical evidence Chisum saw showed Ruiz had the nine-millimeter pistol in his hand or fired it. As for the shots fired through the closet door, the powder was still present. None of the physical evidence indicated when the shots were fired, however. They could have been fired an hour or even two days before the police arrived.
From a review of photographs of the bathroom window area, Chisum opined that they were inconsistent with someone's going through that window because of the way the window's screen was dislodged, the lack of damage to the bush, and an absence of footprints in the soil below the window. The lawn appeared to be about two feet from the window, however, so it was possible that if someone landed on the grass and a photograph was taken several hours later, there might be no evidence of the landing.
Trice testified in his own defense. He drove the Lincoln rented by his girlfriend, Tricia Lee, to Altadena where he lived with his parents on what he believed to be Thursday, February 28. He visited old friends Blueford, Dean, and Nichols, and proposed driving to Madera, where Trice had lady friends and family, including his Uncle Bernard, from whom Trice wanted to buy a quarter kilo of cocaine for $5,000. Trice arranged to return to pick up his friends later. They began the journey around 8:00 p.m. on Thursday, stopping on several errands, including a visit to a gas station to allow Trice to clean himself up after his nose started to bleed while going over the Grapevine. They spent the night in Madera.
On Friday, March 1, the four visited Collins, socialized, and set up a purchase of a quarter kilo for $4,500 with a connection that Collins would hook up. They went to Merced, returned to Madera, attended a party discovered by Trice while Trice was unsuccessfully searching for Bernard, and spent the night in Madera.
Trice ended up spending Saturday night with Sonjia Girtman in Atwater, less than a mile from Collins's house. Trice had entrusted the Lincoln to Blueford, who was accompanied by Nichols, so that Blueford could drive the car back to Lee. Trice had arranged with Bernard to have Bernard drive Trice to Merced, but Bernard left without Trice, so Trice took a bus to Merced. Girtman picked him up and drove him to her house in Atwater, where Trice spent Saturday night and Sunday.
On Sunday night, Trice told Girtman that he was going to the store, smoked a cigarette outside the residence, and then walked towards the store with his head down. A car pulled up with two people in it who might have been Hispanic. The passenger said something to him that Trice did not catch; he asked what was up, then saw the passenger pull out a gun and fire, hitting Trice. Trice fell, crawled off, lost his strength, but eventually made it back, bleeding and in pain, to Girtman's house, where paramedics were called. He did not hear the car drive off and had no idea how long he had been hurt or what had happened to his money. He denied giving his name as Kevin Trout or Keith Trice; Keith's license was found in Petitioner's pants because Keith, who was Petitioner's twin, had left it there when he had borrowed the pants from Petitioner.
With respect to gang evidence, the defense presented the testimony of Timothy Rhambo, a youth counselor for a group home for foster children in Pasadena and also a boxing coach for children in the community. Rhambo was involved with PDL in the late 1980's. In the 1990's and early 2000's, he got to know Nichols quite well. He testified to Nichols' help in organizing events in aid of stopping violence between older and younger PDL gang members in 2000 or 2001. Nichols's involvement brought credibility to Rhambo and what he was trying to do, as Nichols was more known as a gang member. Rhambo also testified that it was easy to get out of the PDL gang; a person simply stops being "with that" and associating with the people he was associating with before and starts doing his own thing, whatever it is. Rhambo was seeing this from Nichols during the summer of 2001, although Nichols had been in and out of jail a lot and had had a reputation as being a hardcore gang member.
Rhambo was also acquainted with Trice, with whom he had gone to school. In the late 1990's, Trice no longer dressed like he had in the early 1980's, when he was a PDL member.
Rhambo had also seen Dean before, and thought he was "probably" an active gang member "back in the day," although he did not know. He could not remember where or in what context he had seen Dean. (See LD 3, 24-31.)
Brady v. Maryland, 373 U.S. 83 (1963).
Petitioner argues that he suffered a violation of his right to due process of law and specifically to disclosure of material information protected by the Fifth and Fourteenth Amendments when, as the trial court found, Detective Brocchini testified falsely at and after trial, withheld information, and attempted to mislead the Court and jurors. (Doc. 1, 4.) Petitioner alleges that Brocchini concealed evidence that Philip Collins was a gang member, and both Brocchini and Collins falsely denied that Collins's tattoo was a gang tattoo. (Id. at 11.) Petitioner contends that he suffered a prejudicial denial of the opportunity to impeach both Collins and Brocchini; if the jury had known that Collins was a gang member and that Brocchini had lied to back him up, it would have made a significant difference and could have persuaded the jury to disbelieve the remainder of Collins's and Brocchini's testimony, and it was sufficient to make it reasonably probable that at least one juror would conclude differently as to Petitioner's guilt. Petitioner also notes that the withheld material establishes that Brocchini testified incorrectly on other factual matters pertinent to Petitioner's guilt. Petitioner immediately seeks an evidentiary hearing on this issue and ultimately seeks the granting of his petition. (Doc. 47, 21-34.)
To reduce the length of this order, because Petitioner Trice raises many more issues than Petitioner Nichols, the discussion portion of this order will refer to Petitioner Trice as "Petitioner."
Petitioner Nichols also raises the Brady violation and argues that it rendered Collins's statements and testimony unreliable. He contends that because Collins's information was the initial link between the crimes and Petitioner Nichols, Collins's participation in the identification process tainted the subsequent identifications made in the course of photographic lineups, live lineups, and in-court identifications. (Doc. 1, 27-32.)
A. Standard of Decision and Scope of Review
Title 28 U.S.C. § 2254 provides in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision. Cullen v. Pinholster, - U.S. 131 S.Ct. 1388, 1399 (2011); Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts. Williams v. Taylor, 529 U.S. at 405-06. The state court need not have cited Supreme Court precedent or have been aware of it, "so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8 (2002).
A state court unreasonably applies clearly established federal law if it either 1) correctly identifies the governing rule but applies it to a new set of facts in an objectively unreasonable manner, or 2) extends or fails to extend a clearly established legal principle to a new context in an objectively unreasonable manner. Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. An unreasonable application of clearly established federal law under § 2254(d)(1) cannot be premised on an unreasonable failure to extend a governing legal principle to a new context where it should control. White v. Woodall, - U.S. -, 134 S.Ct. 1697, 1706 (2014). Therefore, "'if a habeas court must extend a rationale before it can apply to the facts at hand,' then by definition the rationale was not 'clearly established at the time of the state-court decision.'" Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). The Court in White v. Woodall reiterated the difference between extending a legal principle and applying rules that are squarely established by the Court's holdings to the facts of each case, which is required only if it is so obvious that a clearly established rule applies to a given set of facts that there could be no fairminded disagreement on the question. White v. Woodall, 134 S.Ct. at 1706.
An application of clearly established federal law is unreasonable only if it is objectively unreasonable; an incorrect or inaccurate application is not necessarily unreasonable. Williams, 529 U.S. at 410. A state court's determination that a claim lacks merit precludes federal habeas relief as long as fairminded jurists could disagree on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even a strong case for relief does not render the state court's conclusions unreasonable. Id. To obtain federal habeas relief, a state prisoner must show that the state court's ruling on a claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87. The standards set by § 2254(d) are "highly deferential standard[s] for evaluating state-court rulings" which require that state court decisions be given the benefit of the doubt, and the Petitioner bear the burden of proof. Cullen v. Pinholster, 131 S.Ct. at 1398. Habeas relief is not appropriate unless each ground supporting the state court decision is examined and found to be unreasonable under the AEDPA. Wetzel v. Lambert, --U.S.--, 132 S.Ct. 1195, 1199 (2012).
In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review... is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. at 1398. Evidence introduced in federal court has no bearing on review pursuant to § 2254(d)(1). Id. at 1400. Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding brought by a person in custody pursuant to a judgment of a state court, a determination of a factual issue made by a state court shall be presumed to be correct; the petitioner has the burden of producing clear and convincing evidence to rebut the presumption of correctness. A state court decision on the merits based on a factual determination will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceedings. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
With respect to each claim, the last reasoned decision must be identified to analyze the state court decision pursuant to 28 U.S.C. § 2254(d)(1). Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). Here, the last reasoned decision on all Petitioner's claims was the decision of the CCA.
B. The Decision of the State Court on the Brady Claims
The pertinent portion of the CCA's opinion (LD 3, 32-41) is as follows:
DISCLOSURE ISSUES
A. Collins's Gang Status
Appellants contend the judgments must be reversed because the prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) and its progeny by withholding evidence that Phillip Collins was a gang member, that he perjured himself on that point, and that Detective Brocchini and Sergeant Helton corroborated the perjury. We find no cause for reversal of the judgments.
1. Background
Collins's involvement in the case is summarized in the statement of facts, ante. During examination by the prosecutor, he testified that he "hung out" with Bloods while growing up on the west side of Modesto and bought drugs from them. He further testified that gang members use tattoos to signify what gang they are from, and that he had seen them use geographical tattoos such as the name of their town or "'West Side,'" "'North Side,'" or "'East Side.'" On cross-examination, Collins testified that he was never a gang member. He admitted having a "Westside Blood" tattoo, but, when asked whether that term had a gang connotation, he said he got it in CRC to fit in, and that there were no Westside Bloods in Modesto. When asked, "So you were just a Westside Blood in CRC?" Collins replied, "Yes."
Helton testified on cross-examination that, to his knowledge, Collins was never a member of a criminal street gang, and that Helton probably would have known had he been.FN25 When Brocchini was asked, "Is Phil Collins a gang member?" he replied, "No." Asked how he knew, Brocchini testified: "Because I worked in the gang unit for a long time and I knew Phil Collins, too. He was a drug dealer." FN26
FN25. Helton was in the gang unit for the second time from 1996 through 2000.
FN26. Brocchini was a gang detective from 1997 to 2000, and specialized in Black gangs, among others.
Appellants each filed a motion for new trial.FN27 Nichols asserted in part that Brocchini had prepared a report, dated February 10, 1998, in which Collins was included as a member of the Oak Street Posse (OSP), a known criminal street gang, and that this information was material to Collins's credibility, known by Brocchini, and not disclosed to the defense. A copy of the report, which identified "Collins, Phillip" as the person listed as "Philthy Phill" in the "105" column of the OSP roster, was attached as an exhibit.
FN27. Early on in trial, all were deemed to be joining in each other's motions. It is clear from the record that the trial court also regarded them as joining in each other's objections. Accordingly, throughout the appeal we will treat an objection or motion made by one as having been made by all.
An evidentiary hearing was held. Brocchini testified that about a year after his trial testimony, he was reviewing the particular MPD case report number referenced on a subpoena he received from the defense when he found a report he had written as a gang deputy in 1998. The report concerned a handwritten list found by a deputy in the jail cell of Norval Williams. It was a then-current list of OSP gang members. In 1998, OSP, a Black criminal street gang operating in Stanislaus County, had both Crips and Bloods in it. The list was split into two halves, the 105 section and the 213 section, with those numbers being addresses on Oak Street. The 105 section was Blood gang members who claimed OSP, while the 213 section was Crip gang members who claimed OSP. After the list was found under a bunk in
the jail, Brocchini deciphered the identity of some of the people. He was able to do so from working in the gang unit for a long time and talking to them and hearing what they called each other. One of the names on the list was "Philthy Phill," whom Brocchini identified as the same Phillip Collins who testified at trial.FN28 In writing the report, Brocchini never said Collins was a Blood; Collins was listed by an OSP member as being in that gang as a Blood. When Brocchini heard Collins deny at trial that he was a gang member, Brocchini believed him because Brocchini had not come across any field identification cards with Collins's name on them.
FN28. Brocchini did not recall how he linked the moniker "Philthy Phill" with Collins.
Brocchini further testified that at trial, because he was asked to render an opinion concerning whether appellants were criminal street gang members, he did a gang workup on them. He did not do anything similar with regard to Collins during the pendency of this matter. Moreover, he would not identify anyone as a gang member simply because the person's name was on the roster, because that alone would not meet a sufficient number of MPD's criteria. Collins had a gang tattoo, and Brocchini knew he associated with gang members and that he had been named by other people as a gang member at the time Collins testified. That fit three of the criteria used by MPD to establish who was a gang member. Even assuming Collins was a gang member in 1998, however, this would not necessarily mean he was still a gang member when he testified, as it is possible to get out of the gang. Brocchini did not know about Collins's tattoo until Collins testified about it, and he opined that Collins was not a gang member at the time Collins testified that he was not a gang member.
Brocchini did not tell anyone about the OSP roster or give a copy to the defense prior to trial because he did not remember it. The list was in a file regarding Norval Williams. Given the way MPD's database was set up, the only name entered in it would have been the one indexed on the front, i.e., Williams. The MPD gang unit did not keep an individual file for each suspected gang member; there was no file for Collins.
In its written ruling on the new trial motions, the trial court stated: "The Court finds Detective Brocchini's
testimony to be disingenuous. In 1998, Collins was associating with gang members, had a gang monicker [sic], a gang tattoo, and was listed on a gang roster. MPD's own criteria provide that a person isn't considered a Mrop-out' until there has been at least 5 years of no activity. In stating his opinion at trial, Brocchini did not state the many gang indicators that he was disregarding in reaching his fairly incredible opinion. Moreover, his opinion appears to have been made for the purpose of bolstering Collins['s] credibility in the eyes of the jury. The Court believes that Detective Brocchini withheld material information in testifying to this opinion." In examining this and other defense claims concerning the gang evidence, the court found "plentiful evidence of gang membership, but scant evidence of gang benefit," and that "[t]he only evidence which the jury could have relied on in reaching their decision was the opinions of the 2 experts [Brocchini and Okamoto]." The court concluded: "[T]aken individually, each of [the enumerated] problems with the gang testimony were [sic] not sufficient to raise a concern for the integrity of the process. However, when viewed in the aggregate, the Court does have a serious concern whether the proceedings leading to the jury's true finding[s] on the PC § 186.22(b)(1) gang enhancement were fundamentally fair. Accordingly, the Court orders the jury's finding on this enhancement stricken on each of the counts.... [¶] In all other respects, the motion is denied and the verdicts affirmed."
2. Analysis
"[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) FN29 The duty to disclose such evidence is wholly independent of the prosecutor's obligation under section 1054 et seq FN30 (People v. Hayes (1992) 3 Cal.App.4th 1238, 1244), exists even where there has been no request by the accused (United States v. Agurs (1976) 427 U.S. 97, 107), encompasses both impeachment and exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676), and extends to evidence known only to law enforcement investigators and not to the prosecutor (Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870; Kyles v. Whitley (1995) 514 U.S. 419, 438; In re Brown (1998) 17 Cal.4th 873, 879). "In order to comply with Brady,(LD 3, 32-41.)
therefore, 'the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police.' [Citations.]" (People v. Salazar (2005) 35 Cal.4th 1031, 1042, quoting Kyles v. Whitley, supra, 514 U.S. at p. 437; In re Brown, supra, 17 Cal.4th at p. 879.) Disclosure must be made at a time when it would be of value to the accused. (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51.)
FN29. Although the good or bad faith of the prosecutor is not determinative (Brady, supra, 373 U.S. at p. 87; In re Ferguson (1971) 5 Cal.3d 525, 532), and suppression of materially favorable evidence violates due process regardless of whether it was intentional, negligent, or inadvertent (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225), we nevertheless note that appellants do not accuse the prosecutor himself o[f] knowingly permitting perjured testimony (see People v. Musselwhite (1998) 17 Cal.4th 1216, 1252-1253).
FN30. Section 1054.1 provides in part: "The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶] ... [¶] (e) Any exculpatory evidence."
Although "the term 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence—that is, to any suppression of so-called 'Brady material'—... there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." (Strickler v. Greene (1999) 527 U.S. 263, 281, fn. omitted.) Thus, to merit relief on due process grounds, "the evidence a prosecutor failed to disclose must have been both favorable to the defendant and material on either guilt or punishment. Evidence would have been favorable if it would have helped the defendant or hurt the prosecution, as by impeaching one of its witnesses. Evidence would have been material only if there is a
reasonable probability that, had it been disclosed to the defense, the result would have been different. The requisite reasonable probability is a probability sufficient to undermine confidence in the outcome on the part of the reviewing court. It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]" (People v. Dickey (2005) 35 Cal .4th 884, 907-908; Kyles v. Whitley, supra, 514 U.S. at pp. 434-435, 436; In re Brown, supra, 17 Cal.4th at pp. 886-887.) "A showing by the [defendant] of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of 'error' and 'prejudice.' For, here, there is no 'error' unless there is also 'prejudice.' [Citations.] It follows that harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [(Chapman)], with its standard of 'harmless beyond a reasonable doubt,' is not implicated." (In re Sassounian (1995) 9 Cal.4th 535, 547, fn. 7; Kyles v. Whitley, supra, 14 U.S. at pp. 435-436; In re Brown, supra, 17 Cal.4th at p. 887.) "In sum, once there has been... error..., it cannot subsequently be found harmless...." (Kyles v. Whitley, supra, 514 U.S. at p. 436, fn. omitted.) Conclusions of law and mixed questions of law and fact, such as the elements of a Brady claim, are subject to independent review. (People v. Salazar, supra, 35 Cal.4th at p. 1042.)
We turn first to whether the undisclosed evidence would have been favorable to appellants. This was not the typical situation in which gang involvement provided a readily apparent bias or interest or motive to testify, as when a member of one gang testifies in favor of a member of the same or an allied gang, or when a witness is reluctant to testify for fear of retaliation. (See, e.g., People v. Ayala (2000) 23 Cal.4th 225, 276-277; People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450.) Nevertheless, we assume Collins's gang status was relevant to his credibility. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168.) This being the case, Brocchini's 1998 report should have been disclosed to the defense, if not before trial, then certainly once Collins testified that he was not a gang member. Instead of disclosing information he possessed to the contrary, however, Brocchini confirmed that Collins indeed was not a gang
member. Even if this was his honest opinion, the defense had the right—and should have had the opportunity—to challenge both him and Collins, especially in light of the fact Collins met several of MPD's gang criteria.FN31
FN31. We need not address, at any length, Helton's testimony on the subject. Instead of testifying definitively on Collins's gang status, Helton testified only that Collins was not a gang member to his knowledge, and that he probably would have known if Collins was. Although Helton was in the gang unit at the time Brocchini wrote the report, nothing in the record before us suggests Helton knew of its existence, and Helton was not called to testify at the hearing on the new trial motions. On this record, it would be speculative for us to conclude that Helton withheld information or condoned or corroborated erroneous testimony. (See People v. Jenkins (2000) 22 Cal.4th 900, 952.)
We turn now to the question of materiality. In making our assessment, we have undertaken the cumulative evaluation required (Kyles v. Whitley, supra, 514 U.S. at p. 441), and taken into consideration the effect of the nondisclosure on defense investigations and trial strategies (United States v. Bagley, supra, 473 U.S. at pp. 682-683; People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22). We conclude the suppressed evidence was not material under all the circumstances, as there is no reasonable probability its disclosure would have altered the trial result. (People v. Zambrano, supra, 41 Cal.4th at p. 1132.) FN32
With respect to Collins, "'[i]n general, impeachment evidence has been found to be material where the witness at issue "supplied the only evidence linking the defendant(s) to the crime," [citations], or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case, [citation]. In contrast, a new trial is generally not required when the testimony of the witness is "corroborated by other testimony," [citations].' [Citation.]" (People v. Salazar, supra, 35 Cal.4th at p. 1050.) Here, the most important portions of Collins's testimony—especially his identification of appellants as the perpetrators—was corroborated by the testimony of Tatum and, to a certain extent, Roshyla, as well as by circumstantial evidence. Brocchini's undisclosed report did not absolutely establish Collins was a gang member; moreover, jurors were aware that Collins associated with gang members and that he had a tattoo that Officer Okamoto, one of the prosecution's gang experts, testified was a common gang tattoo. Jurors knew from Brocchini's own testimony that the existence of gang tattoos and association with gang members were two matters that gang experts found indicative of gang membership.
FN32. Such a probability must be, "'as it were, "objective," based on an "assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision," and not dependent on the "idiosyncrasies of the particular decisionmaker," including the "possibility of arbitrariness, whimsy, caprice, 'nullification,' and the like." [Citation.]' [Citations.]" (In re Sodersten, supra, 146 Cal.App.4th at pp. 1226-1227.)
Most importantly, even assuming jurors would have concluded Collins lied about his gang status, such a conclusion would not have significantly altered the picture jurors already had of Collins or the myriad reasons to question his credibility on less collateral matters. The evidence showed that Collins entered into a deal with law enforcement authorities whereby he would set up his best friend, a man he had known since childhood. Under this deal, Collins was supposed to plead guilty to selling drugs and serve a sentence in the local jail, but, despite the fact he supposedly was not receiving any consideration for his testimony in the homicide case, he ended up not even being prosecuted in his case. When the operation against Ruiz went federal, Collins was no longer working off a case, but instead was working for monetary compensation. Significantly, despite the fact the agreement specifically targeted Ruiz and his drug operation, Collins never alerted Helton or Hammond to appellants' presence or desire to purchase a quarter kilo of cocaine from Ruiz, nor did he ever truly explain why he did not alert either of them. According to Helton, this was a significant enough amount of drugs that he would
"[c]ertainly" have wanted to know about it. When Helton first contacted Collins to notify him of Ruiz's death, Collins said nothing about his knowledge or suspicions. Similarly, he said nothing to Brocchini when Brocchini contacted him the day after the shooting.
In light of the foregoing, the undisclosed evidence, while favorable to appellants insofar as it tended to impeach Collins's credibility, was not material "because it would have added little to the cumulative impact of the other impeachment evidence." (People v. Dickey, supra, 35 Cal.4th at p. 908.) Given the substantial impeachment to which Collins's testimony was subjected at trial, we conclude it is not reasonably probable "that whatever confidence the jury placed in [his] testimony would have been fatally undermined" (ibid.) by learning that a moniker identified as referring to him was listed on a years-old roster for a Modesto criminal street gang, or even that Collins lied in denying he was a gang member. While we do not take potential perjury lightly, this is simply not a case in which the withheld information painted a significantly different picture of Collins and his credibility from the one placed before the jury. (Contrast In re Sodersten, supra, 146 Cal.App.4th at pp. 1233-1235; People v. Johnson (2006) 142 Cal.App.4th 776, 783-786.)
Appellants point to the effect the withheld evidence would have had on Brocchini's credibility. The bulk of Brocchini's testimony concerned the gang enhancement allegations, however, and those were stricken by the trial court. Moreover, defense counsel attacked Brocchini's credibility, ably and at length, and expressly suggested none of his testimony could be trusted. Given the fact the undisclosed report was written approximately eight years before Brocchini testified at trial, it is not at all certain jurors would have concluded Brocchini was lying, as opposed to having a memory lapse, when he testified that Collins was not a gang member.
There is no reasonable probability that, had the 1998 report been disclosed to the defense, appellants would have been acquitted. Accordingly, because the undisclosed evidence was not material, reversal is not warranted.
C. Analysis
The Due Process Clause of the Fourteenth Amendment imposes upon the prosecution a duty to disclose evidence in its possession that is favorable to an accused if it is material either to guilt of punishment. Brady v. Maryland, 373 U.S. 83, 87-88 (1963). The prosecution violates its constitutional duty to disclose to the defense material exculpatory evidence where, regardless of whether the defense requested the evidence, 1) the evidence was favorable to the accused because it was either exculpatory or impeaching; 2) the evidence was suppressed by the government either willfully or inadvertently; and 3) prejudice results from the failure to disclose. Strickler v. Greene, 527 U.S. 263, 280 (1999).
Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). However, a court may find a "reasonable probability" where the remaining evidence would have been sufficient to convict the defendant, Strickler, 527 U.S. at 290, and even without finding that the outcome would more likely than not have been different, Kyles v. Whitley, 514 U.S. 419, 434 (1995). Instead, "[a] 'reasonable probability' of a different result [exists] when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" Kyles, 514 U.S. at 434 (quoting Bagley v. United States, 473 U.S. at 678). Although each item of undisclosed evidence must be evaluated, the cumulative effect of all suppressed evidence is evaluated for purposes of materiality. Kyles, 514 U.S. at 436-37.
Here, the state court articulated the correct legal standards concerning the due process duty of disclosure of material evidence. As to Collins, the state court reviewed the evidence and reasonably determined that the defense should have had access to the gang roster listing Collins as an OSP member in 1998. Further, the state court also reasonably applied clearly established federal law in its analysis of the materiality of the undisclosed information concerning Collins's tattoo and his having been listed in another inmate's gang roster. The jury had before it similarly weighty evidence of Collins's gang ties and identity, including his having a tattoo of a type identified by expert opinion as a gang tattoo, his associating with gang members in the course of dealing drugs, his possible aiding and abetting the perpetrators by divulging to them information that effectively identified and/or located Ruiz, and his having been identified by others as a gang member. Although the probative tendency of the undisclosed impeachment evidence was to contradict Collins's denial of gang membership, other evidence that provided essentially duplicate grounds for impeachment was also presented to the jury. Thus, the undisclosed evidence tended to lack materiality. See, Barker v. Fleming, 423 F.3d 1085, 1096-97 (9th Cir. 2005) (citing Silva v. Brown, 416 F.3d 980 (9th Cir. 2005)). The state court could reasonably have concluded that with respect to its value in contradicting Collins's denial of gang membership, the roster and tattoo would not have affected the trier's determination. Further, considering how remote in time the discovery of the roster was from Collins's more recent conduct and his continuing to display a gang tattoo, it cannot be said that no fairminded jurist could reasonably agree with the state court's analysis of the materiality of the gang information.
With respect to the state court's consideration of the larger body of evidence in evaluating the materiality of the information in relation to impeaching Collins, the state court reasonably concluded that the undisclosed evidence would not have put the case in a different light or have precluded confidence in the proceedings. Although Collins was an important witness who tied Petitioner to the offenses, other evidence, including a detailed narrative of the facts of the offenses and repeated identifications by Tatum based on a substantial opportunity to perceive the intruders, identifications by Roshyla, physical and forensic evidence, and multiple sources of circumstantial evidence tied Petitioner and his co-defendants to the crime. Further, the state court reasonably concluded that Collins's credibility was more directly challenged by the strong evidence of bias presented by his arrangement with law enforcement and his receipt of substantial benefits by way of compensation and avoidance of prosecution, and by Collins's lack of integrity and honesty with Helton and Hammond concerning Petitioner's offer to buy drugs or Collins's knowledge of the perpetrators, their whereabouts, and their conduct. Likewise, Collins's willingness to work to the detriment of his old friend Ruiz provided the jury with a basis for inferring that Collins was motivated by a strong desire for personal gain.
In Smith v. Cain, - U.S. -, 132 S.Ct. 627 (2012), statements made by a witness on the evening of the offense and five days later were held to be material where the witness's testimony was the only evidence linking defendant to the crime, and his undisclosed statements directly contradicted his trial testimony, in which he had told the jury that he had "[n]o doubt" that defendant was the gunman that he stood "face to face" with on the night of the crime, but the officer's notes showed that witness said he "could not ID anyone because [he] couldn't see faces" and "would not know them if [he] saw them." Id. at 630. Here, Collins was not the only evidence linking Petitioner to the crime. Further, the undisclosed information did not bear directly on Collins's capacity to perceive the perpetrators, but rather principally affected his credibility, which had already suffered significant impeachment.
This case is also distinguishable from Banks v. Dretke, 540 U.S. 668 (2004), in which the prosecution failed to disclose that an admittedly key prosecution witness in the penalty phase of a capital trial was a paid government informant. There, the Court concluded that the undisclosed, favorable evidence could reasonably be taken to put the whole case in such different light as to undermine confidence in the verdict because the witness provided the sole basis for an inference that the defendant would continue to commit acts of violence, and there was no persuasive evidence in the record that would serve to impeach the witness. Id. at 701-03.
With respect to the materiality of the undisclosed evidence for impeachment of Brocchini, Brocchini's evidence related primarily to the gang enhancements, which were stricken. Brocchini's testimony concerning Collins's gang membership conflicted with the prosecution's chief gang expert's testimony concerning gang tattoos and association as indicia of gang membership. Independent evidence provided a basis for questioning Brocchini's reliability, including Brocchini's failure to track down the informative neighbor, his inability to remember how he obtained some information, and his inability to provide documentation of some of his claims concerning the evidence. Further, the temporal remoteness of the discovery of the gang roster vastly diluted any inference of dishonesty on the part of Brocchini. The state court reasonably concluded that the undisclosed evidence concerning the gang roster was not material.
Petitioner cites to the record and points to other evidence he alleges was withheld. Some of his challenge centers on Brocchini's testimony that there was information that Dupree Hull and Thomas White were Blood gang members, and their telephone numbers were linked to the victim's telephone number, whereas there was no basis for such a connection between the victim and Hull or White.
The Court will defer a more complete factual and legal discussion of the materiality of this evidence until a related prosecutorial misconduct claim is analyzed because these claims are set forth with more factual detail and are more fully analyzed in the state court's decision concerning alleged prosecutorial misconduct in withholding the information. Nevertheless, with that discussion in mind, the Court concludes that considering all the information and its nature and position in the present case, it cannot be said to be beyond fairminded disagreement that the state court reasonably concluded that in light of the entire record, the evidence was not material and thus the nondisclosure did not constitute a violation of due process. The state court reasonably concluded that the evidence did not put the whole case in a different light with respect to Brocchini's credibility or the Petitioners' guilt.
Further, the state court decision was not based on an unreasonable determination of fact. Pursuant to § 2254(d)(2), a habeas petition may be granted only if the state court's conclusion was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Section 2254(d)(2) applies where the challenge is based entirely on the state court record or where the process of the state court is claimed to have been defective. Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004). Such challenges include claims that a finding is unsupported by sufficient evidence, the state court's process was defective, or the state court failed to make any finding at all. Id. at 999.
With respect to Petitioner's contention that the state court adjudications was based on an unreasonable determination of fact within the meaning of § 2254(d)(2), it is established that the state court's determination must be not merely incorrect or erroneous, but rather objectively unreasonable. Id. For relief to be granted, a federal habeas court must find that the trial court's factual determination was such that a reasonable fact finder could not have made the finding; that reasonable minds might disagree with the determination or have a basis to question the finding is not sufficient. Rice v. Collins, 546 U.S. 333, 340-42 (2006). To conclude that a state court finding is unsupported by substantial evidence, a federal habeas court must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record. Taylor v. Maddox, 366 F.3d at 1000. To determine that a state court's fact finding process is defective in some material way or non-existent, a federal habeas court must be satisfied that any appellate court to whom the defect is pointed out would be unreasonable in holding that the state court's fact finding process was adequate. Id.
Here, as set forth above, the state court did not make any objectively unreasonable findings of facts; rather the state court's findings are supported by the record. Further, Petitioner received an evidentiary hearing in the trial court, and he has not shown or even suggested any material defect in the state court's fact finding process.
Petitioner Nichols argues that the withheld information would have rendered all Collins's information unreliable. However, the state court evaluated the withheld evidence in light of the totality of the evidence and came to the objectively reasonable conclusion that in view of the numerous and compelling bases for discrediting Collins that were already in evidence, the withheld evidence would not have put the whole case a different light. Although Collins gave information that was used in the identification process, the ensuing identifications were based on personal knowledge derived from sources other than Collins. Further, the Court's more detailed discussion of the identifications in connection with Petitioners' due process claims will show that the state court reasonably concluded that there had been no impermissibly suggestive identifications.
Accordingly, it will be recommended that Petitioners' Brady claims be denied.
V. Prosecutorial Misconduct involving Display of a Photograph
Petitioner argues that the prosecutor's displaying during trial a photograph of co-defendant Nichols wearing a brightly colored, striped jumpsuit and shackles constituted prosecutorial misconduct and violated Petitioner's right to substantive and procedural due process, equal protection, and a fundamentally fair trial guaranteed by the Fifth and Fourteenth Amendments. (Doc. 1, 4.) Petitioner notes that the trial court found that the prosecutor's conduct was a deliberate attempt to portray the defendants in an unfavorable light. (Id. at 11.) Petitioner asserts that the photograph was within view of the jury for longer than five minutes and that showing the evidence to the jury violated the court's order that Petitioner and the co-defendants be allowed to wear civilian clothing and proceed through trial without being shackled. (Doc. 47, 36-37.)
A. The State Court Decision
The pertinent portion of the CCA's decision is as follows (LD 3, 85-90):
C. Prosecutorial Error
Appellants contend their convictions cannot stand due to what they perceive as numerous instances of prosecutorial misconduct or other error. We conclude that while some error occurred, reversal is not warranted.
1. Display of Jail Photograph
a. Background
Appellants appeared before the jury unshackled and in street clothing. During Okamoto's gang testimony, the prosecutor elicited that Okamoto had seen photographs of Nichols's tattoos. People's exhibit 70-6 was then shown to the witness and also displayed on a screen for the jury. Counsel for Nichols objected to the display of the photograph, and also asserted it had been sitting at counsel table by the prosecutor, in view of the jury. The photograph (which we have viewed) shows Nichols in a red-
and-white-striped jumpsuit, with his hands cuffed to the front. This ensued:
"THE COURT: Mr. Maner [prosecutor], is this a picture of a tattoo you're showing?
"MR. MANER: No. [¶] ... [¶] It shows who the tattoos belong to. The first picture is going to be a picture—
"THE COURT: Is this something you cleared with everybody before you showed to the jury?
"MR. CHASE [counsel for Nichols]: No.
"MR. MILLER [counsel for Dean]: No.
"MR. TRIMBLE [counsel for Trice]: No.
"MR. MANER: This is—I mean, we've discovered this and we've gone over this in advance, Judge.
"THE COURT: We have not—
"MR. MILLER: Not an answer to the Court's question.
"(Counsel speaking simultaneously.)
"THE COURT: Hang on just a second.
"MR. MANER: Okay, I'll minimize the screen, but here's my point, Judge—
"THE COURT: Just a second please.... [¶] ... [¶] But it is, I think, ... inappropriate, ... and I think you're aware it's inappropriate to show pictures to the jury that haven't been cleared by the Court, and none of those have been.
"MR. MANER: They—I'm sorry Judge.
"THE COURT: So I'm going to sustain the objection.
"MR. MANER: I'll show it to defense counsel now. We've marked it as exhibits previously, defense
counsel knew they were coming, and in my mind it's—shouldn't be a surprise. But if they need a minute to—
"THE COURT: If something's not in evidence, Mr. Maner, it shouldn't be shown to the jury.
"MR. MANER: Okay.
"THE COURT: So consider yourself chastised. Ladies and gentlemen, please disregard any pictures you saw on the screen there that weren't—
"MR. CHASE: And also on his counsel table where he had it sitting there waving at the jury.
"MR. MANER: I didn't wave a thing at the jury.
"THE COURT: There was nothing being waved, but you do need to be aware of that and be careful with that as well too."
Nichols's attorney stated he was not contesting that the photographs were of Nichols, and there was no objection to the photographs of the tattoos themselves. He did, however, move for a mistrial based on what had happened. The court deferred that matter and allowed the prosecutor to proceed with photographs of the tattoos.
Later, outside the presence of the jury, the prosecutor apologized, explaining that he had assumed there would be no objection, because he had had the photographs marked as exhibits and defense counsel had seen them. The court observed that "we're kind of going back to trial procedure 101 here. And I think it's just a matter of common courtesy and trial procedure that you don't show things to the jury that haven't either been cleared by counsel ... or we need to talk about this first, or whatever." The court noted that the photograph was displayed on the screen for five minutes or less, and concluded that any actual prejudice was de minimis, since "the fact that the defendants are in custody is usually the worst kept secret during pretty much any trial," and custodial status generally did not bother jurors one way or the other. The court warned, however, that it sent a subliminal message when jurors saw defendants in chains or in custody, and
that "it just is simple trial procedure 101 that you have to be careful about what they can see and what they can't see."
Prior to the conclusion of trial, Nichols filed a written motion for dismissal or other sanctions due to prosecutorial misconduct. One of the grounds listed was the display of the photograph. In opposition, the prosecutor asserted that the defense's claim that the photograph had been displayed to the jury before it was admitted into evidence or shown to defense counsel was untrue, as the photographs were submitted and marked as exhibits and shown to defense counsel. FN59 The court denied the motion based on that issue alone, and also after considering the potential for cumulative prejudice.
FN59. The record does not explain the prosecutor's apparent inability to appreciate the difference between having an exhibit marked for identification, and actually having the exhibit admitted into evidence.
The showing of the photograph was one of the grounds raised in the motions for new trial. In its ruling denying the motions, the court noted: "As stated by the Court at the time, the Court felt that the violation was de minimus [sic]. However, the Court believes that a prosecutor of Mr. Manor's [sic] skill level should have known better, and does believe that the incident was a deliberate attempt to portray the defendants in an unfavorable light. As such, the Court did chastise the DA in the presence of the jury. The Court believes that any taint from the incident was cured by the sanction and did not result in undue prejudice."
Nichols and Trice now contend the prosecutor's wrongful display of the photograph irreparably tainted the trial. We agree that the prosecutor erred, but find the incident not prejudicial in and of itself. (With respect to this and other claims of error, we will address cumulative prejudice later in this opinion.)
(LD 3, 85-90.)
b. Analysis
The United States and California Supreme Courts have long held that an accused may not be compelled, over objection, to stand trial before a jury while dressed in identifiable
prison/jail clothing. (Estelle v. Williams (1976) 425 U.S. 501, 512-513; People v. Taylor (1982) 31 Cal.3d 488, 494, 495; cf. People v. Duran (1976) 16 Cal.3d 282, 290-291 [defendant cannot be subjected to physical restraints in courtroom, while in jury's presence, absent showing of manifest need].) Such a practice violates due process by creating an intolerable risk of undermining the presumption of innocence, and also impinges upon tenets of equal protection. (People v. Taylor, supra, 31 Cal.3d at pp. 494, 495; see Estelle v. Williams, supra, 425 U.S. at pp. 504-506.) Accordingly, when such error occurs, its effect must be assessed against the "harmless-beyond-a-reasonable-doubt" standard of Chapman, supra, 386 U.S. at page 24 (People v. Taylor, supra, at pp. 499-500), and the error is not automatically cured by the giving of an instruction that the jury is not to be influenced by the fact of the defendant's arrest (id. at p. 501; cf. People v. McDaniel (2008) 159 Cal.App.4th 736, 746-747).
The foregoing cases, however, all deal with situations in which the defendant appeared in jail clothing (or shackles) before the jury throughout the trial. This fact is significant. As the United States Supreme Court stated: "[T]he constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment. The defendant's clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play. [Citation.]" (Estelle v. Williams, supra, 425 U.S. at pp. 504-505, italics added.) In the present case, by contrast, while there can be no doubt that the prosecutor erred by displaying the photograph (see People v. Bradford (1997) 15 Cal.4th 1229, 1336-1337), the jury saw it for at most a few minutes. While we have not found (or been cited to) any California cases dealing with a jury's brief viewing of a defendant in jail garb, the California Supreme Court has held on a number of occasions that prejudicial error does not occur merely because jurors briefly see a defendant in shackles. (E.g., People v. Ochoa, supra, 19 Cal.4th at p. 417; People v. Tuilaepa (1992) 4 Cal.4th 569, 584, affd. sub nom. Tuilaepa v. California (1994) 512 U.S. 967; People v. Duran, supra, 16 Cal.3d at p. 287, fn. 2.) The Ninth Circuit Court of Appeals has similarly so held. (E.g., Ghent v. Woodford (9th Cir.2002) 279 F.3d 1121, 1133.) Other states have found no prejudice arising from the brief sight of a defendant in jail garb. (E.g.,
State v. Taylor (Tenn.2007) 240 S.W.3d 789, 794-796; State v. Schaller (Wis.App.1995) 544 N.W.2d 247, 256-257; but see Ex parte Clark (Tex.Cr.App.1977) 545 S.W.2d 175, 176-177 .)
We are at a loss to understand why a prosecutor would run the risk of showing such a photograph to the jury when it had not been admitted into evidence. Nevertheless, we have no trouble concluding the incident was not prejudicial in and of itself. Jurors saw the picture for a matter of minutes in a trial that lasted months. Jurors were instructed, both at the outset of trial and at the conclusion of evidence, on the presumption of innocence and that they were not to be biased against defendants because they had been arrested. Jurors are presumed to follow instructions (Weeks v. Angelone (2000) 528 U.S. 225, 234), and in light of the brevity of the incident here, we have no reason to conclude they did not (compare People v. Taylor, supra, 31 Cal.3d at p. 501; People v. McDaniel, supra, 159 Cal.App.4th at pp. 746-747). This is especially true since the trial court chastised the prosecutor in front of them. (See People v. Kennedy, supra, 36 Cal.4th at p. 625.) Significantly, by the time the photograph was shown, Nichols's and Trice's attorneys had already questioned Detective Blake about whether appellants were wearing red jumpsuits and shackles at the preliminary hearing. Even assuming, to the extent they gave it any thought at all, jurors would not have simply presumed appellants were in custody, given the severity of the charges against them—which seems unlikely—they would already have learned appellants were in custody at some point. Under the circumstances, a brief visual confirmation of that knowledge cannot have abridged appellants' constitutional rights or prejudiced them. (See State v. Taylor, supra, 240 S.W.3d at p. 796; State v. Schaller, supra, 544 N.W.2d at pp. 256-257.)
B. Legal Sandards
It is clearly established federal law within the meaning of § 2254(d)(1) that a prosecutor's improper conduct violates the Constitution only if it so infects the trial with unfairness as to make the resulting conviction a denial of due process. Parker v. Matthews, - U.S. 132 S.Ct. 2148, 2153 (2012) (per curiam); see, Darden v. Wainwright, 477 U.S. 168, 181 (1986); Comer v. Schriro, 480 F.3d 960, 988 (9th Cir. 2007). Prosecutorial misconduct deprives the defendant of a fair trial as guaranteed by the Due Process Clause if it prejudicially affects the substantial rights of a defendant. United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988) (citing Smith v. Phillips, 455 U.S. 209, 219 (1982)). The standard of review of claims concerning prosecutorial misconduct in proceedings pursuant to § 2254 is the narrow standard of due process, and not the broad exercise of supervisory power; improper argument does not, per se, violate a defendant's constitutional rights. Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) (citing Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996)). This Court must thus determine whether the alleged misconduct has rendered a trial fundamentally unfair. Darden v. Wainwright, 477 U.S. at 183. It must be determined whether the prosecutor's actions constituted misconduct, and whether the conduct violated Petitioner's right to due process of law. Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000).
To grant habeas relief, this Court must conclude that the state court's rejection of the prosecutorial misconduct claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker v. Matthews, 132 S.Ct. at 2155 (quoting Harrington v. Richter, 131 S.Ct. at 767-87). In addition, the standard of Darden v. Wainwright is a very general one that leaves courts with more leeway in reaching outcomes in case-by-case determinations. Parker v. Matthews, 132 S.Ct. at 2155 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In determining whether remarks in argument rendered a trial fundamentally unfair, a court must judge the remarks in the context of the entire proceeding in order to determine whether the argument influenced the jury's decision. Boyde v. California, 494 U.S. 370, 385 (1990); Darden v. Wainwright, 477 U.S. at 179-82. In Darden, the Court considered whether the prosecutor manipulated or misstated evidence, whether specific rights of the accused were implicated, the context of the remarks in light of both parties' arguments, the instructions given by the trial court, and the weight of the evidence. Darden, 477 U.S. at 179-82.
C. Analysis
Here, the state court articulated legal standards that were consistent with clearly established federal law, and the state court reasonably concluded that it had been improper to display the photographs to the jury before the photographs were in evidence. However, the jury had already heard questioning by Petitioners' counsel concerning whether at the preliminary hearing the defendants had been wearing red jumpsuits and shackles. It was thus likely that the jury had already learned that at some point in the criminal proceedings, Petitioners had been in custody. Additionally, the jury's exposure to the photographic evidence was brief, and the jury was clearly admonished. Under these circumstances, the state court's rejection of the due process prosecutorial misconduct claim was not so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Further, there was no unreasonable determination of fact based on the record before the state court.
Accordingly, it will be recommended that Petitioner's claim of prosecutorial misconduct based on display of photographic evidence be denied.
D. Related Due Process and Equal Protection Claims
It is unclear whether Petitioner exhausted his state court remedies as to claims that the display of the photographs violated his rights to substantive due process of law and equal protection of the laws. Generally a habeas petitioner will not be afforded relief in the courts unless he has exhausted available state judicial and administrative remedies. Preiser v. Rodriguez, 411 U.S. 475, 494-95 (1973). However, a court may reach the merits of a claim in the absence of exhaustion where it is clear that the claim is not colorable. 28 U.S.C. § 2254(b)(2) (an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State); Granberry v. Greer, 481 U.S. 129, 134-35 (1987); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005).
Here, Petitioner's claims are without merit and should be denied. The substantive component of due process protects against governmental interference with those rights "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 324-25 (1937). It forbids the government to infringe fundamental liberty interests, such as the right to liberty, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Reno v. Flores, 507 U.S. 292, 301-02 (1993).
Here, the state court's ruling on the misconduct claim was based on a weighing of the various relevant components of the case that was within the state court's traditional and inherent powers to control trial proceedings. Further, the state court proceeded pursuant to regular, adversary procedures whereby the parties could advocate their interests and receive review. Petitioner has not shown that the procedures infringed a federally protected and fundamental right or operated too broadly beyond the ambit of the state's compelling interests.
The Fourteenth Amendment's Equal Protection Clause is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne, Tex, v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Petitioner can establish an equal protection claim by showing that he was intentionally discriminated against based on his membership in a protected class. See, Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Petitioner can also establish an equal protection claim by showing that similarly situated individuals were intentionally treated differently without a rational basis for the difference in treatment. See, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 601-02 (2008).
Here, Petitioner has not shown or even suggested how he suffered a violation of equal protection. Accordingly, Petitioner's substantive due process and equal protection claims should be denied.
VI. Prosecutorial Misconduct concerning Presentation of Evidence that the Trial Court Had Ruled Would Be Excluded
Petitioner argues that the prosecutor committed prejudicial misconduct and violated Petitioner's right to due process of law and a fundamentally fair trial guaranteed by the Fifth and Fourteenth Amendments when the prosecutor intentionally introduced a predicate acts chart and asked Petitioner on cross-examination if he had been convicted of attempted home invasion robbery in violation of the trial court's ruling that such a characterization of the prior offense would be excluded. (Doc. 1 at 5, 11-12.)
A. The State Court's Decision
The CCA addressed Petitioner's claim as follows:
2. Violation of Court Order
a. Background
In connection with the gang allegations, the prosecutor elicited testimony from Okamoto regarding appellants' criminal records. While showing Okamoto court records regarding one of Trice's convictions, the prosecutor asked, without objection: "And does it also show that he pled guilty to a violation of Penal Code Section 664 slash 213(a)(1), attempted home invasion robbery, and that he pled guilty on February 26th, 1996, for a crime that
occurred exactly one year earlier, on February 26th, 1995?" (Italics added.) Okamoto responded affirmatively. Later, the prosecutor brought up the admissibility of a chart in which he had summarized Okamoto's opinion as it related to predicate acts. Counsel for Trice objected to use of the term "attempted home invasion robbery" and argued that there was no such thing. Counsel for Nichols asserted that the actual crime was called attempted first degree robbery. The prosecutor agreed to reword the reference and print out another chart. The court agreed, and directed him to "stick with" what the code section said, i.e., attempted first degree robbery. FN60 The court subsequently confirmed, during a discussion of whether the chart would be admitted into evidence so it could be used in examination of the expert, that the conviction was to be listed as attempted first degree robbery. The prosecutor again agreed to submit a chart incorporating the change.
As set out in the statement of facts, ante, Trice testified on his own behalf. During cross-examination, the prosecutor asked about his felony convictions. This ensued:
FN60. The court was concerned with the similarity of the prior conviction to the charged offenses. During the course of trial, at least two witnesses used the term "home invasion" in referring to the present incident.
"Q. Were you convicted of attempted home invasion robbery or—
"MR. TRIMBLE: Judge, I'm going to object to that. Mr. Maner knows better than that.
"THE COURT: It's sustained. [¶] ... [¶]
"MR. MANER: Q. Where you attempted to—
"MR. TRIMBLE: Judge, I'm going to 352 this. He knows what he's entitled to ask and what he's not, and he's asking stuff he shouldn't go into.
"MR. MANER: That's not true, Judge. I think I slipped on the home invasion but—
"MR. CHASE: He did it again, Your Honor.
"MR. TRIMBLE: Gee, that's too bad, he did it again, Judge.
"THE COURT: The offense was 664/211, correct?
"MR. MANER: Yes, Judge—I think it's 213, actually.
"THE COURT: Let's go ahead and stick to that offense, then. And the jury's instructed to disregard the question."
The prosecutor then elicited from Trice his conviction for attempted first degree robbery. In his argument to the jury, the prosecutor referred to the current incident as "a home invasion robbery, a murder, a murder during the course of a robbery...."
Trice raised the prosecutor's asserted violation of the court's order in his new trial motion. Nichols joined. In its ruling denying the motions, the court concluded: "The matter was addressed at trial when it arose, and the Prosecutor claimed that these [references] were inadvertent, and the Court accepts this representation at face value. Viewing the trial process as a whole, the Court does not believe that the term was repeated so much that it rendered the proceedings fundamentally unfair or caused any confusion in the jury's mind between the prior and the charged offense."
Nichols and Trice now contend the prosecutor committed prejudicial misconduct by violating the court's order. We again agree that error occurred, but again conclude the incident was not prejudicial in and of itself.
(LD 3, 90-93.)
b. Analysis
Whether intentional or not, the prosecutor committed misconduct by violating the trial court's ruling that Trice's prior offense should be referred to as attempted first degree robbery. (See People v. Friend (2009) 47 Cal.4th 1, 33; accord, People v. Crew (2003) 31 Cal.4th 822, 839; People v. Ochoa, supra, 19 Cal.4th at p. 430.) However, jurors had already heard unobjected-to testimony that Trice pled guilty to attempted home invasion robbery;
the prosecutor's references were brief in a lengthy trial; the exchange between the court and counsel, which occurred in the jury's presence, made it clear the prosecutor's question was improper; and the jury was instructed to disregard the question. (See People v. Tafoya (2007) 42 Cal.4th 147, 180; People v. Montiel (1993) 5 Cal.4th 877, 931; People v. Pensinger (1991) 52 Cal.3d 1210, 1250-1251.) Under the circumstances, no prejudice appears.
B. Analysis
The state court reasonably applied the due process standards and properly concluded that the prosecutor's characterization and references did not render the proceedings fundamentally unfair. The trial court did not find that the violations were intentional. Further, it is undisputed that evidence of Petitioner's guilty plea to an offense expressly characterized as an attempted home invasion robbery was admitted without objection and was already before the jury. Petitioner had testified, and his criminal history had been presented both as impeachment and as background concerning his connection with the co-defendants and Collins. Given the state of the record, the limited mischaracterization of the prior offense was not so inflammatory as to infect the proceedings with unfairness.
The state court's decision was not an unreasonable application of clearly established federal law or an unreasonable determination of fact in light of the evidence before the state court. Accordingly, it will be recommended that Petitioner's claim of a due process violation from mischaracterization of Petitioner's prior conviction be denied.
VII. Violation of the Right to Present a Defense by Limiting Argument
Petitioner Trice argues that the trial court's prohibiting Petitioner Nichols's counsel from arguing that innocent people are sometimes convicted and from discussing literature and feelings regarding such convictions violated Petitioner Trice's rights to present a defense, to substantive and procedural due process of law, and to a fundamentally fair trial protected by the Fifth, Sixth, and Fourteenth Amendments. (Doc. 1 at 5, 12.)
A. The State Court's Decision
The CCA addressed Petitioner's claim as follows:
D. Restriction on Nichols's Argument to the Jury
Nichols and Trice contend the trial court committed federal constitutional error by excluding a portion of Nichols's argument to the jury. We conclude that any error was harmless.
1. Background
During his examination of Dr. Eisen, the defense expert on eyewitness memory and suggestibility, counsel for Nichols elicited that Eisen was aware of case studies involving situations in which people were convicted of crimes based on eyewitness identification, then were subsequently exonerated following DNA testing. Eisen described two bodies of data on the subject.
Counsel for Nichols subsequently argued to the jury that justice must be colorblind, and that jurors could not fill in the blanks for the prosecutor simply because Nichols might be a Black gang-banger from Pasadena. This ensued:
"[MR. CHASE:] People are convicted falsely. John Gresham [ sic ] wrote a book—
"MR. MANER: Objection, this is improper argument, judge.
"THE COURT: Sounds like it, Mr. Chase.
"MR. CHASE: No, it isn't, Your Honor. I can give you case authority, we're allowed to argue things that are relevant and before the people. And this is something that is common knowledge that the book is out—
"MR. MANER: Oh, Judge, some, some fictional book that's—
"MR. CHASE: It's not fictional, sir.
"MR. MANER: Or that is not in evidence in this case, Judge, is inappropriate.
"THE COURT: Mr. Chase, I'm going to sustain the objection. I don't think that novels are relevant.
"MR. CHASE: It's not a novel, Your Honor.
"THE COURT: Well, the objection is sustained.
"MR. CHASE: This is not a novel.
"THE COURT: It's sustained.
"MR. CHASE: Innocent people are convicted. Oftentimes those convictions are caused when officers have arrived at a conclusion and do the investigation based on the conclusion and not the evidence. They oftentimes do this, but with people that aren't particularly likeable. Gang-bangers. People who have mental problems. These are the easy targets.
People can come within—you know, you can have literally execution dates have been set—
"MR. MANER: Again, Your Honor, this is another inappropriate argument.
"THE COURT: That's sustained.
"MR. CHASE: Innocent people are convicted. If
you have these toxic elements present a little falsehood. Conclusion-based investigation. I believe in this system. I really do. It is the essence of what this country is all about. I was raised that way. My father fought in two wars—
"MR. MANER: Objection, Judge, Counsel's personal experiences, his family experiences, his personal opinion, is all irrelevant in a closing argument.
"THE COURT: I'm going to sustain that.
"MR. CHASE: This, ladies and gentlemen, is what makes our country great and worth fighting for. The quality [sic] under the law and the opportunity to have each one of you decide this case based on the law without prejudices."
Counsel for Nichols filed a written objection to the restriction on his argument, citing case authority supporting his claim that he should have been allowed to discuss John Grisham's book The Innocent Man (2006). The trial court declined to change its ruling.
(LD 3, 107-11.)
2. Analysis
"[C]losing argument for the defense is a basic element of the adversary factfinding process in a criminal trial" and the complete denial of an opportunity to make a closing argument is a violation of the constitutional right to counsel. (Herring v. New York (1975) 422 U.S. 853, 858-859, 863.) Similarly, a defendant's right to counsel is denied where the court seriously limits defense closing argument, as by precluding reference to an entire theory of defense (Conde v. Henry (9th Cir.1999) 198 F.3d 734, 739) or not allowing counsel to argue the significance of evidence critical to a theory of defense (United States v. Kellington (9th Cir.2000) 217 F.3d 1084, 1099-1100). "This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and
orderly conduct of the trial. In all these respects he must have broad discretion. [Citations.]" (Herring v. New York, supra, 422 U.S. at p. 862; see People v. Holloway (2004) 33 Cal.4th 96, 137.)
It has been stated that "[c]ounsel's summation to the jury 'must be based solely upon those matters of fact of which evidence has already been introduced or of which no evidence need ever be introduced because of their notoriety as judicially noticed facts.' [Citations.] He may state matters not in evidence that are common knowledge, or are illustrations drawn from common experience, history, or literature. [Citations.]" (People v. Love (1961) 56 Cal.2d 720, 730, disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 637, fn. 2.) Appellants point to a number of cases that have found particular magazine and newspaper articles to be appropriate subjects for closing argument. (See, e.g ., People v. West (1983) 139 Cal.App.3d 606, 610-611; People v. Guzman (1975) 47 Cal.App.3d 380, 392, disapproved on other grounds in People v. McDonald (1984) 37 Cal.3d 351, 362, fn. 8; People v. Woodson (1964) 231 Cal.App.2d 10, 15-16; People v. Travis (1954) 129 Cal.App.2d 29, 37-39.) While reflecting particularized exercises of judicial discretion under specific circumstances, these decisions do not stand for the proposition that attorneys may always refer to such items in closing argument. The trial court still retains discretion pursuant to section 1044 to limit counsel's argument under the circumstances of each case.FN66 (See People v. London (1988) 206 Cal.App.3d 896, 909.) "Counsel's summation to the jury must be based upon facts shown by the evidence or known judicially. [Citation.] Counsel may refer the jury to nonevidentiary matters of common knowledge, or to illustrations drawn from common experience, history, or literature [citation], but he may not dwell on the particular facts of unrelated, unsubstantiated cases." (People v. Mendoza (1974) 37 Cal.App.3d 717, 725 [trial court properly precluded defense counsel from reading newspaper clipping about unrelated crimes, hearsay material that could only confuse jury with irrelevant facts]; see also People v. Sanders, supra, 11 Cal.4th at pp. 554-555 [trial court properly precluded references to "notorious but unrelated" Manson case, but allowed defense counsel to argue in general terms that there were "'worse cases'" than defendant's in terms of number of victims and nature of crime]; People v. Pelayo (1999) 69 Cal.App.4th 115, 122 [trial court
properly restricted defense counsel's closing argument by prohibiting references to newspaper articles about individual who was acquitted of sex crimes against children when it was discovered children had fabricated their stories].)
FN66. Section 1044 provides: "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved."
Here, the trial court precluded defense counsel from citing to a particular book about an unrelated case and to his father's personal experiences, but did not limit counsel's argument on the crux of the defense theory: that people are wrongly convicted, and that appellants were equal under the law and had the right to a jury decision based on the law and not on prejudices. Counsel was thus allowed to fully address the relevant defense theory "in his own words without reference to supporting authorities." (People v. Guzman, supra, 47 Cal.App.3d at p. 392.) We find no abuse of discretion or denial of the right to counsel or to present a defense (see People v. Holloway, supra, 33 Cal.4th at p. 137; People v.. London, supra, 206 Cal.App.3d at p. 909); moreover, were we to find error, it necessarily would be harmless (People v. Guzman, supra, at p. 392).
B. Analysis
The Due Process Clause of the Fourteenth Amendment and the Compulsory Process and Confrontation clauses of the Sixth Amendment guarantee a criminal defendant a meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986). The opportunity to make a summation of the evidence before the rendition of judgment is an essential component of the right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. Herring v. New York, 422 U.S. 853, 862-63 (1975) (state statute permitting a judge in a non-jury criminal trial to prohibit counsel from making a summation of the evidence before the rendition of judgment violated the right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments).
In Herring, the Court recognized that the right to the assistance of counsel means that " there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments." Id. at 857. The Court stated the following:
The right to the assistance of counsel has thus been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process.Id. at 858-59. The Court added the following qualification:
There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge. (Footnote omitted.) The issue has been considered less often in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense. (Footnote omitted.)
This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The(Id. at 862.)
presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion. See generally 5 R. Anderson, Wharton's Criminal Law and Procedure s 2077 (1957). Cf. American Bar Association, Project on Standards for Criminal Justice, The Prosecution Function s 5.8, pp. 126—129, and the Defense Function s 7.8, pp. 277—282 (App.Draft 1971).
Here, counsel for Petitioner Nichols had argued that Tatum had perjured herself and that Brocchini had given perjured testimony as to the source of some evidence; counsel then argued that perjury was offensive in all circumstances. (LD 39, 19 RT 4741-42.) He then reinforced that point by arguing that all defendants, regardless of race, place of residence, or gang affiliation, were entitled to justice and equal protection under the law. He was permitted to argue that innocent people are convicted often because of investigations based not on evidence but rather on conclusions and bias, particularly where the accused are gang-bangers, people with mental problems, or other "easy targets." (Id. at 4742-43.) He extolled the value of equality under the law and the opportunity to have each juror decide the case based on "the law without prejudices." (Id. at 4744.) It was only when counsel appeared to refer to specific cases of innocently convicted persons, or to counsel's belief and to his father's wartime service-—matters that were not in evidence or directly relevant--that the trial court foreclosed the argument.
Reference to the entirety of the parties' closing arguments shows that defense counsel argued that the process of determining the facts should be guided by the evidence and the applicable law and should not be driven or affected by bias, racism, or antipathy toward gang culture. Petitioner's counsel's argument included the possibility of being falsely accused and the protection afforded by the requirement of proof beyond a reasonable doubt with respect to guilt of the crimes and reliance on circumstantial evidence. (Id. at 4792-96.) Petitioner's counsel emphasized the duty to judge Petitioner fairly, to "recognize biases and avoid making snap judgments," especially as to persons not in the jurors' immediate circles, and particularly with respect to Petitioner, who was a Black person with a history of selling drugs and having done some bad things in his life. (Id. at 4796-97.) Petitioner's counsel also referred to a seminar he had recently attended concerning race in the community, and he reminded the jury that there continued "to be an association, believe it or not, between black males and criminal behavior." (Id. at 4798.) The trial court ruled that this argument was proper and that counsel was entitled to some leeway. (Id.) Petitioner's counsel emphasized that the association continued to be pervasive in the community, stating: "And whether conscious or unconscious, I wish you to put aside the color of Mr. Trice's skin and view him simply as another human being during your deliberations," and counsel quoted Frederick Douglas with respect to equality under the law. (Id.) Dean's counsel also argued extensively on the burden of proof (e.g., id. at 4817-18), referred to specific, notorious crimes where white perpetrators had falsely accused Black persons of having committed the crimes in question, and noted how racism affected the investigation and trial of offenses (id. at 4915-18).
In sum, the state court articulated correct legal standards and reasonably concluded that the trial court's ruling was within the Court's considerable discretion to limit argument to the evidence and to avoid confusion. Counsel were permitted to engage fully as advocates during argument. The record shows that defense counsel challenged the sufficiency and accuracy of the investigation of the crimes and the credibility of prosecution witnesses, including law enforcement witnesses. Defense counsel were permitted to engage in substantial argument regarding false accusation and biased investigation; counsel were not foreclosed from arguing any defense or defensive theory. There was extensive and essentially unlimited defense argument regarding proof beyond a reasonable doubt and the presumption of innocence.
In light of the record, it cannot be said that the state court's conclusion was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Likewise, it cannot be concluded the state court's decision was based on an unreasonable determination of fact. Accordingly, it will be recommended that Petitioner's claim concerning limitation of defense argument be denied.
VIII. The Trial Court's Failure to Grant the Defense Motion to Bifurcate the Gang Enhancements
Petitioner Trice argues that the trial court's denial of the defense motion to bifurcate the gang enhancements violated Petitioner's rights under the Fifth and Fourteenth Amendments.
Petitioner points to the trial court's later findings that it was questionable whether the prosecution had proved that the offenses were gang-related, the absence of evidence of gang signs or clothing and the location of the crimes outside of the gang's territory, and the prosecution's introduction of multiple items of inflammatory evidence, such as tattoos, crimes of which Petitioner Nichols had been acquitted, past convictions of various people, and parole proceedings, which were otherwise irrelevant and inadmissible. (Doc. 1 at 6, 12-13.)
A. The State Court's Decision
The pertinent portion of the CCA's decision is as follows:
A. Bifurcation of Gang Allegations
Appellants contend the trial court abused its discretion by refusing to bifurcate the gang allegations. We conclude reversal is not warranted.
1. Background
Brocchini was the prosecution's gang expert at the preliminary hearing, although he conceded that he had no expertise specifically in Southern California gangs. Ruiz was known to Brocchini to be a member of the West Side Boyz, a criminal street gang whose primary activity was selling drugs. In Brocchini's opinion, Ruiz was a shot-caller for the gang.
Brocchini related that, upon receiving anonymous information giving the names Bam and Nichols and that the person was from Pasadena, he contacted Roger Roldan, a gang expert for the Pasadena Police Department. Roldan identified Nichols as Bam. Brocchini also gave Roldan the name J Dogg, which he got from Phil Collins, and asked Roldan to help put together a photographic lineup. Brocchini contacted Agent Mandenlian, a parole agent on the fugitive task force, and informed him of the
situation. Mandenlian said he would arrest Nichols for Brocchini. Brocchini then went to Pasadena and, Roldan having figured out J Dogg's identity, a photographic lineup containing Dean's picture was put together. This was transmitted to Detective Blake, who obtained a positive identification of Dean as one of the perpetrators.
After getting anonymous information that the perpetrators were Pasadena Denver Lane Blood members, Brocchini spoke to Roldan and Mandenlian about that gang, and also researched it through the Cal Gang Network, a system that allows agencies throughout California to input information about gangs. He spoke to Nichols's parole officer and learned that Nichols had identified himself as a PDL member. He also spoke to Carla Galbreath when he was looking for Dean; she said she associated with PDL members, and identified Dean and Trice as PDL members. Brocchini also spoke with Trisha Lee, Trice's girlfriend. She stated that Trice had been a PDL member for as long as she had known him, and that she gave him money each month so that he did not have to commit crimes with other gang members.
Based on information he obtained, Brocchini opined that PDL was a criminal street gang as of the date of the Ruiz homicide, and that appellants were PDL members. He further opined that the primary activities of PDL were selling narcotics, assault with firearms, robbery, and murder. With respect to the present case, Brocchini opined that the crimes were committed for the benefit of PDL. He based his opinion on experience talking with gang members; the only way they can gain weapons is by stealing them, and any other stolen property, such as cocaine, they could sell in their own territory to make money, which would benefit the gang. The fact the perpetrators came into town unmasked and armed, then committed a violent act in another town, would benefit PDL's reputation. Brocchini conceded that, in order to create the perception in people's minds that a gang is expanding its sphere of influence and is to be feared, the gang members would have to identify themselves as belonging to that particular gang so people will know who committed the crime. He was unaware of anything in the facts of the present case in which any of the participants identified themselves as gang members to the victims.
At the conclusion of the preliminary hearing, the magistrate found "strong evidence" to sustain the gang enhancement allegations. Appellants were held to answer accordingly.
Prior to trial, appellants moved to have the gang enhancement allegations bifurcated, on the ground the gang evidence would have a prejudicial effect and would deprive them of due process and a fair trial. The People opposed the motion, arguing bifurcation was unwarranted because the gang enhancements were inextricably intertwined with the charged offenses and evidence of appellants' gang activities and membership was important to demonstrate their motive for the robbery. The trial court denied the motion.
In ruling on appellants' motions for new trial, the trial court found various problems with respect to the gang testimony. In light of these problems, which included the fact that "there was plentiful evidence of gang membership, but scant evidence of gang benefit," the court ordered the jury's true findings on the section 186.22, subdivision (b) enhancements stricken as to each count.
(LD 3, 45-55.)
2. Analysis
In People v. Hernandez (2004) 33 Cal.4th 1040, the California Supreme Court held that a trial court has discretion to bifurcate trial on a gang enhancement. (Id. at p. 1049.) The court cautioned that bifurcation will sometimes be appropriate: "The predicate offenses offered to establish a 'pattern of criminal gang activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, at p. 1049.)
In cases where a gang enhancement has not been alleged, the state high court has "held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. [Citation.] But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the
defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like— can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.] [¶] Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself— for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation." (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) In sum, "the trial court's discretion to deny bifurcation of a charged gang enhancement is ... broader than its discretion to admit gang evidence when the gang enhancement is not charged. [Citation.]" (Id. at p. 1050.)
Gang evidence has an inherent potential for prejudice; it "creates a risk that the jury will infer that the defendant has a criminal disposition and is therefore guilty of the charged offense...." (People v. Samaniego, supra, 172 Cal.App.4th at p. 1167.) Yet, an allegation under section 186.22, subdivision (b) is a separate enhancement allegation, not a substantive crime. The extent to which a crime is committed to benefit a gang does not bear, in and of itself, on the issue of guilt or innocence of the underlying offense. Similarly, whether a defendant belongs to a gang does not prove guilt. "Nonetheless, evidence related to gang membership is not insulated from the general rule that all relevant evidence is admissible if it is relevant to a material issue in the case other than character, is not more prejudicial than probative, and is not cumulative. [Citations.]" (People v. Samaniego, supra, 172 Cal.App.4th at p. 1167.)
In our view, because of the potential for prejudice inherent in gang evidence, absent some showing the gang evidence is probative as it pertains to the issue of guilt of the underlying crime, failure to bifurcate is necessarily error. If the gang evidence (whether it be the defendant's association with a gang or some other aspect) is not at least minimally probative with respect to a
charged offense, bifurcation should be granted. There must be something more than guilt by association or propensity.
The basic issues thus are relevance and prejudice, and they are inextricably intertwined. Questions the trial court should consider in determining the need for bifurcation include: Does anything about the crime reasonably suggest gang involvement or motive, even without a gang expert's interpretation? If the gang enhancement allegations were to be bifurcated, would at least some gang-related evidence likely be admitted in the trial of the substantive offense(s) anyway? If bifurcation is not ordered, what kind of evidence is likely to be admitted in support of the gang enhancements that is not probative of the charged crimes themselves, and how potentially inflammatory will that evidence likely be? For example, will evidence of the predicate acts or pattern of criminal gang activity involve crimes of violence much greater than any involved in the charged offenses, such that the jury will be likely to use it as bad character evidence against the defendant(s)?
Turning to the case before us, "[w]e review the correctness of the trial court's ruling at the time it was made,... and not by reference to evidence produced at a later date. [Citations.]" (People v. Welch (1999) 20 Cal.4th 701, 739; see People v. Turner (1984) 37 Cal.3d 302, 312 [addressing ruling on severance motion], overruled on other grounds in People v. Anderson (1987) 43 Cal.3d 1104, 1149.) Here, it was apparent from the evidence adduced at the preliminary hearing that, although there were no overt signs of gang involvement such as the flashing of signs or saying of a gang's name during commission of the charged offenses, some gang-related evidence would be admissible even in the event of bifurcation—for example, to explain how appellants were developed as suspects. There would also be evidence of more than one perpetrator acting in concert. The trial court reasonably could also have concluded the evidence related only to the gang enhancement allegations would not likely be more inflammatory than the facts of the charged offenses themselves. Under the circumstances, we cannot say the trial court's refusal to bifurcate "exceed[ed] the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.) Accordingly, the trial court acted within its discretion in denying the motions for bifurcation.
(People v. Hernandez, supra, 33 Cal.4th at p. 1051.) FN36
FN36. Two points warrant addressing. First, Dean cites People v. Partida (2005) 37 Cal.4th 428, 437 for the proposition that "[i]t is a violation of constitutional due process to erroneously introduce evidence of gang affiliation." Partida says no such thing. At issue in that case was "when, if ever, a trial objection on Evidence Code section 352 grounds preserves the appellate argument that admitting the evidence violated a defendant's federal due process rights and, if the argument is preserved, under what circumstances error of this nature does violate due process." (Partida, at p. 431.) At the page cited by Dean, the opinion discusses when an objection under Evidence Code section 352 is sufficient to preserve a due process argument for appeal. (Partida, at p. 437.) In fact, the California Supreme Court ultimately upheld the Court of Appeal's finding of no due process violation resulting from the erroneous admission of some of the challenged gang evidence. (Id. at p. 439.)
Second, Nichols appears to suggest that if the trial court abused its discretion, then its ruling necessarily violated the federal Constitution's guarantee of substantive due process. Even if we were to find an abuse of discretion, it would not necessarily follow that the error was of federal constitutional magnitude, and the authorities cited by Nichols do not hold otherwise.
This does not end our inquiry, however, since, by analogy to the law concerning severance (see People v. Hernandez, supra, 33 Cal .4th at p. 1050), even if the ruling denying bifurcation was correct when made, "[a]fter trial,... the reviewing court may nevertheless reverse a conviction where, because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law. [Citation.]" (People v. Turner, supra, 37 Cal.3d at p. 313.) Appellants argue that admission of the gang evidence resulted in such a level of unfairness here, thus violating due process.FN37
FN37. Appellants raised a due process objection
to the evidence during trial.
The record before us leaves no doubt that evidence came before the jury that was unnecessary and had a high potential for being inflammatory and prejudicing appellants. For instance, evidence of numerous criminal acts, committed or allegedly committed by appellants and other PDL members, was admitted to establish that PDL was a criminal street gang within the meaning of section 186.22, and that appellants were associated with the gang.FN38 While we recognize that the prosecutor had to prove beyond a reasonable doubt that PDL was a criminal street gang since appellants apparently would not stipulate to that fact, PDL's status as such was never seriously contested. Thus, there was no need for the prosecutor to introduce evidence of numerous predicate acts simply because subdivision (e) of section 186.22 refers to two or more offenses. Prosecutors have no right to overprove their case or put on every bit of evidence they have (People v. Williams (2009) 170 Cal.App.4th 587, 610), and the prosecutor's tactics here verged on overkill. While we cannot fault the introduction of evidence supporting the testimony of Officer Okamoto concerning what constitute PDL's primary activities, there is a fine line between evidence that constitutes legitimate proof of statutory elements or that demonstrates the basis for an expert's testimony, and evidence that constitutes illegitimate proof of guilt by association and bad character. It bears emphasizing that trial courts must be careful to use their powers under Evidence Code section 352 to limit the evidence to its proper purpose—establishing the existence of a criminal street gang—and not to permit a prosecutor, through the guise of establishing that fact, to seek to imply improperly to the jury that the gang is violent, therefore the defendant is violent, therefore the defendant likely committed the charged crime(s).FN39
FN38. The trial court instructed the jury on 10 specific instances of criminal conduct (including the charged robbery and murder) with respect to what constitutes a pattern of criminal gang activity.
FN39. That the prosecutor here paid scant, if any, attention to the line between legitimate and illegitimate proof is demonstrated by his
repeated attempts to present evidence of Nichols's and Trice's alleged involvement in the robbery and murder of a drug dealer in Madera. When the trial court denied his request to present the evidence on the issue of guilt pursuant to Evidence Code section 1101, subdivision (b), the prosecutor attempted to bring it in as a predicate act —despite the fact numerous predicate acts had already been introduced—and to show appellants were active gang members, associated with each other, and committed a crime for the benefit of a gang. In light of the obviously high potential for prejudice, the trial court again excluded evidence of the facts of the offenses, this time pursuant to Evidence Code section 352, and only allowed evidence of the resulting attempted robbery and assault convictions. This did not stop the prosecutor from trying to place before the jury evidence that Nichols was suspected of involvement in another homicide, again ostensibly to show that Nichols was associating with other criminal gang members committing crimes. After commenting, "This isn't just to show—to try and make him out to be a bad character, I take it," the court sustained the defense objections.
Although we will discuss the prosecutor's conduct elsewhere in this opinion, perhaps the single most egregious example of his behavior occurred in connection with the gang evidence. Counsel for Nichols was cross-examining Okamoto concerning his reliance on an offense of which Nichols was acquitted. When Okamoto stated that the type of activity was very consistent with gang activity, counsel responded, "I see. Even if he didn't do it and was found not guilty because he wasn't the one." The prosecutor then stated: "Objection, that misstates the evidence. Just because he's found not guilty doesn't mean he didn't do it." (Italics added.) Regardless of the accuracy of the statement, to have made such a statement in front of the jury is unconscionable.
Despite the foregoing, we conclude that the erroneously admitted evidence was not, in light of all the circumstances and the record as a whole, so inflammatory and so lacking in probative value as to violate
appellants' right to due process, even given the trial court's comments about the sufficiency of the evidence in its ruling on the motions for new trial.FN40 The trial court was clearly aware of, and exercised, its authority to exclude cumulative and inflammatory evidence. (See People v. Williams, supra, 170 Cal.App.4th at pp. 610-611.) The court also required the prosecutor to have Brocchini testify regarding different areas than Okamoto and not simply go over the same ground. Brocchini acknowledged that gang members can commit crimes that are not for the benefit of the gang, and he gave an example from personal experience of a gang member who had been selling drugs for his own benefit, an offense that (unlike the domestic violence example Brocchini also gave) would often be perceived as benefitting the gang. He also testified that it is not a crime simply to be a gang member.
FN40. It necessarily follows that there was no prejudice under the state law standard of People v. Watson (1956) 46 Cal.2d 818, 836.
Significantly, Ruiz was himself shown to be a senior member of a gang and a large-scale drug dealer who cooked his product in, and apparently conducted at least some of his business from, the house in which his children lived. This served to neutralize at least some of the inflammatory effect of the gang evidence. (See People v. Sandoval (1992) 4 Cal.4th 155, 173, affd. sub nom. Victor v. Nebraska (1994) 511 U.S. 1.) Also neutralizing were the circumstances of the charged offenses themselves—a callous, violent, home-invasion robbery and murder in the presence of young children who were lucky not to have been injured or killed themselves. Although some of the predicate acts were violent, so were the charged offenses. Additionally, in light of the total absence of physical evidence of a shooting in Atwater, admission of the gang evidence had little or no effect on Trice's account of events. (Contrast People v. Avitia (2005) 127 Cal.App.4th 185, 194-195.) Appellants' arguments to the contrary notwithstanding, evidence of their guilt was very strong, and the gang-violence evidence was not pervasive. (Contrast People v. Maestas (1993) 20 Cal.App.4th 1482, 1498.) Moreover, the trial court instructed the jury that it could consider the evidence of gang activity only for the limited purpose of deciding whether a defendant acted with the intent, purpose, and knowledge required to prove
the gang-related crime and enhancement and special circumstance allegations that were charged, and it cautioned jurors that they could not conclude from the evidence that a defendant was a person of bad character or had a disposition to commit crimes. (See People v. Gutierrez (2009) 45 Cal.4th 789, 820.) "Jurors are routinely instructed to make... fine distinctions concerning the purposes for which evidence may be considered.... [Citation.]" (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Even where gang evidence is concerned, "[i]t is, of course, presumed the jury understood and followed the court's instruction in the absence of any showing to the contrary. [Citation.]" (People v. Williams, supra, 170 Cal.App.4th at p. 613.) The record contains no such showing here.
Appellants cite People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), in which the appellate court found that the admission of gang evidence violated due process and rendered the trial fundamentally unfair. (Id. at p. 232.) The court summarized the law applicable to a due process claim as follows: "To prove a deprivation of federal due process rights, [a defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is... whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." [Citations.]' [Citation.]" (Id. at pp. 229-230, fn. omitted.)
With respect to the case before it, the court explained: "Certain gang evidence, namely the facts concerning the threat to police officers, the Mexican Mafia evidence and evidence identifying other gang members and their unrelated crimes, had no legitimate purpose in this trial. The trial court's ruling on the new trial motion in which it broadly concluded the gang evidence was admissible to prove motive and intent for the underlying charges was arbitrary and fundamentally unfair. As we have concluded elsewhere, the prosecution did not prove that this gang
evidence had a bearing on the issues of intent and motive. We thus discern 'no permissible inferences' that could be drawn by the jury from this evidence. [Citation.] From this evidence there was a real danger that the jury would improperly infer that whether or not Albarran was involved in these shootings, he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished. Furthermore, this gang evidence was extremely and uniquely inflammatory, such that the prejudice arising from the jury's exposure to it could only have served to cloud their resolution of the issues. In our view, looking at the effect of this evidence on the trial as a whole, we believe that this prejudicial gang evidence was '"of such quality as necessarily prevents a fair trial."' [Citation.]" (Albarran, supra, 149 Cal.App.4th at pp. 230-231, fns. omitted.)
As we have explained, some gang evidence would have been properly admitted even if bifurcation of the gang enhancement allegations had been ordered. We cannot say evidence of gang benefit was wholly lacking; expanding a gang's territory or demonstrating it can reach far beyond its home turf seems beneficial to us. Nor can we say the nature and quantity of the evidence was such that it must have affected jurors' resolution of the substantive issues. In sum, and in contrast to Albarran, this case does not "present[ ] one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered [appellants'] trial fundamentally unfair." (Albarran, supra, 149 California at p. 232.)
B. Analysis
A state court's procedural or evidentiary ruling may be subject to federal habeas review if it violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by admitting evidence so arbitrary or prejudicial that its admission rendered the trial fundamentally unfair and violated fundamental conceptions of justice. Perry v. New Hampshire, - U.S.-, 132 S.Ct. 716, 723 (2012); Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998); Jammal v. Van de Kamp, 926 F.2d 918, 919-20. (1991).
To the extent Petitioner's claim is considered a challenge to improper joinder of charging allegations, improper joinder does not, in itself, violate the Constitution; rather, misjoinder rises to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial. United States v. Lane, 474 U.S. 438, 446 (1986). Insofar as Petitioner raises a due process claim to the introduction of gang evidence, Petitioner is entitled to relief only if the evidence was so arbitrary or prejudicial that its admission rendered the trial fundamentally unfair and violated fundamental conceptions of justice. Perry v. New Hampshire, 132 S.Ct. at 723; Estelle v. McGuire, 502 U.S. at 67-69; Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Admission of evidence violates due process only if there are no permissible inferences that a jury may draw from it, and the evidence is of such quality as necessarily prevents a fair trial. Boyde v. Brown, 404 F.3d 1159, 1172-73 (9th Cir. 2005) (quoting Jammal v. Van de Kamp, 926 F.2d at 920).
Further, even the clearly erroneous admission of evidence that renders a trial fundamentally unfair may not permit the grant of habeas relief unless forbidden by clearly established federal law as established by the Supreme Court. Holley v. Yarborough, 568 F.3d at 1101. It is one matter to apply rules that are squarely established by the Court's holdings to the facts of each case, but it is another to extend it to new facts, which is required only if it is so obvious that a clearly established rule applies to a given set of facts that there could be no fairminded disagreement on the question. White v. Woodall, 134 S.Ct. at 1706.
The Supreme Court has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ, and absent such clearly established federal law, it cannot be concluded that the state court's ruling was an unreasonable application. Holley v. Yarborough, 568 F.3d at 1101 (citing Carey v. Musladin, 549 U.S. 70, 77 (2006)). The Court will proceed to consider more generally, in view of the unique totality of the circumstances of this case, whether the state court reasonably determined that Petitioner' due process right to a fair trial was not violated by the failure to bifurcate the proceedings and by the admission of the gang evidence.
Here, the gang evidence included information concerning the criminal history of not only Petitioners, but also third persons affiliated with Petitioners or with the gang. Gang expert Okamoto's opinion as to the primary activities of the PDL was based in part on the criminal convictions of a handful of PDL gang members that ranged from possession and sale of marijuana and cocaine, shooting at an inhabited dwelling, and assault with a firearm to robbery, armed robbery, kidnapping, and attempted murder, with some gang enhancements. (LD 31, 11 RT 2665-72, 2717-21.) Guilt by association was a possible inference.
Here, evidence of Petitioner's guilt was strong. As to Petitioner's criminal past, evidence of Petitioner's guilty plea to attempted home invasion robbery and other offenses was before the jury. Because Petitioner himself had committed the same offenses or similarly serious offenses, there was little risk that the trier would inappropriately ascribe a third person's level of criminality to Petitioner based on association alone. Thus, to a significant extent, the additional information about the criminal activity of those affiliated with the gang was not unduly prejudicial. The attempt to tie Petitioner Nichols to another murder of a drug dealer was inflammatory in nature and potentially prejudicial, but any injurious effect was reduced by limiting instructions. Further, the facts of the charged offenses and the strong evidence of the perpetrators' association for the purpose of committing violent crimes presented the trier with a much more direct and compelling basis for an inference of wrongful intent and guilty concerted action than the gang evidence.
Aside from its probative value with respect to the gang allegations, relatively extensive evidence of gang affiliation, association, and activity was relevant and material in various respects, including to the course of the investigation and development of the evidence, the perpetrators' identity, motive/s for the offenses, the interactions and communications among the perpetrators, modus operandi, the source and nature of the perpetrators' information concerning the victim, the history and origin of firearms involved in the charged offenses, and the credibility of Petitioner and Collins. Cf. Windham v. Merkle, 163 F.3d 1092, 1103-04. It was objectively reasonable for the state court to conclude that aside from the gang allegations, the gang evidence was relevant.
The state court's conclusion that the evidence was sufficiently probative and was not sufficiently prejudicial to render the proceedings unfair was also objectively reasonable. The circumstances of the offense support an inference that the offenses were undertaken at least in part to obtain resources for the gang, invoke fear in the gang and drug community, and demonstrate the reach of the gang beyond its turf. In light of the evidence in the record, the state court reasonably determined that the callousness and violence of the circumstances of the charged offenses, the victim's status as a senior gang member and large-scale drug dealer, the Petitioner's admitted criminal past, and the absence of any evidence of a shooting in Atwater all combined to reduce any prejudicial effect that Petitioner might suffer from the otherwise inadmissible gang evidence.
Finally, the jury was instructed to consider the evidence of gang activity only for the limited purpose of deciding whether a defendant acted with the intent, purpose, and knowledge required to prove the gang-related crime, enhancement, and special circumstances allegations that were charged. The jury was also cautioned that it could not conclude from the evidence that a defendant was a person of bad character or had a disposition to commit crimes. (LD 3, 54.) As a general proposition, jurors are presumed to follow the instructions given. See, Weeks v. Angelone, 528 U.S. 225, 234 (2000). It is generally presumed that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it unless there is an overwhelming probability that the jury will be unable to follow the court's instructions and a strong likelihood that the effect of the evidence would be devastating to the defendant. Greer v. Miller, 483 U.S. 756, 767 n.8 (1987) (quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987) and Bruton v. United States, 391 U.S. 123, 136 (1968)). Here, the state court reasonably relied on the presumption.
Under the circumstances, it cannot be said that there could be no fairminded disagreement on the weighing of the probative value and prejudicial effect of the gang evidence. The state court's decision was not contrary to, or an unreasonable application of, clearly established law. Further, in light of the evidence in the record, and considering the state court's comprehensive review of the circumstances, the Court concludes that the state court's decision did not involve an unreasonable determination of fact based on the evidence before the court.
Accordingly, the Court concludes that Petitioner has failed to show he is entitled to relief pursuant to § 2254(d) on his claim or claims concerning a violation of due process from the denial of his motion for bifurcation and the admission of gang evidence. It will be recommended that Petitioner's due process claims of fundamental unfairness regarding the failure to bifurcate be denied.
C. Related Substantive Due Process and Equal Protection Claims
It is unclear whether these issues have been preserved, but if so, Petitioner's substantive due process and equal protection claims concerning the bifurcation issue should be denied. The legal standards governing these claims have been previously set forth.
Here, the state court's bifurcation decision was based on the court's analysis of the pertinent legal factors, a process that was part and parcel of the state court's reserved and inherent powers to control the administration of justice and review trial court proceedings for fairness in the cases before it. Further, the state courts proceeded regularly by trial and motion proceedings in which the parties had an opportunity to be heard. Petitioner has not shown that the procedures infringed a federally protected and fundamental right or operated too broadly beyond the ambit of the state's compelling interests.
With respect to an equal protection claim, Petitioner has not shown any difference in treatment or intentional discrimination. Petitioner has not shown how he suffered a violation of equal protection.
Accordingly, it will be recommended that Petitioner's substantive due process and equal protection claims be denied.
IX. Trial Court Error in Admitting Evidence of Suggestive Identifications
Petitioner Trice argues that the trial court's admission of unconstitutionally suggestive identifications of Petitioner and his co-defendants Dean and Nichols made by Tatum and Roshyla Ruiz violated Petitioner's right to a fundamentally fair trial and due process of law guaranteed by the Fifth, Sixth, and Fourteenth Amendments. (Doc. 1, 6.)
Petitioner Nichols alleges that tainted identification procedures violated his right to due process. (Doc. 1, 6.) A. The State Court's Decision
The pertinent portion of the CCA's decision is as follows:
B. Identification Procedures
Appellants contend that impermissibly suggestive procedures violated due process and tainted various
identifications of them as the perpetrators. We conclude the identifications were properly admitted and that no due process violation has been shown.
1. General Legal Principles
" '[A] violation of due process occurs if a pretrial identification procedure is "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." [Citations.]'" (People v. Sanders (1990) 51 Cal.3d 471, 508; Simmons v. United States, (1968) 390 U.S. 377, 384.) A "defendant's protection against suggestive identification procedures encompasses not only the right to avoid methods that suggest the initial identification, but as well the right to avoid having suggestive methods transform a selection that was only tentative into one that is positively certain. [Citation.] While a witness is entitled to become surer of an identification, due process precludes the generation of that increased certainty through a suggestive [identification procedure]. [Citations.]" (Raheem v. Kelly (2d Cir.2001) 257 F.3d 122, 135.)
" ' "In deciding whether an extrajudicial identification is so unreliable as to violate a defendant's right to due process, the court must ascertain (1) 'whether the identification procedure was unduly suggestive and unnecessary,' and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances."' [Citation.]" (People v. Gonzalez (2006) 38 Cal.4th 932, 942; see Stovall v. Denno (1967) 388 U.S. 293, 302, overruled on other grounds in Griffith v. Kentucky (1987) 479 U.S. 314, 320-328.) "The cases hold that despite an unduly suggestive identification procedure, we may deem the identification reliable under the totality of the circumstances, after we consider such factors as the witness's opportunity to view the suspect at the time of the offense, the witness's degree of attention at that time, the accuracy of the witness's prior description, the level of certainty the witness expressed when making the identification, and the lapse of time between the offense and the identification. [Citation.]" (People v. Cook (2007) 40 Cal.4th 1334, 1354; Neil v. Biggers (1972) 409 U.S. 188, 199-200.)
The defendant bears the burden of demonstrating " 'that the identification procedure resulted in such unfairness
that it abridged his rights to due process. [Citation.]' [Citations.]" (People v. Sanders, supra, 51 Cal.3d at p. 508.) The defendant must show that the procedure was both unduly suggestive and unfair " 'as a demonstrable reality, not just speculation.' [Citation.]" (People v. Cook, supra, 40 Cal.4th at p. 1355.) Contrary to Nichols's statement that the standard of review is unsettled, "[w]e review deferentially the trial court's findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court's ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive." (People v. Gonzalez, supra, 38 Cal.App.4th at p. 943; People v. Kennedy (2005) 36 Cal.4th 595, 608-609.)
2. Tatum's Identification of Dean FN41
FN41. We assume appellants are not limited to challenging identifications of themselves, since, in light of other evidence linking them in commission of the crimes, the identification of one bolstered the prosecution's case against the others. (See People v. Sanders, supra, 51 Cal.3d at pp. 507-508.)
a. Background
While Detective Blake was interviewing Tatum shortly after the homicide, other officers were attempting to develop possible suspects. Brocchini put together a photographic array based both on physical descriptions given by Tatum and on persons who had been suspected of committing robberies in Modesto in the recent past. It did not contain appellants. Blake showed it to Tatum about 1:40 a.m. She was unable to pick out anyone. Brocchini subsequently gave Blake four more photographic lineups, which Blake showed to Tatum that afternoon. One of the lineups contained five photographs, while the others contained six each. None were of appellants. Tatum did not select anyone.
As the investigation focused on appellants, Blake obtained photographic lineups that included them. On the morning of March 7, 2002, he took People's exhibit 30-2, in which Dean's photograph appeared in the bottom right-hand corner, to Tatum's house to show her.FN42 Before showing her the photographs, Blake read her the standard so-called
SimmonsFN43 advisement that admonished her that the fact the photographs were shown to her should not influence her judgment, and that it was as important to free innocent persons from suspicion as to identify guilty parties.FN44 Tatum studied the photographs, then pointed to Dean's picture and said, " 'He's one of them. He was in my house.'" Tatum said he was the person who took her to the master bath to be with her children, and who watched over her during the incident. She also said he shot from the outside into the closet door in the master bedroom. Tatum looked at the photographs for about two seconds; there was no hesitation in her identification. At trial, Tatum confirmed that she recognized Dean when viewing the photographs.
FN42. Brocchini and Roldan put together this photographic lineup. Brocchini could not recall whether there were other pictures of Dean that could have been used, but believed he and Roldan used the most recent one Roldan had.
FN43. Simmons v. United States, supra, 390 U.S. 377.
FN44. Blake read the admonishment to Tatum directly from his card. At trial, he did not have the card with him and had to paraphrase.
Appellants objected to People's exhibit 30-2, arguing that the photographic lineup was suggestive because Dean's photograph stood out from the others due to the degree of brightness in the picture.FN45 Counsel for Dean described Dean's photograph as looking "like the only one for which a flash unit was used." The prosecutor responded that, although the flash "lit [Dean] up," the array was not unduly suggestive because all of the photographs were of similar-looking individuals. The trial court examined the exhibit and found that the faces and hairstyles were all fairly similar, and that all of the individuals had facial hair; with respect to differences, Dean's picture was brighter than the others, and he was the only person wearing a white shirt. The trial court concluded that, looking at the lineup overall, it was not "unfair or necessarily something that would lead to an improper identification or that would make [Dean] quicker to be chosen because of those differences"; hence, there was no due process violation.
FN45. Appellants first raised the objection during the course of Roshyla's testimony, which preceded that of Tatum. Our analysis applies equally to Tatum's and Roshyla's identifications and, to the extent appellants complain that Collins identified Dean from an identical photographic lineup (People's exhibit 30-1), also to his identification. We have no trouble resolving the question of reliability in favor of admission of Collins's identification of Dean, inasmuch as the record shows Dean was at his house off and on throughout the day on March 1, and also showed up at his house after Trice was shot. Under these circumstances, the record establishes that Collins's in-court identification was based on an independent recollection of Dean. (See People v. Contreras (1993) 17 Cal.App .4th 813, 821; People v. Phan (1993) 14 Cal.App.4th 1453, 1462.)
As set out in the statement of facts, ante, Tatum identified all three appellants at trial. She testified that she estimated she was at the doorway of the bathroom for around five minutes, and that about 10 minutes elapsed between when the intruders entered the house until Ruiz was shot.
b. Analysis
Appellants complain that the photograph of Dean contained in People's exhibit 30-2 stands out because it is brighter than the other photographs, and Dean is the only individual wearing a white shirt. They also contend that the fact a detective took the array to T atum's house in the middle of the day, four days after the homicide, implicitly telegraphed to her that there was a likely suspect in the lineup.
"To determine whether a procedure is unduly suggestive, we ask 'whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him.' [Citations.]" (People v. Yeoman, supra, 31 Cal.4th at p. 124.) We have examined the exhibit in question; all the photographs are of African-American males, generally of the same age, complexion, and build, and all with some sort of facial hair. Minor differences
in facial hair, hair style, background color, and image size do not make a lineup suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217; see People v. Holt (1972) 28 Cal.App.3d 343, 350, disapproved on other grounds in Evans v. Superior Court (1974) 11 Cal.3d 617, 625, fn. 6.) Similarly, a lineup is not made suggestive by the fact the defendant is the only participant wearing a certain type of clothing, at least where, as here, the clothing is neither distinctive nor does it match important elements of the description provided by the witness. (See Foster v. California (1969) 394 U.S. 440, 442-443; People v. Gonzalez, supra, 38 Cal.4th at p. 943-944; People v. Carter, supra, 36 Cal.4th at pp. 1162-1163; People v. Johnson, supra, 3 Cal.4th at p. 1217; Raheem v. Kelley, supra, 257 F.3d at pp. 134-135.) As for appellants' claim the circumstances under which the photographs were shown implicitly telegraphed to T. that there was a suspect in the lineup, " '[a]nyone asked to view a lineup would naturally assume the police had a suspect.' [Citation.] This circumstance does not render the lineup unduly suggestive. [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 699.)
This leaves us to consider the undeniable fact that Dean's photograph is brighter than the rest. Differences in images, such as discoloration, the size of the border around the photograph, and whether some images are glossy while others are not, are generally held to be "trivial distinctions [that] are immaterial. [Citation.]" (People v. Carter, supra, 36 Cal.4th at p. 1163; see, e.g., People v. Gonzalez, supra, 38 Cal.4th at p. 943; People v. Johnson, supra, 3 Cal.4th at p. 1217.) Here, Dean's photograph is only somewhat brighter than the photograph in the upper left-hand corner, and differences in photographic quality and lighting are apparent in all six photographs.
Even were we to find the photographic array somewhat suggestive, under the totality of the circumstances, and considering the factors set out in Neil v. Biggers, supra, 409 U.S. at pages 199-200, we find "no substantial likelihood" that Tatum (or Roshyla, for that matter) misidentified Dean when viewing the six photographs. (People v. Cunningham (2001) 25 Cal.4th 926, 990; People v. Sanders, supra, 51 Cal.3d at pp. 508-509; see People v. Phan, supra, 14 Cal.App.4th at p. 1462.) FN46 Accordingly, no due process violation [h]as been shown.
FN46. Appellants cite People v. Carlos (2006) 138 Cal.App.4th 907 as a case in which the conviction was reversed because the photographic lineup procedure was impermissibly suggestive, and analogize the lighting in Dean's photograph to the placement, in Carlos, of the defendant's name under his photograph. (Id. at p. 912.) Differences in lighting and photographic quality are much more likely to occur, and much harder to guard against, than the placement of a name under a photograph. In any event, the court in Carlos found a due process violation not only because the defendant's photograph was made to stand out from the others, but also because the method of labeling was unnecessary, the photographic array was not disclosed to the defense until the first day of trial, defense counsel's request for a brief continuance was denied, and none of the witnesses identified the defendant at trial. (Ibid.) Carlos is clearly distinguishable from the case at bench.
3. Roshyla's Identification of Dean
a. Background
At the time Blake read the admonishment to Tatum and showed her People's exhibit 30-2, he and she were at the dining room table. Roshyla and her brother were watching a videotape in the living room, just off of the dining area. The rooms are separated by a half wall and a step, so that the living room is about eight or nine inches lower than the dining room. The children were seated on a couch, facing the television, and appeared to be paying attention to it. The table where Blake and Tatum sat was about 20 feet away and behind the children. Blake was seated facing the living room, and he kept his eye on the children and paid attention to where they were while Tatum was looking at the photographs. When having different witnesses look at a lineup, Blake seeks to separate them so that they do not influence each other. He believed he was able to accomplish that in this instance. Generally speaking, the children were in a position in which they could not see what Blake and Tatum were doing. Blake did not believe the children could hear the exact words he and Tatum were using.
After Tatum finished looking at People's exhibit 30-2, she gave Blake a piece of evidence she had found. He and she were concentrating on that when Roshyla came up to the table and looked at the lineup, which was lying by T atum's hand. Roshyla pointed to Dean's picture and said, "'he was in my house.'" Roshyla told Blake that after she had crawled out of the bathroom window, she saw two groups of men run past her. Dean was in the first group. It did not strike Blake as odd that Roshyla used almost the same terminology as Tatum; in his experience, children mimic the type of language and grammar that their parents use or that they are around.
Appellants objected that Roshyla saw Tatum make the identification and made the same identification for that reason; accordingly, Roshyla's identification was tainted. The prosecutor responded that the identifications were made separately. The trial court ruled that the jury should determine, as part of the case, whether Roshyla was sufficiently isolated from Tastum's identification.
At trial, Roshyla testified that the man whose photograph she identified was the one who came into the room, went back out, and brought her mother in. She was "[r]eally sure" the man in the photograph was one of the robbers who was in the house that night. She also saw him again when she was on her way to the neighbor's house. He was one of the men by the fence. She saw him there for about 10 seconds. When shown People's exhibit 30-2 by the prosecutor, she identified the picture of Dean as being the person with the messed-up teeth who brought her mother into the room. She then identified Dean in court.
On cross-examination, Roshyla testified that at the time she was shown the photographs, she was told to pick out a person who looked like he had been in the house. The investigator and Tatum were present when Roshyla was shown the photographs, and Tatum was sitting next to Roshyla. Roshyla thought the investigator had already shown photographs to Tatum; she did not know whether Tatum had picked any out because Roshyla was not sitting next to Tatum the whole time. Instead, Roshyla was walking around the house and watching television. Roshyla was in the living room and Tatum's bedroom. A bar or divider separated the living room from the dining room, although Roshyla was tall enough to see over it. Roshyla testified
that she and Tatum talked about what happened on the night Ruiz was shot; however, Tatum only asked what Roshyla had seen, and did not tell Roshyla what she (Tatum) saw.
b. Analysis
Appellants contend Roshyla's identification of Dean was tainted by her having seen her mother make an identification of Dean. The record does not support a conclusion that Roshyla had any idea that Tatum had made an identification, let alone which photograph she chose. Under the circumstances, appellant has failed to show that the identification procedure was unduly suggestive or that Roshyla's identification of Dean was tainted. (See People v. Cook, supra, 40 Cal.4th at pp. 1354-1355; People v. Clark (1992) 3 Cal.4th 41, 136, fn. 17.) The jury was free to take the circumstances under which the identification was made, and Eisen's testimony, into account in determining the weight to give to Roshyla's identification of Dean.FN47
FN47. Significantly, the trial court instructed the jury that factors to be considered in assessing eyewitness identification testimony included "the testimony of any expert regarding acquisition, retention, or retrieval of information presented to the senses," "[w]ere the photographic and physical lineups fair and were they conducted in a fair manner[,]" and "[w]as the witness's identification the product of his or her own recollection[.]" (See People v. Ochoa (1998) 19 Cal.4th 353, 413, fn. 4.)
4. Tatum's Identification of Nichols
a. Background
On March 4, 2002, Detective Owen showed Tatum People's exhibit 32-2, a photographic lineup in which Nichols's picture appears in the number 3 position. He first gave her the Simmons admonishment, which in part explained that she was not obliged to pick out anyone, then asked her to think about the incident and focus on the suspect who was heavier set and older. Tatum said she could actually picture that person. She then looked at the photographs for 10 to 15 seconds and said that the skin tones of the suspect were lighter than those in the pictures. Owen then
asked if, other than the skin tones, any of the photographs looked similar. According to Tatum, she was able to eliminate all but photo 3 as not looking like anyone who was in her house. The complexion, cheeks, hairline, and "[e]verything" in that photograph was similar to one of the men who was in her house. She also specifically remembered the nose. She expressed a desire to be able to see a lineup in person. She wanted to see the full body of the man in photo 3, as she remembered him being heavy and having a potbelly or beer belly. She told Owen she recalled that his stomach jiggled when he moved, and he had a fat gut and fat sides.
A live lineup involving Nichols was conducted on May 2, 2002. Prior to the lineup, Tatum was admonished that she was not to assume that the person who committed the crime was among the group of individuals she would be shown, and that she was not obligated to identify anyone. At the lineup, she was shown six people. She identified Nichols. She also identified him (and the other appellants) at the preliminary hearing and at trial. There was no doubt in her mind once she saw Nichols in the live lineup that he was one of the people in her house. The individuals in the lineup were five feet 11 inches or six feet tall, except for one who was six feet four inches tall. Thus, none matched the description, height-wise, that Tatum gave in the first interview Blake conducted with her, in which she had described the person as having a light complexion and a beer belly, and being about five feet eight inches tall and 230 pounds. FN48
FN48. In Blake's opinion, Nichols had a medium complexion.
At trial, Tatum admitted having dated one of the participants in the lineup. She did not tell the officer that she recognized him. She did not think it was relevant, as she was looking for the person she saw in her home the night Ruiz died.
Appellants objected to the lineup as being inherently suggestive. The trial court overruled the objection.
b. Analysis
Relying in large part on the testimony of Dr. Eisen, an expert in eyewitness identification, appellants claim
Tatum's identification of Nichols was tainted. They point, inter alia, to the fact that Owen asked her whether any photographs looked similar to the suspect apart from skin tone, Nichols was the only person in the live lineup who had previously been displayed to Tatum in a photographic array, and one of the participants in the live lineup was several inches taller than the rest.
Contrary to appellants' apparent argument, Eisen's testimony permitted, but did not compel, a conclusion the identification procedures were impermissibly suggestive. "[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness—i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure." (People v. Ochoa, supra, 19 Cal.4th at p. 413.) In light of the fact differences in lighting and photographic quality can alter skin tones, we see nothing suggestive in what Owen said. Similarly, we find nothing suggestive in the state's apparent acquiescence to Tatum's request to see Nichols in a live lineup. "Due process does not forbid the state to provide useful further information in response to a witness's request, for the state is not suggesting anything." (Ibid.) That Nichols was the only participant common to both the photographic array and the live lineup does not render the identification procedures impermissibly suggestive or per se violate due process. (People v.. Cook, supra, 40 Cal.4th at p. 1355; People v. Wimberly (1992) 5 Cal.App.4th 773, 789.)
Appellants have failed to establish a violation of due process. The value of Eisen's testimony was properly left to the jury to determine.
5. Tatum's Identification of Trice
a. Background
When Brocchini created a photographic lineup for Trice, the only photograph of Trice he could find was from 1995. After Owen showed Tatum the photographic lineup that included Nichols's picture, he showed her People's exhibit 32-1, a photographic lineup in which Trice's picture appears in the number 5 position. Tatum looked at the lineup for 25 to 30 seconds and said that none of the people looked familiar. Owen observed, however, that she looked at picture 5 several times.FN49 Not wanting to
taint her identification by specifying the picture, he said that he noticed she kept looking at a particular photograph. She responded, "'Oh, you mean No. 5?'" He then asked why she looked back at that picture. She said the complexion, forehead, and hairline were the same, but she was not sure. She said she wanted to see the individual in person. Tatum told Owen that she could eliminate numbers 4 and 6 as not being the suspect, but none of the others.
At trial, Tatum recalled being able to eliminate all but number 5 as not having been in the house. She told the detective that number 5 looked like the person and that his features were very similar to what she had seen on one of the perpetrators. The main things were the forehead and hairline and the shape of the face. The complexion was similar, in that it was dark. Tatum told the detective that she wished she could do an in-person lineup, because she felt confident that she could pick out each individual in person. In person, she would be able to consider body type, height, and the way each stood.
FN4 9. Owen knew, when he displayed the photographs, that Trice was in the number 5 position.
(LD 3, 56-67.)
b. Analysis
Despite the lack of objection in the trial court, appellants now contend, again based on Eisen's testimony, that Tatum's identification of Trice was tainted because Owen made comments that steered her to focus on Trice's photograph. Assuming the issue is properly before us on appeal, through a claim of ineffective assistance of counsel or otherwise (see, e.g., People v. Williams (1988) 44 Cal.3d 883, 906-907; People v. Barber (2002) 102 Cal.App.4th 145, 149-150), we find no impermissibly suggestive procedure. Owen did not steer Tatum to focus on Trice's photograph; she had already demonstrated an interest in it beyond that which she showed concerning the other pictures, and he simply asked why. He did not improperly suggest anything. (See People v. Ochoa, supra, 19 Cal.4th at p. 413.) Once again, Eisen's testimony was properly left to the jury to assess.
To summarize, in no instance have appellants persuaded us that their rights to due process were violated. The trial court did not err in admitting the challenged
identification evidence.
B. Analysis
Due process of law requires suppression of eyewitness identification evidence "when law enforcement officers use an identification procedure that is both suggestive and unnecessary." Perry v. New Hampshire, 132 S.Ct. at 718, 724; Manson v. Brathwaite, 432 U.S. 98, 107-09 (1977); Neil v. Biggers, 409 U.S. 188, 196-98 (1972). An identification procedure is impermissibly suggestive when it emphasizes the focus upon a single individual, such as repeated presentation of a subject or gross disparities in appearance or other circumstances or behavior that direct attention to a particular subject, and thereby increases the likelihood of misidentification. United States v. Bagley, 772 F.2d 482, 492-93 (9th Cir. 1985) (citing Simmons v. United States, 390 U.S. 377, 382-83 (1968)).
It is not only the presence of improper state conduct in arranging and conducting the unnecessarily suggestive pretrial identification procedures, but also the reliability of the identifications that figures in the determination of whether evidence of the identification must be excluded. Manson v. Brathwaite, 432 U.S. at 100-14. Identification testimony is inadmissible as a violation of due process only if 1) a pretrial encounter is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, and 2) the identification is not sufficiently reliable to outweigh the corrupting effects of the suggestive procedure. Perry v. New Hampshire, 132 S.Ct. at 720.
In determining whether in-court identification testimony is sufficiently reliable, courts consider five factors: 1) the witness' opportunity to view the defendant at the time of the incident; 2) the witness' degree of attention; 3) the accuracy of the witness' prior description; 4) the level of certainty demonstrated by the witness at the time of the identification procedure; and 5) the length of time between the incident and the identification. Perry, 132 S.Ct. at 725 n. 5; Manson, 432 U.S. at 114; Neil, 409 U.S. at 199-200.
Here, the state court articulated standards consistent with clearly established federal law. The state court analyzed each identification and reasonably applied federal law.
No circumstances of suggestion or undue focus attended Tatum's identification of Dean at the March 7 photographic lineup. Instead, Tatum was given the Simmons advisement, her identification was made in a couple of seconds and without hesitation, and it proceeded from her observations of Dean during a period of at least five minutes when he took her to the bathroom and watched over her. It was objectively reasonably for the state court to conclude that the brightness of Dean's picture and his wearing a white shirt were not sufficient to make the procedure suggestive in view of the fact that the individuals shown were African-American males of generally the same age, complexion, and build, all with facial hair and with fairly similar faces and hairstyles; further, a white shirt was not distinctive or part of a description of the perpetrators' clothing. Tatum subsequently identified Dean at trial. The state court reasonably concluded that there had not been any impermissible suggestion. Further, the identification had been made with certainty and relatively soon after the crime by one who had a strong motive to attend to the robbers and who further had a substantial opportunity to view Dean at the murder scene. The state court reasonably concluded that there was no substantial likelihood that Tatum misidentified Dean during the photographic lineup.
Likewise, the state court's decision regarding Roshyla's identification of Dean did not involve an objectively unreasonable application of clearly established federal law or an unreasonable determination of the facts. In light of the testimony of Brocchini, Tatum, and Roshyla, the state court reasonably concluded that Roshyla had not been influenced by Tatum's identification of Dean. Further, Roshyla had a substantial opportunity to observe Dean in the house as the man who brought her mother into the bathroom and again had ten seconds to observe Dean as the man by the fence outside the residence. Roshyla's identification appears to have been spontaneous, and she was certain that Dean was the person with bad teeth who brought her mother into the bathroom. Roshyla also identified Dean in court. The state court reasonably concluded that Petitioner had not shown any undue suggestion or taint.
Petitioners have not shown entitlement to relief with respect to the state court's decision concerning Tatum's identifications of Petitioner Nichols at the live lineup on May 2, 2002, the preliminary hearing, and the trial. During the previous March 4 photographic lineup, Detective Owen's direction to Tatum to focus on the heavier and older suspect did not address any particular subject in the photographs, but rather an aspect of the charged offense; it was accompanied by the Simmons advisement. The query concerning similarity aside from skin-tone was not necessarily suggestive of a particular subject, and it was a logical question given the variability of tones and shades in photographic representations. A fairminded jurist could reasonably conclude that the photographic lineup was not suggestive. Tatum found that "everything" in the photograph of Petitioner Nichols, including complexion, cheeks, nose, and hairline, was similar to the perpetrator's, and she requested a live lineup.
Because Tatum requested the procedure, the live lineup was not necessarily suggestive. At the live lineup, she identified Petitioner Nichols without any doubt once she saw him, and the discrepancy in height given in Tatum's first description was not necessarily sufficient to question the reliability of her identification in light of her sure and specific recognition of the other physical features, such as the nose and belly. The state court reasonably concluded that Petitioners had not established impermissibly suggestive identifications.
Tatum's identificat ion of Trice was not impermissibly tainted by Owen's remark about his observation that she repeatedly looked at an unspecified photograph. Owen merely remarked about Tatum's own focus as distinct from communicating something that focused previously undirected attention. Tatum himself specified the photograph; noted similarity of complexion, forehead, and hairline; and expressed a desire to see the individual in person in order to eliminate uncertainty. Her identification at trial likewise was based on similarity of the forehead, hairline, face shape, and complexion. The state court reasonably concluded that there was no impermissibly suggestive procedure or substantial likelihood of irreparable misidentification. Further, because of the extensive opportunities for Tatum, Roshyla, and Collins to perceive the persons identified by them, it was objectively reasonable to conclude that under all the circumstances, the identifications were reliable.
In sum, Petitioners have not shown that the state court decision was contrary to, or an unreasonable application of, clearly established federal law, or that the state court's findings of fact were unreasonable in light of the evidence before it. Accordingly, it will be recommended that Petitioners' due process claims of impermissibly suggestive identifications be denied.
X. Ineffective Assistance of Counsel
Petitioner argues that his Sixth and Fourteenth Amendment right to the effective assistance of counsel was violated by trial counsel's failure to object to a suggestive identification by Tatum Ruiz and to the evidence of the officer's behavior that focused Ruiz's attention on Petitioner. (Doc. 1 at 6, 12-14, 6.)
The state court assumed that the due process claim concerning Tatum's identification of Petitioner was before it despite the absence of an objection, referring to an ineffective assistance of counsel claim. (LD 3, 67.)
To demonstrate ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments, a convicted defendant must show that 1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms in light of all the circumstances of the particular case; and 2) unless prejudice is presumed, it is reasonably probable that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).
As previously set forth, Petitioner has not shown that he is entitled to relief on his due process claims concerning the identifications. Because Petitioner's claims concerning the suggestive identifications were not meritorious, counsel was not required to object. Cf. James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (failure to raise the issue of sufficiency of the evidence is not prejudicial where there was overwhelming evidence of guilt; failure to make a motion which would not have been successful is not ineffective assistance of counsel). Further, because the state appellate court reached the merits of the identification claim/s without reliance on the absence of an objection, any failure of counsel to object to the identifications lacked any prejudicial effect.
In sum, Petitioner has shown neither substandard conduct nor prejudice. Petitioner has not established that he suffered a violation of the right to the effective assistance of counsel. Accordingly, it will be recommended that Petitioner's claim of ineffective assistance of counsel be denied.
XI. Rights to Confrontation and Cross-Examination
Petitioner argues that he suffered a violation of his Sixth Amendment right to confront and cross-examine witnesses when Dr. Lawrence was permitted to testify to the cause of death determined in an autopsy report authored by Dr. Rulon, who was unavailable due to absence from the county. Petitioner argues that the autopsy report was testimonial and that the testifying pathologist was not a percipient witness to the autopsy examination. (Doc. 1 at 6, 12-13.) Petitioner relies on Crawford v. Washington, 541 U.S. 36, 59 (2004), holding that testimonial statements of witnesses absent from trial may be admitted only where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the witness; and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), holding that notarized, sworn certificates of analysis prepared by laboratory analysts that under state law constitute prima facie evidence come within the core class of testimonial documents protected by the Sixth Amendment.
A. The State Court's Decision
In its decision, the CCA set forth the factual background as follows:
Dr. Rulon performed the autopsy on Ruiz. Detective Buehler testified that he attended the autopsy. Also present were a forensic photographer to document the autopsy procedure so that photographs were available if the case ended up going to court, and someone from the district attorney's office.(LD 3, 68-71.)
During the autopsy, Buehler observed three bullets being taken out of the body. One was taken from Ruiz's left pelvis, one from his left neck, and the third from his left armpit. Later that afternoon, Buehler was called back by Dr. Rulon and received a fourth bullet from her. Buehler, who the parties stipulated was an expert in identifying bullets, opined that the first three bullets came from a .22-caliber rimfire cartridge and would have been fired from the same type of firearm. The item he received from Rulon was a similar .22-caliber slug.
During trial, the prosecutor informed the court and defense counsel that Rulon had left the county and was unavailable to testify. As a result, the prosecutor intended to call Dr. Lawrence, her supervisor, to testify regarding her autopsy report, her observations, and various items of physical evidence. Appellants objected, citing Crawford v. Washington (2004) 541 U.S. 36
(Crawford). Following argument, and after reviewing People v. Beeler (1995) 9 Cal.4th 953 (Beeler), the trial court concluded that, as long as an appropriate foundation was laid, the autopsy report was admissible as a business record under Evidence Code section 1271. The court further determined that, assuming the proposed witness was trustworthy, testimony could be admitted from a doctor who did not perform the autopsy. Appellants argued that Beeler was no longer valid following Crawford, and that to permit a doctor to testify, without making an independent evaluation based on evidence other than the report, violated appellants' confrontation and due process rights. The prosecutor responded that the autopsy report was not testimonial and, hence, not subject to Crawford, and that in any event, I would be satisfied because the defense would be able to cross-examine Lawrence. The court declined to change its ruling.
Lawrence subsequently testified that he was a forensic pathologist, i.e., a doctor who performed autopsies for the purpose of determining cause and circumstances of death. Forensic pathologists look at deaths that are of interest in the legal system.
In 2002, Rulon was an employee of Delta Pathology, which Lawrence founded and owned. Technically, he was her boss. Rulon was a Board-certified pathologist and forensic pathologist like Lawrence, and she was fully experienced and performed throughout her employment in an exemplary fashion. Her reports followed Delta Pathology's protocol or procedure with regard to how autopsy reports should be prepared.
Rulon conducted an autopsy on Ruiz, and Lawrence reviewed her report. FN50 Such reports are made in the regular course of Delta Pathology's business. Lawrence also looked at the autopsy photographs and reviewed the investigative information about the general circumstances of the case. Based on those items, he formed the opinion that the cause of Ruiz's death was multiple gunshot wounds.
FN50. The trial court granted appellants a continuing objection on confrontation grounds.
Ruiz had a total of 11 entrance gunshot wounds on the body. Two were connected to one another, meaning he was struck nine, and possibly 10, times. Ruiz suffered
fractures of the facial skeleton, perforation of the lung, and abdominal organ injuries. There were five fatal wounds, meaning they hit vital organs and caused extensive hemorrhage or organ destruction that caused death. Any one of the five could have killed Ruiz, although with good medical treatment, it was within the range of possibility that any given wound would not have been fatal. If Ruiz had received all of the wounds within a relatively short period of time, such as a minute, it was doubtful, but possible, that prompt medical attention could have saved his life. Several of the wounds had a downward trajectory. A couple had stippling, indicating they were fired probably from a distance of a foot or less.FN51 If a bullet was not found within a wound, Lawrence could not tell the caliber of the gun. Generally speaking, Lawrence could not tell Ruiz's or the shooter's position just by looking at the wound, although it might be possible to say a certain position was consistent or inconsistent with a particular wound.
FN51. If someone were shot through a wall, there would normally not be stippling on the victim.
The mechanism of death was shock and hemorrhage. It was due directly and primarily to the gunshot wounds. There was no significant natural disease that could have caused death. Lawrence could say with medical certainty that Rulon's opinion was the correct one.
Appellants reiterated their confrontation objections to Lawrence's testimony in conjunction with the trial court's determination that the death certificate for Ruiz would be admitted into evidence. They raised them again when the subject of admission of the autopsy report arose. When the trial court wondered why the report was needed when Lawrence's testimony had been admitted, the prosecutor observed that in Beeler, both the report and the testimony were admitted. The prosecutor expressed concern with laying the foundation for admissibility of Lawrence's testimony. Upon learning that enlargements of the diagrams attached to the report had been admitted into evidence, the trial court declined to admit the autopsy report. Appellants then withdrew their objections to the report. After defense counsel conferred, and apparently speaking for all of them, Nichols's attorney said: "We are going to go ahead, Your Honor, on this one we would, without waiving our issues with respect to the right of
confrontation, we are—and in light of the testimony that was brought in by Dr. Lawrence, we withdraw our objection to receiving [the autopsy report]." Counsel explained: "The objection to the report was based on the denial of right of confrontation, and Dr. Lawrence was relying upon this report, Your Honor. We objected to any of his testimony and also objected to the admission of the report as a denial of confrontation. This Court has already, in essence, ruled against us on the issue of denial of confrontation. And since that ruling has, in essence, in my mind, already occurred, we are withdrawing our objection to the admissibility on all other grounds...." The prosecutor promptly withdrew the autopsy report, saying the defense could move it in on their own if they wanted. Counsel for Trice moved it into evidence without objection. When counsel for Nichols stated, "With the previous notation about the right of confrontation," the prosecutor responded, "Which is now waived." The court cautioned that if there was no objection to the report, it would come in without preserving anything for the appeal, then admitted the autopsy report into evidence.
In its decision, the CCA next traced the holdings of Crawford and its progeny as well as state court decisions interpreting the Supreme Court's cases. (LD 3, 72-79.) The CCA discussed Melendez-Diaz v. Massachusetts, 557 U.S. 129 S.Ct. 2527 (2009), which held that notarized certificates of analysis showing the results of forensic testing were testimonial for purposes of the Confrontation Clause. The CCA also reviewed at length the state court cases interpreting Crawford. The CCA concluded that even if testimony by Lawrence, who did not perform the autopsy but merely reviewed notes of Dr. Rulon, would ordinarily violate the Confrontation Clause, there was no prejudicial error in Petitioner's case. The court stated the following:
In the present case, with respect to the autopsy evidence, Lawrence did not simply testify as a proxy for Rulon. Instead, he reviewed the autopsy photographs in addition to her report, and was able to offer his own opinion concerning the severity of Ruiz's wounds and the cause of death, and as to whether Rulon's conclusions were correct. We need not decide whether these circumstances are significant, nor do we need to take sides in the debate over Geier or, for that matter, offer our opinion concerning the continued vitality of cases such as Beeler and People v. Clark, supra, 3 Cal.4th 41, at pages 158-159, which, like Beeler, deals with one physician testifying about the report of the physician who actually conducted the autopsy, and admission of that report as a public or business record: Assuming error, it did not prejudice appellants.(LD 3, 79-81.)
A violation of the confrontation clause is subject to harmless-error analysis under the Chapman standard. (Geier, supra, 41 Cal.4th at p. 608; People v. Mitchell (2005) 131 Cal .App.4th 1210, 1225 & fn. 42; see People v. Ledesma (2006) 39 Cal .4th 641, 709.) The question is whether we can find, beyond a reasonable doubt, "that the jury verdict would have been the same absent any error. [Citations.]" (People v. Harrison (2005) 35 Cal.4th 208, 239.)
The answer here is yes. With respect to the autopsy evidence, appellants not only withdrew their objections to admission of Rulon's report itself, but Trice actually moved it into evidence without objection from any other party. Once received without objection, the report was in evidence for all purposes. (See Wicktor v. Los Angeles County (1960) 177 Cal.App.2d 390, 406; People v. O'Brien (1932) 122 Cal.App. 147, 155; People v. Hickok (1921) 56 Cal.App. 13, 17.) Appellants could not affirmatively seek admission of the report while still preserving their Sixth Amendment objections thereto.
Once the autopsy report was in evidence, any error in admitting Lawrence's testimony cannot possibly have impacted the verdict, since the pertinent evidence was already before the jury in the form of Rulon's report. Moreover, appellants did not seriously dispute that Ruiz was shot to death or that he was shot multiple times.FN55 (See People v. Williams (1959) 174 Cal.App.2d 364, 391.) Berenice Sanchez, the Ruizes' neighbor, described seeing
Ruiz bleeding from the chest. The first officers on the scene testified that Ruiz had been shot and was bleeding profusely. Detective Buehler witnessed three .22-caliber slugs being recovered from Ruiz's body during the autopsy, including one from the neck. Neither the autopsy report nor Lawrence's testimony shed any light on whether Ruiz was shot by multiple firearms; Lawrence explained that unless a bullet was found in a wound, he could not determine the caliber of the gun.FN56 Testimony concerning the trajectory of the shots and stippling (or absence thereof) added little or nothing. Lawrence's testimony (based on the report) that Ruiz was six feet tall and approximately 240 pounds was elicited by Nichols and can only have been beneficial to him, as it enabled him to attack Tatum's identification of him as one of the perpetrators by suggesting he was about Ruiz's size and not around the five feet eight inches that was contained in Tatum's original description to police.
FN55. Indeed, Dean's attorney told jurors, in his opening statement, that Ruiz "ended up with a bunch of gunshot wounds to him that killed him," but that there was no physical evidence appellants were responsible.
FN56. In his argument to the jury, the prosecutor conceded that he could not say any particular defendant was the actual killer, or that, for example, Nichols had the .22, fired nine rounds, and those killed Ruiz.
The portion of the CCA's decision regarding ballistic or firearms evidence is omitted because the petition addresses only the admission of the evidence concerning the autopsy. (Pet., doc. 1 at 6, 12-13, 16-17.) The Court declines to decline to consider any new matter raised in the traverse. See, Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), cert. den., 514 U.S. 1026 (1995).
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B. Analysis
Here, the state court reasonably concluded that the law concerning a Confrontation Clause violation was unclear and uncertain. See Flournoy v. Small, 681 F.3d 100, 1005 (9th Cir. 2012). The CCA also properly determined that because Petitioner moved the autopsy report into evidence, the jury already had before it the totality of the absent pathologist's autopsy report and opinion. Petitioner thus suffered no prejudice from the testimony and opinion of Lawrence, who had formed his opinion and testimony in part on the autopsy report and was available for cross-examination. Further, as the CCA noted, Lawrence's testimony was not seriously disputed and was based on the report or opinion of the absent pathologist and also on the physical evidence and investigation as well as his observation of autopsy photographs and diagrams. To the extent Lawrence relied on the procedures documented by the absent pathologist in the report, Lawrence had independent knowledge of the procedures used in the laboratory and of the history and reliability of the absent pathologist.
Even if there is a violation of the right to confrontation under the Sixth and Fourteenth Amendments, the constitutional violation will not merit habeas relief unless the error had a substantial and injurious effect or influence in determining the jury's verdict. Fry v. Pliler, 551 U.S. 112, 119-20 (2007); Jackson v. Brown, 513 F.3d 1057, 1084 (9th Cir. 2008) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Here, Petitioner has not shown that any Confrontation Clause error had a substantial or injurious effect or influence in determining the jury's verdict (Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)), or that the state court's decision was contrary to, or an unreasonable application of, clearly established federal law.
Further, the facts in the instant case involve not one witness parroting the statements of another, but rather an expert opinion based not only on a third party's examination and report, but also on independent observation of documentation of the procedure by a forensic photographer, and on the evidence discovered in the investigation. Given these circumstances, the Court concludes that Petitioner has not shown that the state court's decision was based on an unreasonable finding of fact.
Accordingly, it will be recommended that Petitioner's claim of a violation of his rights to confrontation and cross-examination be denied.
XII. Multiple Grounds of Alleged Prosecutorial Misconduct
Petitioner argues that he was denied his right to due process of law and a fundamentally fair trial in violation of the Fifth and Fourteenth Amendments when the prosecutor engaged in fourteen separate instances of misconduct by representations made in the opening statement and final argument and by failures to correct inaccurate and misleading testimony by prosecution witnesses. (Doc. 1, 7.)
Petitioner Nichols mounts a similar but more limited challenge based on the prosecutor's opening statement, presentation of evidence, and argument that telephone records linked Petitioner Nichols and co-defendant Dean during the time of the homicide. (Doc. 1, 40-42.)
A. The State Court's Decision
The decision of the CCA on these claims is as follows:
3. Presentation of Incorrect and Misleading Testimony and Argument
Appellants contend they are entitled to reversal because the prosecutor presented false and misleading information in his opening statement, presented and failed to correct inaccurate and misleading testimony, and then exploited the errors in his argument to the jury. We disagree.
a. Background
The errors claimed were all raised in appellants' motions for new trial and were rejected by the trial court, except to the extent they contributed to its decision to strike the gang enhancements. The errors claimed, and what the record shows, are:
(1) Appellants complain that in his opening statement, the prosecutor represented, over objection, that numerous telephone calls linked the telephones of Nichols and Dean during the time of the homicide.FN61 The prosecutor relied on the December 3, 2006, report of Detective Blake. In Blake's January 15, 2007, report, however, Blake related that the number originally attributed to Nichols was in fact that of Jennisha Johnson, a friend of Dean. As a result, appellants claim, it was unreasonable for the prosecutor to rely on the erroneous report. However, the prosecutor gave his opening statement on December 12, 2006, before Blake's second report. Moreover, Brocchini testified that the number in question was Jennisha Johnson's cell phone number, that he had called her on that phone, and that it was not Nichols's number, contrary to what was stated in Blake's report.
FN61. In his opening brief, Dean says it was claimed that Nichols's telephone number appeared on Collins's phone record. While he does not provide us with record citations to any testimony or pertinent remarks by the
prosecutor, he does quote the portion of the trial court's ruling on the new trial motions that dealt with the prosecutor's assertion, in opening statement, that Dean and Nichols made numerous telephone calls to other suspects in the case. Accordingly, we assume Dean's challenge is to the prosecutor's assertion concerning Nichols and Dean, not Collins.
(2) Appellants complain that Brocchini testified that Thomas White and Dupree Hull were associated with phone numbers found in Ruiz's cell phone records, and that the last call to Ruiz's cell phone was associated with White. Brocchini claimed that he relied on MPD records to link the telephone numbers, but subsequently admitted there were no such records and that documentation was limited to his handwritten notes. Those notes were not disclosed to the defense prior to trial. Appellants now say the failure of the prosecutor to give defense counsel the updated copy of Brocchini's report was a discovery violation, and Brocchini's conjecture that White and Hull were linked to the telephone numbers was without foundation. The record shows that, on cross-examination, counsel for Nichols asked what efforts Brocchini had made to link the telephone numbers obtained from Ruiz's cell phone. Brocchini responded that he ran them through a database in MPD. Brocchini conceded that, despite his 21 years of experience as a peace officer and his awareness of the reasons for writing reports, he did not provide one to the defense prior to trial, and in fact did not prepare a report until counsel requested one. Brocchini also admitted that when asked to back up the linkage between Hull and White and the numbers obtained from Ruiz's cell phone, he could not do so.FN62
FN62. At the hearing on the new trial motions, Brocchini testified that when he was preparing for his trial testimony, specifically cross-examination concerning telephone numbers found in the call log of Ruiz's cell phone, he saw some handwritten entries on one of his reports. Between his various testimony sessions, he was asked to do some research of MPD's database regarding the source of those notations. He discovered that the records, which were old, were gone. As a result, he gave what information he could remember from his investigation of the
case, which had occurred approximately five years before his actual testimony.
(3) Appellants complain that Brocchini testified that White and Hull were Blood gang members, and he suggested appellants could have obtained Ruiz's home address from one of them. After trial, field identification cards and Brocchini's 1998 report were disclosed, identifying Hull as a member of the Crip faction of the Oak Street Posse. Appellants say this was a discovery violation, and Brocchini's testimony that White and Hull were Bloods was without foundation. They also say the prosecutor, having stated in court that he previously prosecuted Hull for murder, knew or should have known Hull was a Crip and not a Blood.FN63
FN63. At the hearing on the new trial motions, Brocchini conceded that he testified at trial that Hull was a Blood, but in his 1998 report, Hull's name was on the Crip side of the OSP list. Brocchini explained that he had spoken to a lot of OSP gang members over the years, and that the older gangsters who had been around a long time were on the Blood side, while the younger ones who started coming up in around 1998 were on the Crip side. He knew that White was on the Blood side, and, because he thought about Hull as being one of the older members, was just going from memory and made a mistake.
(4) Appellants complain that in his closing argument, the prosecutor asserted that Dana Orent, the defense's gang expert, "defied police procedure" by stashing evidence in his garage. Appellants say the prosecutor misstated the evidence, because Orent did not "stash" evidence, but merely kept copies at his home for his own records. Appellants also note there was no evidence of police procedures, and they say the trial court erred by overruling their objection. In this regard, Orent testified that when he was asked by someone from MPD to review materials in connection with this case, he was no longer at the Pasadena Police Department. Orent termed himself "a pack rat" with respect to gang stuff, and explained that he had collected thousands of materials over the last 15 or 20 years. Whatever he would collect, including, for instance, photographs on the street, he would make copies of for his personal files. During the
course of the prosecutor's closing argument, the following took place:
"MR. MANER: ... The evidence that came into the courtroom in this case was that Mr. Orent did not send an index of where the evidence came from.... If he had said that, it would be easy for the detective to know, okay, this picture comes from this report. Orent never did that. In fact, Orent defied police procedure—
"MR. CHASE: Objection, Your Honor. Again. [¶] ... [¶] [H]e is again testifying, Your Honor. There's no evidence Mr. Orent in any way, shape or form did not follow police procedure. None. [¶] ... [¶]
"THE COURT: The objection's overruled at this point[.] It's within the evidence presented at the trial. Go ahead, please.
"MR. MANER: Okay. Police Procedure. Is it proper police procedure when you go on a search warrant and you find evidence, to take it home and stash it in your garage? Okay? Do you need a course in police procedure to understand that? [¶] But that's what Mr. Orent did. He testified [—]
"MR. MILLER: Objection, that misstates the testimony.
"THE COURT: It's overruled.
"MR. MANER: He testified that he and his partner found a roll of film and they developed it and they took it and he has all—he kept it in his garage at home, or maybe it was in his living room, I forget, he kept it at home. And he had other evidence from other crime scene searches of gang members at home, he had his own personal gang file. The appropriate thing for police officer to do when you get evidence of a crime.
"MR. MILLER: Objection.
"MR. MANER: You book it into evidence.
"MR. MILLER: Now counsel's testifying.
"THE COURT: I think this is within the common experience and common sense. [¶] ... [¶]
"MR. CHASE: He is misstating the evidence. Mr. Orent testified he made copies and put it in his file.
"MR. MANNER: Well, I guess we disagree about that, Judge. They'll decide ultimately.
"THE COURT: The objection is overruled. [¶] ... [¶]
"[MR. MANER:] Lost track of where I was. But the gist of it is Orent didn't follow traditional police procedures in cataloguing and keeping evidence. So why is it a surprise to anybody that he would know something no one else would know about where this evidence of J Dogg and these pictures came from? ... And he had his own personal stash of stuff."
(5) Appellants complain that during his closing argument, the prosecutor discussed why he decided not to use Orent as a prosecution witness at trial. Appellants say that, because no evidence was presented on this subject, the prosecutor offered his own unsworn testimony. They concede that the trial court sustained their objection, but claim this was not an adequate remedy. In this regard, Nichols's attorney argued to the jury that Orent furnished materials to the district attorney's office in connection with this case, but the district attorney's office decided for some reason not to use him as an expert witness and instead chose to use someone with considerably less experience. When Orent complained, the prosecutor sent him a letter during trial and told him, inter alia, that Orent did not have permission to discuss the matter with anyone outside the district attorney's office.FN64 In his closing argument, the prosecutor stated: "We heard a lot about our internal district attorney decision making process, which isn't in evidence, as far as whether we use Mr. Orent as a witness. And I'm not going to explain to you what decisions I make in terms of what experts I bring to court and what experts I don't, 'cause that's not something for you to focus on or consider about, and it's not evidence
in this case. [¶] But use your common sense. If you have police agencies that are involved in a case and you call up a sister agency ... and they say, Hey, we got a gang from your town that did a murder up here. Can you give us a cop to be a gang expert? Do you have someone who's an expert on this Pasadena gang? [¶] They go, Yeah, here's this guy, he works for us, he's our expert. At one point that was Dana Orent. The evidence shows he retired. He went out and now he's working for the defense attorneys, okay? In situations other than this one. So he's not free anymore. Police agencies will lend experts to other police agencies for free. We'll pay their hotel, we'll pay their travel and so forth, but we don't have to pay them thousands of bucks a day like Mr. Eisen here. [¶] So was there a shift in experts for accounting reasons, or to save money? That sounds like a logical reason as any." There was no objection from the defense until the prosecutor sought to counter the perceived argument that the prosecution did not use Orent as a witness because Orent said Dean was not a gang member, by arguing that there was a duty to turn over exculpatory evidence, and that the defense would have asked Orent about that. The court told the prosecutor that it did not want to get into arguing the law outside the case, whereupon the prosecutor asked jurors what they thought the defense's first question to Orent would have been if Orent had had the opinion that Dean was not a gang member. Defense objections were sustained.
FN64. In light of the letter, jurors were instructed: "If you find that the prosecutor told a witness not to speak with defense counsel, or attempted to dissuade any witness from talking with defense counsel, you can consider that fact in determining if the case has been proven beyond a reasonable doubt."
(6) Appellants complain that Brocchini erroneously testified that appellants repeatedly asked Collins where Ruiz lived. Appellants give no record citation to support this claim other than Trice's written new trial motion, which does not refer to the same pagination as the record on appeal. It is not this court's duty to comb the record for support for the parties' claims. We note, however, that on cross-examination, Dean's attorney asked Brocchini on what he based his testimony that Dean showed up with the others at Collins's house and asked where Ruiz lived.
Counsel commented, "I missed that in [Collins's] testimony." Brocchini replied that he based it on Collins's testimony. Brocchini clarified: "I said they all four showed up and it was mainly Trice that was asking for the hookup to [Ruiz]. 'I want to buy dope from [Ruiz], where does [Ruiz] live.' [¶] But they were all there together, and they were all trying to make contact with [Ruiz]." Appellants are correct that Collins did not testify exactly as recalled by Brocchini. Collins did testify, however, that when appellants were at his house, hanging out and drinking, he and Trice talked about "basically, you know, how to get some dope, where to get it, what kind, when can I hook them up, when can I go get it." Collins testified that Trice asked him a few times to hook him up with someone who had a quarter kilo of drugs. Trice was "basically" asking Collins if Collins could hook them up with Collins's connection. Trice wanted to know "[w]hen and where, what time."
(7) Appellants complain that Brocchini testified that Lisa Young testified concerning Trice's status as a gang member.FN65 Appellants contend Young did not so testify. They are correct; the question asked by the prosecutor and answered by Young was whether Dean ever told her he was a gang-banger.
FN65. Again, appellants provide no citation to the record supporting this assertion other than Trice's written new trial motion.
(8) Appellants complain that Brocchini testified that Dean admitted he was a gang member when he was booked into the jail following his arrest in this case. Appellants say there was no documentation of any such admission. In reality, counsel for Dean asked Brocchini whether he recalled testifying at the preliminary hearing that it was his opinion Dean was a gang member based on an admission made by Dean to jail staff. When Brocchini said he recalled the testimony, counsel asked him the basis for that opinion. Brocchini responded that he believed the arresting officer told him that Dean made the statement. When counsel asked the name of the officer, Brocchini responded, "I don't know. And that's why I never used it in my basis for opinion that he's a gang member in this jury trial." (Italics added.) When defense counsel asserted Brocchini did so at the preliminary hearing so that Brocchini got Dean to trial on gang allegations,
Brocchin responded, "Well, I stand by it. I was told by jail staff, or by an officer that booked him, that he said he was a gang member. And I—and I believe that happened. [¶] But you're asking who it was, I'm going to tell you I can't remember. And the person never wrote a report." Counsel then showed Brocchini a jail classification form signed by Dean, that Brocchini said he had never seen before. According to the form, Dean was asked by "S. Garcia," a clerk at the jail, whether he was affiliated with any gang. The checked box was "no." According to Brocchini, if Dean admitted to Garcia that he was a gang member, it would be on the form. Garcia was not the person who told Brocchini that Dean admitted being a gang member. Brocchini insisted that he was told by someone and believed it, but he could not find any documentation for it and so did not rely on it at trial.
(9) Appellants complain that Brocchini testified that a certain telephone number (626-212-9466) was associated with Trice. Appellants say there was no documentation to support the claim. Brocchini testified, however, that he reviewed certain cell phone records. Voluminous telephone records were disclosed to the defense. On cross-examination, it was brought out that on one of his reports, Brocchini listed a pager number as 626-212-9566. Brocchini testified that the correct number was 626-212-9466. He based this on Collins calling it from his house. Brocchini explained that when he interviewed Tricia Lee on March 8, 2002, she gave the number as 626-212-9566. Collins, however, called 9466. Brocchini was then shown Collins's telephone bill and admitted he had made a mistake, as the number was not there. Nevertheless, he said he believed the correct number for Trice's pager to be 626-212-9466. He subsequently explained that he got that number from Dean's telephone bill. Tricia Lee gave him the pager number as 9566; he did not know whether she did so intentionally or accidentally, as she gave it to him from her memory. Then, on Dean's telephone bill, Brocchini found 12 calls to 9466, the same number except for one digit.
(10) Appellants complain that Brocchini testified that a certain photograph of Trice was taken following a 1995 Merced arrest. Appellants say that in reality, Trice's last arrest in Merced was in 1992. Again, we have not been cited to any testimony in this regard, nor are we told why, considering what the jury learned about Trice's
criminal record, any such error was of any import.
(11) Appellants complain that Okamoto testified that Dean was arrested with Trice during a probation search. Appellants say Trice was not arrested at that time. Appellants have misread the record. In reality, Okamoto testified that Dean was seen entering a vehicle that then left a location law enforcement had under surveillance. The vehicle was stopped and Dean, who was a passenger, was arrested. Trice was also a passenger in the vehicle. The subjects in the vehicle were detained while a search warrant was executed at Dean's residence. There was no testimony that Trice was arrested.
(12) Appellants complain that Okamoto testified that a getaway vehicle was parked several blocks from the Ruiz residence. Appellants argue there was no evidence to support this assertion. They overlook the fact that Brocchini testified, earlier in the trial, that the trail of evidence was consistent with a getaway car being parked about a block from the Ruiz home. Moreover, the trial court admonished the jury that Okamoto's testimony concerned the predicate acts and not the charged offenses, and that Okamoto was not there to make the jury's decision as to whether or not certain things happened. The court also told jurors that if there was a question about whether the opinion was based on matters that actually did come into evidence, they could check the court reporter's record during deliberations.
(13) Appellants complain that Okamoto incorrectly testified that Trice had been convicted in 1995 for sale of cocaine base. Appellants note that the conviction was removed from the predicate acts chart, but complain that jurors were never admonished. Appellants do not cite us to where Okamoto actually testified about the conviction, although it is apparent from a discussion among counsel that took place outside the jury's presence, that the predicate acts chart had on it a drug conviction out of Los Angeles County to which Trice objected. As best we can determine, the prosecutor asked whether Okamoto was aware of a prior conviction of Trice that happened in Merced County in 1995, but the trial court ruled that the document being relied on was not necessarily one that an expert would rely on in forming an opinion. On cross-examination, Trice himself admitted to having suffered a conviction in 1995 for possession for sale of cocaine
base. In any event, although Trice's attorney said he thought somebody testified in front of the jury concerning the erroneous conviction, he also said he would take care of it in his own way.
(14) Appellants complain that the prosecution failed to disclose, until after trial, Brocchini's 1998 report, listing Collins as a member of the Blood faction of the Oak Street Posse criminal street gang.
(LD 3, 93-107.)
b. Analysis
With respect to alleged prosecutorial misconduct in general, " '[a] prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]" (People v. Hoyos, supra, 41 Cal.4th at p. 923.) A showing of bad faith is not required. (Id. at p. 924, fn. 36.) "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citation.]" (People v. Ochoa, supra, 19 Cal.4th at p. 427.)
With regard specifically to the presentation of, or failure to correct, false or misleading testimony, " Mu]nder well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted.' [Citations.] Put another way, the prosecution has the duty to correct the testimony of its own witnesses that it knows, or should know, is false or misleading. [Citations.] This obligation applies to testimony whose false or misleading character would be
evident in light of information known to the police involved in the criminal prosecution [citation], and applies even if the false or misleading testimony goes only to witness credibility [citations]. Due process also bars a prosecutor's knowing presentation of false or misleading argument. [Citations.] As [the California Supreme Court has] summarized, 'a prosecutor's knowing use of false evidence or argument to obtain a criminal conviction or sentence deprives the defendant of due process.' [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 716-717; accord, Napue v. Illinois (1959) 360 U.S. 264, 269 .) "When the prosecution fails to correct testimony of a prosecution witness which it knows or should know is false and misleading, reversal is required if there is any reasonable likelihood the false testimony could have affected the judgment of the jury. This standard is functionally equivalent to the 'harmless beyond a reasonable doubt' standard of Chapman [, supra,] 386 U.S. 18. [Citation.]" (People v. Dickey, supra, 35 Cal.4th at p. 909, italics omitted.)
We have already discussed the testimony concerning Collins's gang status, ante, and decline to revisit it here. Assuming false testimony was presented, we see no reasonable likelihood it could have affected the judgment of the jury, for the reasons stated in connection with appellants' claim of Brady error. This is so even assuming the claim here is one of intentional misconduct. (See People v. Hoyos, supra, 41 Cal.4th at p. 924, fn. 36.)
We have examined the record and conclude appellants have greatly overstated the effect of the remaining alleged errors. With the exception of Brocchini's testimony that Hull was a Blood and the prosecutor's argument concerning Orent, which we discuss post , either there was no actual error or the errors were of little import, whether considered individually or cumulatively. Prosecutorial misconduct in an opening statement is rarely grounds for reversal (see People v. Wrest (1992) 3 Cal.4th 1088, 1108; People v. Harris (1989) 47 Cal.3d 1047, 1080, disapproved on other grounds in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10); here, the prosecutor's misstatement with respect to the telephone calls was cured by the actual testimony on the point. Moreover, the trial court's instructions (which were given both before opening statements and again before closing arguments and which referred expressly and specifically to those statements
and arguments), that jurors could use only the evidence presented in the courtroom in deciding the facts and that nothing the attorneys said was evidence, were sufficient to dispel any prejudice. (See People v. Hinton, supra, 37 Cal.4th at p. 863.) The alleged errors that occurred during testimony were, almost without exception, corrected in front of the jury, or, when the claim was lack of foundation or documentary support for the testimony, that lack was brought to jurors' attention. While the prosecutor's duty to correct false or misleading testimony may not be discharged merely because defense counsel knows of, and the jury may discern, the error (U.S. v. LaPage (9th Cir.2000) 231 F.3d 488, 491-492; but see People v. Ervin (2000) 22 Cal.4th 48, 91-92 ), it would be illogical to conclude an error prejudiced a defendant merely because defense counsel, and not the prosecutor, was responsible for the error being corrected. What matters, in terms of potential harm, is whether the error was in fact corrected for the jury. The errors were corrected in the present case; moreover, a number of appellants' claims concern evidence presented in support of the gang allegations. The gang enhancements were stricken by the trial court in its ruling on appellants' new trial motions, and appellants fail to persuade us that this remedy was inadequate.
As for the erroneous testimony that Hull was a Blood, which was not corrected in front of the jury, appellants assert that Brocchini suggested appellants could have obtained Ruiz's home address from White or Hull, and not from Collins. The actual testimony was not nearly as clear on this point as appellants would have us believe. The prosecutor elicited from Brocchini that it was obvious to police Ruiz was a fairly prolific drug dealer and gang member. When the prosecutor asked whether that was common knowledge among people who were gang members, drug dealers, or customers, the trial court sustained a defense objection and directed the prosecutor to lay additional foundation. The prosecutor then asked whether, based on Brocchini's experience in narcotics cases and what he knew about Ruiz, Brocchini had an opinion as to whether Blood gang members or Nortenos out on the street would likely know that Ruiz would be a good source of rock cocaine. The trial court sustained a defense objection. The prosecutor then asked whether Brocchini was familiar with Ruiz's character as a drug dealer from 1995 to 2002. Brocchini said he was, and testified that Ruiz was not an "undercover drug dealer," but instead flaunted the fact,
driving a red Northstar Cadillac all over town and dressing in nice clothes. The prosecutor then asked whether Blood gang members would know that. The defense's objection, that the question called for speculation, was sustained. The prosecutor elicited that a lot of people in town who were involved in drugs or gangs were aware that Ruiz was a drug dealer. When he asked about Blood gang members coming from out of town and asking around for a good source, however, the trial court again sustained an objection that the question called for speculation. The prosecutor was permitted to elicit that Pasadena Bloods would associate with Modesto Bloods, as gang members from different towns often get to know each other in custodial settings, but another objection based on the question calling for speculation was sustained when the prosecutor sought to ask whether, if out-of-town gang members were in town looking for a narcotics source, Ruiz's name would come up. The prosecutor then left the subject.
It is apparent that the prosecutor was attempting to suggest appellants could have obtained Ruiz's home address from a source other than Collins, but it is equally apparent he was unsuccessful. The implication was contained in his questions, not Brocchini's answers, and jurors were instructed that questions were not evidence and not to assume something was true just because an attorney asked a question suggesting it was true. "Jurors are presumed to understand and follow the court's instructions. [Citation.]" (People v. Holt (1997) 15 Cal.4th 619, 662.) In light of the actual testimony and the evidence a number of people in town who were involved in drugs or gangs were aware Ruiz was a drug dealer, there is no reasonable likelihood any false impression created by Brocchini's testimony that Hull was a Blood could have affected the judgment of the jury, especially in light of Brocchini's admission that he could not back up the linkage between names and the numbers found in Ruiz's cell phone. (See People v. Dickey, supra, 35 Cal.4th at p. 910.) Appellants' claim the prosecutor knew or should have known Hull was a Crip does not help them; the record shows the prosecutor stated, without contradiction, that the case in which he prosecuted Hull for murder was not a gang-related case, and so he did not know whether Hull was a Crip or a Blood. We will not assume the prosecutor was lying.
We turn now to the prosecutor's argument concerning Dana
Orent. "Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 823.) A prosecutor " 'may "vigorously argue his case"'" (People v. Welch, supra, 20 Cal.4th at p. 752), but "[a] prosecutor's 'vigorous' presentation of facts favorable to his or her side 'does not excuse either deliberate or mistaken misstatements of fact.' [Citation.]" (People v. Hill, supra, at p. 823.)
We think there can be little doubt the prosecutor crossed the line from proper to improper argument when he asserted that Orent took evidence home and stashed it in his garage. Even assuming some aspects of traditional police procedure might fall within the realm of common experience, the prosecutor here completely misrepresented Orent's testimony by asserting that Orent took, kept, and withheld evidence. In reality, as defense counsel pointed out, Orent clearly testified that he made and kept copies in his files, and nothing in the record suggested otherwise. The prosecutor erred by making the argument, and the trial court erred by overruling the defense objections to it. We fail to see how appellants were prejudiced, however, since the prosecutor's misstatements concerned a witness and testimony that were relevant only to the stricken gang allegations.
With respect to the prosecutor's statements concerning why he did not use Orent as a witness, the record shows appellants did not initially object to the argument, nor, when they did object, was it on the ground the prosecutor was offering unsworn testimony. Accordingly, the issue has not been preserved for appeal. (See People v. Ochoa, supra, 19 Cal.4th at p. 427.) In any event, the prosecutor himself pointed out that why he used certain witnesses was not in evidence and was not something for jurors to consider, and, again, the argument concerning Orent only affected the gang allegations. There was no prejudice.
B. Analysis
The pertinent legal standards concerning prosecutorial misconduct have been previously set forth in connection with the claim concerning introduction of photographic evidence.
This Court must decide whether Petitioner suffered prejudice by determining whether the state court made an objectively reasonable decision when it concluded that there was no reasonable probability that the jury would have reached a different result without the offending comments. The Court must place the improper remarks in the context of the entire trial and should consider the weight of the evidence submitted against the Petitioners, the prominence of the erroneous comments in the entire trial, whether the prosecution misstated the evidence, any instructions to the jury to disregard the comments, whether the comment was invited by defense counsel in summation, and whether defense counsel had an adequate opportunity to rebut the comments. Trillo v. Biter, 754 F.3d 1085, 1091 (9th Cir. 2014).
This Court is further guided by the established principle that due process is violated by a prosecutor's knowing use of false testimony, or failure to correct testimony known to be false, in order to secure a conviction. Napue v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S. 213, 215-216 (1942).
Here, the state court articulated legal standards that were consistent with clearly established federal law. The prosecutor's representation in opening statement concerning telephone calls connecting Nichols and Dean at the time of the homicide was corrected by Brocchini's own testimony, and defense counsel had an adequate opportunity to respond to the matter. With respect to the attorneys' representations about evidence in argument, the jurors were instructed that they could use only the evidence presented to them in the courtroom, and that nothing the attorneys said was evidence. (LD 3, 104.) Isolated passages of a prosecutor's argument may not have a significant impact on the jury's deliberations where the jury is informed that they are matters of opinion and not evidence. Donnelly v. DeChristoforo, 416 U.S. at 646. Instructing the jury that lawyers' comments and argument are not evidence can cure the harmful effect of isolated instances of improper argument. Sassounian v. Roe, 230 F.3d 1097, 1107 (9th Cir. 2000). Arguments of counsel carry less weight with a jury than do instructions from the court. Boyde v. California, 494 U.S. 370, 384-85 (1990).
Further, the calls were not of major importance given the other strong evidence of the participation of Petitioner Nichols and Dean in the offenses. It was not reasonably probable that the jury would have reached a different result in the absence of the comment made in opening statement. The state court reasonably applied clearly established federal law, and its decision was not based on an unreasonable determination of fact.
Brocchini's linkage of Ruiz's telephone to those of Thomas White and Dupree Hull was shown by cross-examination at trial to lack any current documentation or back-up. It is thus not reasonably probable that Brocchini's testimony had any significant effect on the result reached by the jury.
The state court decision that there was no prejudice from any testimony by Brocchini regarding Petitioners' having repeatedly asked Collins where Ruiz lived, was not based on an unreasonable application of clearly established federal law or unreasonable determination of fact. Any mischaracterization of Collins's testimony was neutralized by Dean's counsel's cross-examination of Brocchini in which he testified that it was Collins's testimony that was the basis for Brocchini's testimony regarding Dean's having arrived with the others at Collins's hous e and having made the inquiries. The jury had before it Collins's testimony regarding Trice's having repeatedly asked Collins for a drug connection and for details concerning the anticipated transaction, including when and where. The cross-examination provided the jury an opportunity to evaluate not only Brocchini's credibility, but also the nature and extent of Collins's testimony about the conduct of the defendants before the homicide. In light of the totality of the evidence, it is not reasonably probable that the jury's decision would have been different absent Brocchini's characterization of Collins's testimony, a matter already in evidence before the jury.
Likewise, the state court reasonably concluded that Petitioner had not shown any prejudice from Brocchini's testimony that Lisa Young had identified Petitioner as a gang member during her own testimony. Petitioner does not dispute that, as the CCA stated, the record of Young's testimony shows she was asked whether Dean had ever told her that he was, and she answered only that he had. In view of the strength of Dean's admission as related by Young, it is unlikely the jury would have confused Young's own testimony with its characterization by Brocchini, who had repeatedly been shown to have lacked conscientiousness in the collection and recollection of the facts and the evidence. Further, the record was replete with independent indicia of Petitioner's allegiance to the gang.
Similarly, with respect to Brocchini's testimony that Dean had admitted gang membership when booked into the jail after the arrest in this case, the state court's conclusion regarding the absence of prejudice was objectively reasonable. During cross-examination, defense counsel explored the existence of an inconsistent jail record, the absence of any documentation of Brocchini's assertion, and Brocchini's inability to recall the identity of the officer who Brocchini maintained had told Brocchini of Dean's alleged admission. Similarly, Brocchini's testimony that a telephone number was associated with Petitioner included Brocchini's responses on cross-examination indicating Brocchini had made a mistake.
The state court also properly concluded that even if Brocchini incorrectly testified that a photograph of Petitioner was taken following a 1995 arrest instead of a 1992 arrest, such an error would not have been "of any import" because of what the jury had already learned regarding Petitioner's criminal record. (LD 3, 101.) Similarly, it was objectively reasonable for the state court to find that any asserted error in Okamoto's testimony regarding Petitioner's having been convicted in 1995 for sale of cocaine base was harmless because on cross-examination, Petitioner himself had admitted to having suffered a conviction in 1995 for possession of cocaine base for sale.
Likewise, Petitioner does not dispute that the record reflects that Okamoto testified Dean was arrested when Dean and Petitioner were detained while a search warrant was executed at Dean's residence, and not that Petitioner was arrested; the record thus refutes Petitioner's assertion that there was erroneous testimony that required correction. As to Okamoto's statement that a getaway vehicle was parked several blocks from the victim's residence, the record reflects that the jury was admonished that that Okamoto's testimony concerned the predicate acts pertained to the gang allegations, and not to whether or not certain things happened. Further, if there was any question regarding whether opinion evidence was based on matters that were in evidence, the jury during deliberations could ask the court reporter to check the record.
With respect to the failure to disclose Brocchini's 1998 report and field identification cards identifying Hull as a member of a Crip faction of the Oak Street Posse, the state court had fully examined the problem in light of the totality of the evidence and concluded in an objectively reasonable manner that even if false testimony was presented, there was no reasonable likelihood that it could have affected the judgment.
As to Petitioner's argument that the record contained uncorrected testimony that Hull was a Blood gang member, the record contained testimony from Brocchini that a lot of people in town who were involved in drugs or gangs were aware that Ruiz was a drug dealer and that Blood gang members from Modesto would associate with Pasadena Bloods in custodial settings. The jury was instructed that the attorneys' questions were not evidence and that they were not to assume something was true just because an attorney asked a question suggesting that it was true. In view of the actual state of the evidence as set forth by the CCA and adopted by Petitioner, a fairminded jurist could conclude that the state court reasonably applied clearly established federal law when it determined that there was no reasonable likelihood that any false impression created by Brocchini's testimony that Hull was a Blood could have affected the jury's judgment.
As to the assertion that the prosecutor knew or should have known that Hull was a Crip and not a Blood because of his previous prosecution of Hull, Petitioner does not dispute that the record shows that the prosecutor stated without contradiction that he did not know Hull's gang membership because the earlier murder prosecution of Hull had not been a gang-related case. Thus, the record essentially forecloses Petitioner's contention, and the state court's conclusion was not contrary to, or an unreasonable application of, clearly established law, or based on an unreasonable determination of fact.
With respect to the prosecutor's argument regarding defense gang expert Dana Orent, the prosecutor's improper argument that Orent took evidence home and stashed it in his garage did not compel a conclusion that habeas relief was warranted. The state court reasonably concluded that because the misstatements concerned a witness and testimony that were relevant only to the stricken gang allegations, the Petitioner had not shown any prejudice.
Regarding the assertion that the prosecutor improperly argued and effectively testified why he did not use Orent as a witness, it is established that attorneys are generally prohibited from taking the witness stand to testify in a case they are litigating because it raises a risk that jurors will be unduly influenced by the prestige and prominence of the prosecutor's office and will base their credibility determinations on improper factors. United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998). Related concerns for maintaining the appearance of justice and public confidence in the administration of justice are especially significant where the testifying attorney represents the prosecuting arm and is an advocate of the government. Id. The rule against an attorney's testifying functions to maintain a boundary between the advocate and the witness by preventing an attorney from appearing as both a witness and an advocate in the same litigation. United States v. Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985). When, in context, a prosecutor is portrayed as being personally involved with an investigation or transaction that is in evidence, it can be a violation of the rules against vouching or advocates acting as witnesses. See, United States v. Hermanek, 289 F.3d 1076, 1089-99 (2002).
Here, the state court reasonably concluded that assuming that the prosecutor's offering unsworn testimony had been preserved as an issue, Petitioner had shown no prejudice because the prosecutor himself noted that his reasoning for not using certain witnesses was not in evidence and was thus not to be considered by the jury, and because argument concerning Orent affected the gang allegations, which had been stricken.
Viewing the totality of Petitioner's allegations of prosecutorial misconduct, the state court reasonably determined that there was no fundamental unfairness considering the nature of the misconduct, the nature and position of the pertinent evidence and issues, the fact that the gang enhancement allegations had been stricken, and the admonitions given to the jury. The issue before the Court in this § 2254 proceeding in which the state court found prosecutorial misconduct is not whether the prosecutor was a model of propriety, but rather whether the state court reasonably applied clearly established federal law and reasonably determined the facts in light of the evidence before it when it concluded that the prosecutor's misconduct did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. Parker v. Matthews, 132 S.Ct. at 2153; Darden v. Wainwright, 477 U.S. at 181; Comer v. Schriro, 480 F.3d at 988. Here, it cannot be said that the state court's decision was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Petitioner Nichols includes in the petition a supplemental report indicating that on October 7, 2005, criminalist Donna Mambretti reported that a latent palm print on the rental car did not match Petitioner's print. (Pet., doc. 1, 24.) The test result, as set forth without context in Petitioner's petition, does not foreclose the possibility that another latent print was being tested or that the result was erroneous for a variety of reasons. The trial record contains the testimony of Donna Mambretti, a latent print analyst with the California Department of Justice, that of fourteen different impressions lifted from the rental car, one on the driver's side hood of the car was Petitioner Nichols's left palm print. (9 RT 2135, 2196-97, 2204-05 [trial testimony given January 18, 2007].)
Petitioner has not shown that any false testimony was presented or was the basis of argument. Accordingly, it will be recommended that Petitioners' claims of prosecutorial misconduct be denied.
XIII. Sentencing Error
Petitioner argues that because there were insufficient jury findings or evidence of Petitioner's discharging a firearm and causing Jose Ruiz's death within the meaning of Cal. Pen. Code § 12022.53(d), Petitioner suffered a violation of his rights to due process of law under the Fifth, Sixth, and Fourteenth Amendments when the trial court imposed a life term enhancement. (Doc. 1, 7.)
A. The State Court's Decision
The decision of the CCA on Petitioner's claim is as follows:
A. Firearm Discharge Enhancements
Appellants contend the firearm discharge enhancements must be stricken for failure of proof. We agree with respect to Nichols, but disagree with respect to Dean and Trice.
1. Background
As previously described, firearm discharge enhancement allegations, pursuant to section 12022.53, subdivisions (b), (c), (d) and (e)(1), FN67 were charged and found true with respect to counts I, III, and IV. At sentencing, the prosecutor observed that subdivision (e)(1) was rendered inapplicable by the trial court's having struck the gang enhancements, but that subdivision (d) still resulted in an enhancement of 25 years to life. As a result, the trial court struck the enhancements alleged pursuant to subdivision (e)(1), but imposed sentence pursuant to subdivision (d).
No one objected to imposition of sentence under subdivision (d). Appellants now contend, however, that with the gang findings stricken, imposition of enhancements pursuant to subdivision (d) was unauthorized, as the evidence is insufficient to establish personal firearm discharge causing death or great bodily injury by each, or any, appellant.FN68
FN67. When we hereafter refer to subdivisions (a), (b), (c), (d) and (e)(1), we are referring to those subdivisions of section 12022.53.
FN68. Failure to object to an unauthorized sentence does not result in forfeiture of the issue for purposes of appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.)
(LD 3, 112-18.) The CCA concluded that substantial evidence did not support the enhancement as to Petitioner Nichols because nothing in the record demonstrated that he had actually fired his gun. (Id. at 118-19.)
2. Analysis
" 'The legislative intent behind section 12022.53 is clear: "The Legislature finds and declares that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and to deter violent crime."'[Citations.]" (People v. Palacios (2007) 41 Cal.4th 720, 725.) To this end, and in recognition of different degrees of culpability, section 12022.53 imposes three gradations of punishment based on the seriousness of the type and consequences of the firearm use. (People v. Grandy (2006) 144 Cal.App.4th 33, 42.) The portions of section 12022.53 pertinent to the issue raised by appellants provide:
"(d) Notwithstanding any other provision of law, any person who, in the commission of [murder (subd. (a)(1)) or robbery (subd. (a)(4)) ] ..., personally and intentionally discharges a firearm and proximately causes great bodily injury..., or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.
"(e)(1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:
"(A) The person violated subdivision (b) of Section 186.22.
"(B) Any principal in the offense committed any act specified in subdivision ... (d)."
Under the statute, a nonshooter cannot be subjected to enhanced punishment under subdivision (d) absent a gang finding under section 186.22, subdivision (b). This does not mean, however, that a shooter must personally inflict great bodily injury or death in order to be liable in the absence of a gang finding. While a subdivision (d) enhancement may most commonly be imposed where a bullet fired by the defendant strikes the victim (see People v. Zarazua (2008) 162 Cal.App.4th 1348, 1361), the plain language of subdivision (d) does not compel such a result, but instead requires that the shot fired by the defendant be a proximate cause of great bodily injury or death. In other words, the shooter need not personally cause great bodily injury or death, but instead need only proximately cause such a result.
It has been held that "a defendant can proximately cause injury by discharging a firearm within the meaning of section 12022.53, subdivision (d) even if his or her bullet does not actually strike the victim." (People v. Palmer (2005) 133 Cal.App.4th 1141, 1150.) We agree. People v. Bland (2002) 28 Cal.4th 313 (Bland) is instructive. In that case, the defendant and a companion shot at a car containing three individuals, killing one and injuring the other two. Despite the fact the evidence was not clear who fired the shots that struck the two survivors, the defendant was convicted of murder and two counts of attempted murder, and jurors found true a subdivision (d) allegation with respect to all counts. (Bland, supra, at p. 318.)
The California Supreme Court held that the trial court had a sua sponte duty to define proximate causation, as the term has a technical meaning peculiar to the law. (Bland, supra, 28 Cal.4th at p. 334.) It approved jury instructions stating that (1) "'[a] proximate cause of great bodily injury or death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the great bodily injury or death and without which the great bodily injury or death would not have occurred'" (CALJIC No. 17.19.5), and (2) when the conduct
of two or more persons contributes concurrently as a cause of the great bodily injury or death, the conduct of each is a cause of the great bodily injury or death if that conduct was a substantial factor contributing to the result, and a cause is concurrent if it was operative at the moment of the great bodily injury or death and acted with another cause to produce that result (CALJIC No. 3.41). (Bland, supra, at pp. 335, 336.)
In concluding that CALJIC No. 17.19.5 correctly defines proximate causation, the court rejected the determination by the Court of Appeal majority that the instruction was not a proper definition because it "'would permit a true finding on the enhancement based [on] the cohort's inflicting the death and injuries and defendant's aiding and abetting him simply by also firing a gun. The enhancement cannot be found true unless defendant personally fired the bullets which struck the victim.'" (Bland, supra, 28 Cal.4th at p. 335.) The Supreme Court stated: "Section 12022.53(d) requires that the defendant 'intentionally and personally discharged a firearm' but only that he 'proximately caused' the great bodily injury or death. The jury, properly instructed, reasonably found that defendant did personally discharge a firearm. The statute states nothing else that defendant must personally do. Proximately causing and personally inflicting harm are two different things." (Bland, supra, at p. 336.) The court concluded: "A person can proximately cause a gunshot injury without personally firing the weapon that discharged the harm-inflicting bullet.... [¶] ... [S]ection 12022.53(d) does not require that the defendant fire a bullet that directly inflicts the harm. The enhancement applies so long as defendant's personal discharge of a firearm was a proximate, i.e., a substantial, factor contributing to the result." (Bland, supra, at pp. 337, 338; see, e.g., People v. Carrillo (2008) 163 Cal.App.4th 1028, 1036-1038 [although trial court erred by instructing that subd. (d) allegation was true if conduct of defendant or coperpetrator harmed victim but then failing to instruct that concurrent causes could operate together to determine proximate cause, allegation could be found true under circumstances where defendant was one of several persons who shot at victim, victim was struck by rounds fired from more than one gun, and there was no evidence defendant fired one of those guns]; People v. Zarazua, supra, 162 Cal.App.4th at pp. 1351, 1361-1362 [subd. (d) allegation properly found true
where victim was killed in traffic collision that occurred when car in which he was riding was hit by car carrying two members of one gang, who were fleeing because of gunfire from car carrying members of rival gang, including defendants]; People v. Palmer, supra, 133 Cal.App.4th at p. 1145, 1149-1150 [subd. (d) allegation properly found true where police officer sustained broken ankle while diving for cover from shots fired by defendant, who, with his companion, was attempting to flee the scene after committed an armed robbery].)
In light of the foregoing, we have no trouble concluding that, when multiple gunmen shoot at a victim who is effectively trapped inside a small enclosed area such as a closet, and the victim is significantly injured or killed, all of the gunmen have proximately caused great bodily injury or death within the meaning of subdivision (d), regardless of whether it can be determined that any particular shooter or shooters personally fired the injurious or fatal shot or shots, and regardless of whether bullets fired by any particular shooter actually struck the victim. The question in the present case, then, is whether the evidence is sufficient to establish that any particular appellant or appellants personally and intentionally discharged a firearm at Ruiz.
Whether a defendant personally and intentionally discharged a firearm in the commission of an enumerated offense is a question for the trier of fact to decide. (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) The standard of appellate review applicable to such a question is settled. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are
functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125), and applies to enhancements as well as convictions (People v. Wilson (2008) 44 Cal.4th 758, 806).
Viewed in accordance with the foregoing principles, the evidence showed that appellants were three of the four intruders Tatum saw in her home on the evening of March 3, 2002. All were armed. Although Tatum could not positively identify any of the guns, given where guns were found after the shooting and Tatum's testimony that they looked similar to the weapons she saw that night, a reasonable inference can be drawn that Trice had the .22-caliber rimfire revolver, Dean had the Lorcin .380 semiautomatic, and Nichols had a big black gun that was never found because he took it with him after the shooting.
Tatum's testimony established that appellants all had their guns in their hands prior to the shooting. There was no evidence their guns ever left their hands until after Ruiz was shot. Trice and Nichols forced Ruiz to the walk-in closet in the bedroom. Tatum saw Trice at the entrance of the closet door. She lost sight of Ruiz at the closet door. Trice and Nichols took Ruiz into the closet. Through the half-open door, Tatum could see the back of Nichols's shirt inside. Although she could not see whether there was anyone in the closet besides Ruiz and Nichols, since Tatum did not see Trice anywhere, it can reasonably be inferred he was inside the closet when the shooting started.
When the gunfire erupted, Tatum saw Dean go to the closet door and start shooting into the closet at a downward angle, using a gun that appeared similar to the Lorcin .380 that was subsequently found. She witnessed, she estimated, at least four shots going into the closet door. When Dean paused after firing a few shots, Tatum could hear other shots going off behind the door. It can reasonably be inferred that Trice was inside the closet, shooting, as four .22-caliber bullets from rimfire cartridges were recovered from Ruiz's body, and Ruiz's blood was on the cylinder of the .22-caliber revolver. Ruiz was shot many more times than the number of bullets recovered, however.
In light of the foregoing, there is ample evidence to support the subdivision (d) enhancements as to Dean and Trice, even without the gang findings. Although appellants attack Tatum's and Collins's testimony, their credibility was for the jury to determine. There being substantial evidence to support a conclusion Dean and Trice, in the commission of robbery and murder, personally and intentionally discharged a firearm, proximately causing great bodily injury or death to a person who was not an accomplice, it necessarily follows the trial court did not err in sentencing accordingly, notwithstanding the fact the subdivision (e)(1) allegations and gang enhancements were stricken. As to Dean and Trice, then, the subdivision (d) enhancements stand.
B. Analysis
To determine whether a conviction violates the constitutional guarantee of due process of law because of insufficient evidence, a federal court ruling on a petition for writ of habeas corpus must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 20-21 (1979); Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).
All evidence must be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319; Jones, 114 F.3d at 1008. It is the trier of fact's responsibility to resolve conflicting testimony, weigh evidence, and draw reasonable inferences from the facts; thus, it must be assumed that the trier resolved all conflicts in a manner that supports the verdict. Jackson v. Virginia, 443 U.S. at 319; Jones, 114 F.3d at 1008. The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but rather whether the jury could reasonably arrive at its verdict. United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). Circumstantial evidence and the inferences reasonably drawn therefrom can be sufficient to prove any fact and to sustain a conviction, although mere suspicion or speculation does not rise to the level of sufficient evidence. United States v. Lennick, 18 F.3d 814, 820 (9th Cir. 1994); United States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990); see Jones v. Wood, 207 F.3d at 563. The court must base its determination of the sufficiency of the evidence from a review of the record. Jackson at 324.
The Jackson standard must be applied with reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101. However, the minimum amount of evidence that the Due Process Clause requires to prove an offense is purely a matter of federal law. Coleman v. Johnson, - U.S. -, 132 S.Ct. 2060, 2064 (2012) (per curiam). For example, under Jackson, juries have broad discretion to decide what inferences to draw and are required only to draw reasonable inferences from basic facts to ultimate facts. Id.
Further, under the AEDPA, federal courts must apply the standards of Jackson with an additional layer of deference. Coleman v. Johnson, - U.S. -, 132 S.Ct. 2060, 2062 (2012); Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). This Court thus asks whether the state court decision being reviewed reflected an objectively unreasonable application of the Jackson standard to the facts of the case. Coleman v. Johnson, 132 S.Ct. at 2062; Juan H. v. Allen, 408 F.3d at 1275. The determination of the state court of last review on a question of the sufficiency of the evidence is entitled to considerable deference under 28 U.S.C. § 2254(d). Coleman v. Johnson, 132 S.Ct. at 2065.
This Court is bound by the state court's interpretation of § 12022.53(d). Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). The Court accepts a state court's interpretation of state law. Langford v. Day, 110 F.3d 1180, 1389 (9th Cir. 1996). In a habeas corpus proceeding, this Court is bound by the California Supreme Court's interpretation of California law unless the interpretation is deemed untenable or a veiled attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001). Here, there is no indication that the state court's interpretation of state law was associated with an attempt to avoid review of federal questions. Thus, this Court is bound by the state court's interpretation and application of § 12022.53(d).
The state court articulated legal standards consistent with the Jackson standard. Further, the state court's decision was not contrary to, or an unreasonable application of, that standard. The state court reasoned that it was sufficient under state law that Petitioner's discharge of his weapon was a proximate, i.e., a substantial, factor contributing to the great bodily injury or death. The evidence supported a finding that Petitioner had shot his weapon. Further, the evidence also warranted an inference that Petitioner was one of multiple persons who at essentially the same time and place shot at the victim, and the evidence showed that the victim was struck by ammunition fired from more than one gun and that more than one wound was potentially fatal. The state court's decision that there was sufficient evidence that Petitioner's discharge of his weapon was a proximate cause of injury or death to the victim was an objectively reasonable application of the Jackson standard. Further, in light of the evidence before the state court, the state court's decision did not involve an unreasonable determination of fact.
Accordingly, it will be recommended that Petitioner's sufficiency of the evidence claim concerning the sentencing enhancement be denied.
XIV. Cumulative Error
Petitioner argues that his rights to present a defense and to due process and a fundamentally fair trial protected by the Fifth, Sixth, and Fourteenth Amendments were violated by the cumulative errors made at trial (excluding errors relating to the confidential informant and sentencing error). (Doc. 1 at 7, 14-15.)
Petitioner Nichols also argues that the failure to disclose documentation of Collins's gang status, in light of all the trial errors, resulted in a denial of the right to due process, to present a defense, and to a fundamentally fair trial. (Doc. 1, 39.)
A. The State Court's Decision
The pertinent portion of the CCA's decision is as follows:
CUMULATIVE PREJUDICE(LD 3, 120-22.)
With respect to every issue not concerning disclosure of the confidential informant or alleged sentencing error, appellants contend that, even if not prejudicial by itself, the error was prejudicial in the context of all the trial errors. They say the trial errors cumulatively denied them their rights to due process, to present an effective defense, and to a fundamentally fair trial.FN71
FN71. The briefing on this issue violates California Rules of Court, rule 8.204(a)(1)(B), which requires that each brief state each point under a separate heading or subheading, by simply adding a paragraph asserting cumulative prejudice where applicable. In two instances, Nichols's opening brief asserts the errors cumulatively denied appellant Lopez (sic) his constitutional rights. We will address the issue on the merits to forestall a claim of ineffective assistance of appellate counsel.
"Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing [of prejudice]. [Citations.] Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citations.]" (People v. Hill, supra, 17 Cal.4th at pp. 844-845.) We have examined the
entire record and are persuaded that what errors we have identified were not prejudicial by themselves. We are also persuaded that their combined effect was harmless, and that appellants received a fair trial. (See People v. Boyette (2002) 29 Cal.4th 381, 467-468.) In so holding, and given the nature and number of the charges and enhancement allegations and the fact there were three defendants, we expressly reject Nichols's oft-repeated suggestion that juror deliberations of approximately seven hours somehow indicates a close case such that any error was prejudicial. (See, e.g., People v. Taylor (1990) 52 Cal.3d 719, 732 [rejecting notion, in light of number of charges and allegations, that deliberations of 10 hours showed case was close]; People v. Walker (1995) 31 Cal.App.4th 432, 437 [same re: deliberations of six and one-half hours].)
We reach this conclusion despite the fact jurors were exposed to behavior, from both the prosecutor and defense counsel, that cannot have given them a good picture of the legal profession or the criminal justice system. The prosecutor often seemed incapable of restraining himself from including gratuitous remarks with virtually every objection he made or to which he responded. Defense counsel—some more than others—were frequently rude and sarcastic toward the prosecutor and, worse, toward witnesses. "[I]t is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court's considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts.... But if the ruling is adverse, it is not counsel's right to resist it or to insult the judge—his right is only respectfully to preserve his point for appeal. During a trial, lawyers must speak, each in his own time and within his allowed time, and with relevance and moderation. These are such obvious matters that we should not remind the bar of them were it not for the misconceptions manifest in this case." (Sacher v. United States (1952) 343 U.S. 1, 9.) Despite counsel's behavior, however, we remain convinced appellants were not denied a fair trial or any other constitutional rights.
B. Analysis
The Supreme Court has clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair, even though no single error rises to the level of a constitutional violation or would independently warrant reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410 U.S. 284, 298, 302-03 (1973)). Traditional principles of due process provide that cumulative errors warrant habeas relief only where the errors have so infected the trial with unfairness that the resulting conviction denies due process, such as where the combined effect of the errors had a substantial and injurious effect or influence on the jury's verdict, id. (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) and Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)), and where the combined effect of individually harmless errors renders a criminal defense far less persuasive than it might otherwise have been, id. (citing Chambers, 410 U.S. at 294, 302-03).
In evaluating a due process challenge based on the cumulative effect of multiple trial errors, a reviewing court must determine the relative harm caused by the errors considering the overall strength of the prosecution's case; if the evidence of guilt is otherwise overwhelming, the errors are considered harmless, and the conviction will generally be affirmed. Parle v. Runnels, 505 F.3d at 927-28.
Here, after reviewing all Petitioners' claims separately, the state court expressly addressed the claim of fundamental unfairness based on cumulative error and set forth legal standards consistent with the governing federal standards. The state court reviewed the entire record and reasonably concluded that although there were errors, whether those errors were examined singly or in combination, they were not prejudicial to the extent that they rendered the trial unfair. This conclusion was not contrary to, or an unreasonable application of, clearly established federal law, and it was not based on unreasonable factual findings.
The weight of the evidence against Petitioners was great; the errors in testimony and various representations concerning the evidence were challenged on cross-examination and in argument; improprieties were the subject of curative processes, including instructions; and the prejudicial effect of the gang evidence was limited or mitigated by various factors, including instructions, the inflammatory and extreme facts of the charged offenses, the victim's status as a notorious gang member and drug dealer, Petitioner's own history of criminal conduct and association with others in the gang culture, and the ever-present context of the drug trade and the culture of violence that inhered in the identity of the participants and the conduct and events involved not only in preparing and committing the offenses, but also in undertaking to subvert the administration of justice by engaging in an attempt to conceal guilt after the fact by means of deceit and threats. Any limitation on confrontation was harmless in view of the lack of any material dispute about the physical evidence or the autopsy. Defense counsel engaged in extensive impeachment and argument with respect to Brocchini and Collins, and defense counsel overall participated actively in the examination and cross-examination of the witnesses as well as in lengthy and complex closing arguments.
Considering all the circumstances, it cannot be said that the state court's decision was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Accordingly, it will be recommended that Petitioner's cumulative error claim be denied.
XV. Evidentiary Hearing
Petitioner requests an evidentiary hearing.
The decision to grant an evidentiary hearing is generally a matter left to the sound discretion of the district courts. 28 U.S.C. § 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 465, 473 (2007). To obtain an evidentiary hearing in federal court under the AEDPA, a petitioner must allege a colorable claim by alleging disputed facts which, if proved, would entitle him to relief. Schriro v. Landrigan, 550 U.S. at 474.
The determination of entitlement to relief, in turn, is limited by 28 U.S.C. § 2254(d)(1) and (2), which require that to obtain relief with respect to a claim adjudicated on the merits in state court, the adjudication must result in a decision that was either contrary to, or an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of facts based on the evidence before the state court. Schriro v. Landrigan, 550 U.S. at 474; Earp v. Ornoski, 431 F.3d 1158, 1166-67 (9th Cir. 2005). Further, in analyzing a claim pursuant to § 2254(d)(1), a federal court is limited to the record that was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 131 S.Ct. at 1398.
Here, Petitioner has not shown entitlement to relief under § 2254(d). Thus, the Court is not required to hold an evidentiary hearing. Cullen v. Pinholster, 131 S.Ct. at 1399 (citing Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). Accordingly, it will be recommended that Petitioner's request for an evidentiary hearing be denied.
XVI. Certificate of Appealability
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.
A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether: (1) the petition states a valid claim of the denial of a constitutional right, and (2) the district court was correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id. An applicant must show more than an absence of frivolity or the existence of mere good faith; however, the applicant need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. at 338.
Here, it does not appear that reasonable jurists could debate whether the petitions should have been resolved in a different manner. Petitioners have not made a substantial showing of the denial of a constitutional right. Thus, it will be recommended that the Court decline to issue a certificate of appealability.
XVII. Recommendations
Accordingly, it is RECOMMENDED that:
1) Petitioner Trice's petition for writ of habeas corpus be DENIED;
2) Petitioner Trice's's request for an evidentiary hearing be DENIED;
3) Petitioner Nichols's petition for writ of habeas corpus be DENIED;
4) Judgment be ENTERED for Respondent against Petitioner Trice and Petitioner Nichols; and
5) The Court DECLINE to issue a certificate of appealability.
These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED.
Dated: September 10, 2014
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE