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April 2, 2003


The opinion of the court was delivered by: Charles B. Breyer, United States District Judge



Petitioner James R. Johnson ("petitioner") was charged by information filed on April 28, 1998, with second degree robbery and attempted second degree robbery. The information alleged that these offenses were serious felonies and that petitioner used a deadly weapon when he committed them. It was further alleged that petitioner had previously been convicted of robbery which constituted a "strike" within the meaning of California Penal Code section 667(d)-(e). Petitioner pled not guilty and denied the special allegations.

On December 27, 1999, a jury convicted petitioner of robbery and attempted robbery with a deadly weapon. Pursuant to petitioner's waiver of jury trial on the prior conviction allegations, a court trial was held and the priors were found true. Petitioner was sentenced on March 1, 2000, to a prison term of 19 years and four months with 909 days of credit for time served. The California Court of Appeal affirmed petitioner's conviction on May 4, 2001 and the California Supreme Court subsequently denied review. Petitioner then filed the instant federal petition for writ of habeas corpus under 28 U.S.C. § 2254.


The pertinent facts of the case are as follows:*fn1

On the evening of March 18, 1998, Anna Lijpart and Coleen Dowling attended a lecture at the Herbst Theater in San Francisco. Afterwards, as the two entered the elevator lobby of the Civic Center Garage, they heard voices arguing in one of the elevators. Dowling saw two men in the elevator, one African-American and one Caucasian; the Caucasian man said,' "[g]et away from me, you're crazy." Dowling yelled, "[h]ey, what's going on?" The African-American man ran out of the elevator, the doors closed and the white man went down in the elevator.
Another elevator arrived, which Dowling and Lijpart entered, along with an older couple. As the doors were closing, the same African-American man who had run out of the other elevator, whom both Dowling and Lijpart identified as apellant at trial, opened the door and came into the elevator. The man was holding a knife and told the occupants of the elevator, "[g]ive me your stuff give me your money." Lijpart threw a canvas bag containing her wallet, sunglasses, checkbook, cosmetics bag and two books she had purchased that evening at the man's feet. A second African-American man, shorter than appellant, jumped into the elevator and said, "[t]his is a robbery." Dowlin gave the man her wallet. The man grabbed Lijpart's hand, tryin to take off her wedding ring. Apellant was focused on the older couple. At this point, Dowling ran out of the elevator between the men, yelling, "[h]elp. We're being robbed. Help. Somebody help." Lijpart eventually got her ring off her finger, threw it on the ground outside the elevator and ran out. She and Dowling ran outside and stopped a car that was exiting the garage. Dowling testified that, after waiting a few minutes to be sure the men had left, the women returned to the elevator lobby and retrieved Lijpart's ring, went to the garage office and called the police, then returned to the elevator lobby with a garage attendant and waited about 10 minutes for the police to arrive. Lijpart testified that they looked for and found her wedding ring after calling the police, while they were waiting in the elevator lobby.
San Francisco police officers Richard Aceret and Jennifer Dudoroff arrived at the Civic Center garage at 9:52 p.m. and found the victims five minutes later. When the police arrived, the women gave them a physical descriptions of the robbers, describing the taller man as a little over six feet tall, with a mustache, dressed all in black, including a "puffy" black jacket with a hood. Lijpart testified that she said the man had bloodshot eyes and was wearing some sort of black cap. The police had the women get into the police car and rove around the Civic Center area looking for the suspects. At 10:10 p.m., the officers stopped near the Carl's Junior at Seventh and Market Streets because they observed an African-American man wearing a puffy black hooded jacket sitting in the back. The officers told the victims that the man might or might not be the right one. Lijpart and Dowling looked through the window of the restaurant, saw the man's profile and thought it was the first robber but were not sure.*fn2 The officers then went inside and had the man stand up and face the window. Appellant did not say anything but complied with the request. Lijpart testified that she "knew immediately that it was him" and was "[a] hundred percent certain" it was the first robber. Dowling was "sure" it was the first robber, with no question in her mind.*fn3 Both women nodded to police officers. One of the officers then held up Lijpart's car keys and asked if they were hers; Lijpart said they were. The officers arrested apellant and took him out of the restaurant. officer Dudoroff went outside and each of the victims separately told her that this was the person who had robbed them. Officer Dudoroff also testified that appellant was "kind of mellow . . . like he was coming of[f] something" and that the Tenderloin area had a "high rate of crime, including drugs and violent crimes." The officer made no reference in her report, however, about the possibility of appellant being under the influence of anything.
The officers brought the women to the table where appellant had been sitting and Lijpart saw her wallet, checkbook, sunglasses and cosmetics bag there. The contents of her wallet were undisturbed, including $300 in cash. Both victims testified that a knife found on the table was the one appellant had used to threaten them in the elevator.
Kandyce Kelsey testified for the defense. Kelsey was a program coordinator for a social service agency serving clients with HIV, substance abuse, and mental issues, and had previously worked at a treatment facility for substance abusers. She had met appellant about four years prior to trial, when he was a client at the treatment facility. They developed a personal relationship after appellant left the program and Kelsey moved to a different job. They were romantically involved briefly, then remained good friends.
Appellant was with Kelsey at her house in Alameda on March 18; he had been staying there for a couple of days. That evening, she drove him back to San Francisco, leaving her house at about 9:30 p.m. Appellant was not under the influence and his eyes were not bloodshot. Kelsey dropped appellant at the Carl's Junior on Market Street. As he walked into the building, Kelsey saw a bag on the ground. Appellant picked it up, saying that there might be money in it. Kelsey told appellant not to get into any trouble and drove off.
Kelsey did not immediately come forward with the information to which she testified because appellant did not want her to get involved. As time went on, her information seemed more crucial and he eventually agreed to let her be involved. Kelsey was asked on cross-examination whether it worried her to take appellant to an area with a lot of drug activity and said it did not. She was shown a transcript of her interview with a defense investigator about a year after the incident in which she said she had picked appellant earlier in the day of March 18, but testified that this was a mistake.

I. Standard of Review

This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).

The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

An unreasonable application of federal law is different from an incorrect application of federal law. Id. at 410. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. The only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for the purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.

II. Legal Claims

Petitioner raises five claims: (1) violation of his Fifth Amendment rights by the prosecution's use of pre-arrest silence; (2) improper admission of speculation evidence, that petitioner came to the Tenderloin on the night of the robbery to find drugs and robbed the victims to obtain money for drugs, violating his right to a fair trial; (3) denial of the right to trial by jury by the trial court's use of judicial notice; (4) prejudicial error by the trial court's instructing the jurors under CALJIC No. 17.41.1 that they had a duty to inform one another; and (5) violation of due process and the right to a fair trial due to the cumulative effect of the errors alleged herein.

A. Evidence of Petitioner's Pre-arrest Silence

Following the robbery, the police approached petitioner at Carl's Jr. restaurant on Market Street and asked him to stand up so that the robbery victims could observe him through the window. Petitioner complied with the request and remained silent. During trial, the prosecution argued that the petitioner's silence during this encounter showed consciousness of guilt. Petitioner claims that admission of his pre-arrest silence was error which violated his Fifth ...

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