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United States District Court, Northern District of California

May 21, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge


Deborah Thompson is a California prisoner, proceeding pro se, who filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court ordered respondent to show cause why the petition should not be granted based on petitioner's three claims. Respondent has filed an answer, along with a memorandum and exhibits. Petitioner has filed a traverse.


Petitioner and Ed Traster were driving in Traster's blue Thunderbird on Summit road, a two-lane mountain road in Santa Cruz County, at about 5:30 p.m. on March 18, 1997. There was still daylight, visibility was good, and there were no obstructions in the road. On a straight stretch of the road, where the posted speed is 40 m.p.h. and, when children are present, 25 m.p.h., the driver accelerated to at least 55 m.p.h. The car crossed the double line into the oncoming lane, jerked back into its proper lane, spun around, climbed the curb and an embankment, ran along a cyclone fence, hit a tree, descended the embankment, and rolled onto its side. Traster had not been wearing a seat belt, was partially ejected, and died. Petitioner, who also was not wearing a seat belt, survived and managed to climb out of the sun roof, suffering a laceration on her nose and various bruises. The results of blood tests indicated that at the time of the accident, petitioner and Traster each had a blood-alcohol level of .20, as well as methamphetamine in his/her system. Petitioner also had valium and its metabolite in her system.

Kelly Rafter Piunit, an assistant district attorney for the County of Santa Clara, witnessed the accident, called "911," and stopped at the scene. She testified that she saw Traster in the passenger seat and that petitioner said, "poor," followed by a man's name. Specifically, Piunit testified: "It was a male name, but I don't remember what name it was, but it was just — she was pretty hysterical. `Poor,' let's just say, `Dave,' or something. `Poor Dave, poor Dave. I can't believe I did this to poor Dave,' and kind of hysterical. I don't know-two, three, four times." Joshua Doak also witnessed the accident. He testified that he was traveling in the opposite direction and that just before the accident he saw two people in an oncoming car, identifying petitioner as the driver and Traster as the passenger. After the accident, Doak saw Traster hanging out of the passenger seat, screaming for help.

Richard Mason, a forensic pathologist, and California Highway Patrol Officer Dane Lobb, an accident-reconstruction expert, each testified that in his opinion petitioner was the driver and Traster the passenger at the time of the accident. Their opinions were based on numerous factors, including the separate seat-position settings that corresponded to petitioner's and Traster's physical size, Traster's position and injuries after the crash, and the impact marks on the driver's side that corresponded to petitioner's injuries.

Petitioner's defense was that Traster was driving the car at the time of the accident. In support thereof, petitioner called several witnesses who testified to having seen petitioner in the passenger seat and/or Traster driving the vehicle earlier in the day. Gary Fairchild testified he saw petitioner in the passenger seat of the Thunderbird in front of a liquor store sometime between 3:00 and 4:00 p.m. that day. He testified that the car was parked at the time and that he did not see Traster at all. Whitaker Deiniger testified that at around 4:00 p.m., Traster drove up to Deiniger's house with petitioner as a passenger. After speaking to Deiniger for a few minutes, Traster drove away. Michael Tabler tesified that at around 5:00 p.m., Traster and petitioner picked him up at his house and they all went to a liquor store, after which Traster drove back to Tabler's house. According to Tabler, Traster was drunk, drove fast, and made quick turns.

The jury convicted petitioner of gross vehicular manslaughter while intoxicated. Petitioner was sentenced to 16 years to life in state prison. The California Court of Appeal and the Supreme Court of California rejected her direct appeals.


A. Standard of Review

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). Habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).

B. Legal Claims

1. Jury Instruction

Petitioner claims that the jury instruction on voluntary manslaughter while intoxicated violated her right to due process because it contained a mandatory presumption as to one of the elements of the offense. The Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. See In re Winship, 397 U.S. 358, 364 (1970). This constitutional principle prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt as to every essential element of a crime. See Yates v. Evatt, 500 U.S. 391, 400-03 (1991); Carella v. California, 491 U.S. 263, 265-66 (1989); Francis v. Franklin, 471 U.S. 307, 313 (1985); Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979). An instruction that creates a mandatory presumption violates due process because it "directly foreclose[s] independent jury consideration of whether the facts proved establish[] certain elements of [the charged offense] . . . and relieve[s] the State of its burden of . . . proving by evidence every essential element of [the] crime beyond a reasonable doubt." Carella, 491 U.S. at 265-66.

Petitioner contends that the instruction on gross vehicular manslaughter while intoxicated created an unconstitutional mandatory presumption in defining the "dangerousness element" of the offense. Under California law, gross vehicular manslaughter while intoxicated is "the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of [certain Vehicle Code sections], and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." Cal. Pen. Code § 191.5(a). The trial court instructed the jury pursuant to California's standard instruction on gross vehicular manslaughter, CALJIC No. 8.93. This instruction read, in relevant part:

A killing is unlawful when a person commits an unlawful act, not amounting to a felony, dangerous to human life under the circumstances of its commission, or commits an act ordinarily lawful, which might produce death, which unlawful act is a cause of the death of another human being. The commission of an unlawful act with gross negligence would necessarily be an unlawful act dangerous to human life, under the circumstances of its commission.
(Emphasis added). Petitioner contends that the italicized portion of this instruction created a mandatory presumption that an unlawful act done with gross negligence would always be an unlawful act dangerous to human life.

The California Court of Appeal rejected this claim because the challenged portion of the instruction merely set forth state law, which defines gross negligence as negligent conduct where death is a reasonably foreseeable consequence of the conduct. See People v. Alonzo, 13 Cal.App.4th 535, 539-40 (1993).*fn2 Therefore, an unlawful act committed with gross negligence is, by definition, under California law, an unlawful act that is dangerous to human life. See People v. Wells, 12 Cal.4th 979, 982 (1996).*fn3 The California Court of Appeal concluded that the challenged portion of the instruction merely set forth a tenet of California law, namely, the definition of gross negligence, and that it did not create a constitutionally prohibited mandatory presumption.

The California Court of Appeal correctly concluded that the instruction did not create an impermissible mandatory presumption. "A mandatory presumption tells the jury that it must presume that an element of a crime has been proven if the government proves certain predicate facts." United States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994). The language petitioner challenges here required the jury to find that an unlawful act "committed with gross negligence" is by necessity an unlawful act "dangerous to human life." This language does not constitute an impermissible mandatory presumption because it does not require the jury to presume that an element of the offense has been proven based on the proof of one or more predicate facts.*fn4 There are any number of factual scenarios that could constitute gross negligence in the commission of an unlawful act. That such scenarios would also, under state law, necessarily constitute a danger to human life does not relieve the prosecutor of proving the defendant committed an act dangerous to human life. In sum, the legal equivalence of gross negligence and danger to human life is a point of state law that does not affect the prosecution's burden of proof.

Even if the giving of the instruction were in error, it would not have caused sufficient prejudice to warrant habeas relief. If an inference in the instruction violated petitioner's right to due process, petitioner can only obtain relief if the instruction resulted in actual prejudice as defined in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). See Patterson, 223 F.3d. at 967-68; see also Carella, 491 U.S. at 266 (holding jury instruction with impermissible mandatory presumption not equivalent to directed verdict, and thus reviewed for harmless error, in that the jury still required to find predicate facts underlying each element beyond reasonable doubt). Actual prejudice exists if the unconstitutional instruction had a "substantial influence on the conviction." Id. Here, there was overwhelming evidence that the act committed was dangerous to human life. The car was being driven by someone under the influence of alcohol at a speed of 55 m.p.h. in a 40 m.p.h. zone; it veered into the oncoming lane of traffic; it hit a tree; and it flipped onto its side. There was no dispute these acts were dangerous to human life, or that they occurred. The only dispute was as to which of the two occupants was driving at the time such events occurred. Once the jury was convinced that petitioner was the driver, as the verdict indicates, there is no reasonable likelihood that the jury would have found that the acts committed by the driver were anything less than dangerous to human life. Consequently, the jury would have found that petitioner's driving was dangerous to human life, even in the absence of the challenged instructional language. Accordingly, even if the challenged language in the jury instruction was constitutionally infirm, it did not have a substantial and injurious effect on the jury's verdict.

2. Exclusion of Evidence

a. Evidence of Traster's Prior Conduct

Petitioner claims that the trial court violated her right to due process by excluding evidence that Traster, approximately three months prior to the fatal accident, had been arrested for driving the same car under the influence of alcohol.

A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley v. Harris, 465 U.S. 37, 41 (1984). The Due Process Clause does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (internal quotations omitted). The defendant must establish that his right to have the jury consider the excluded evidence implicated a "fundamental principle of justice." See id. One of the fundamental rights that may be violated by the erroneous exclusion of critical corroborative evidence is the right to present a defense guaranteed by the Sixth Amendment. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973), and Washington v. Texas, 388 U.S. 14, 18-19 (1967)).

The right to present evidence in support of a defense, however, is not unlimited. When deciding whether the exclusion of evidence violates the Due Process right to a fair trial or the Sixth Amendment right to present a defense, the court balances the following five factors: (1) the probative value of the excluded evidence as to the central issue; (2) the reliability of such evidence; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or is merely cumulative; and (5) whether it constitutes a major part of the defense. Chia v. Cambra, 281 F.3d 1032, 1037 (9th Cir. 2002); Drayden v. White, 232 F.3d 704, 711 (9th Cir, 2000).

Here, the central issue was the identity of the driver of the vehicle at the time of the fatal accident. Evidence that Traster had been arrested for driving the vehicle three months earlier has little or no probative value as to the issue of whether he was driving the vehicle on the occasion in question. Similarly, the fact that Traster drove while under the influence on a prior occasion is not probative of whether he was driving under the influence on the day in question. Indeed, as evidence of prior conduct, such fact may not be used to show latter action in conformity with that conduct. See Cal. Evid. Code § 1101(a); Fed.R.Evid. § 404(b);*fn5 see also Fed.R.Evid § 404, Advisory Committee Notes ("`Character evidence is of slight probative value and may be very prejudicial.'" (quoting the California Law Revision commission)). Moreover, the evidence constituted a relatively minor, rather than major, part of petitioner's defense. The evidence petitioner was allowed to present, in particular, that Traster, in the hours immediately preceding the accident, was driving the vehicle while under the influence, was far more probative than the excluded evidence that Traster had driven it under the influence three months earlier. Because the excluded evidence of the prior arrest was of minimal probative value and a relatively weak part of the defense evidence, its exclusion did not deprive petitioner of the right to present a defense.

Petitioner complains that there was an inconsistency in the trial court's admitting evidence of her past driving under the influence, but excluding the evidence of Traster's past driving under the influence. The inconsistent application of evidentiary rules to allow evidence favoring the prosecution but not evidence favoring the defense may constitute a due process violation. See Gray v. Klauser, 282 F.3d 633, 644-48 (9th Cir. 2002). The rulings in the instant case, however, do not reflect an inconsistent application of the rules of evidence. The evidence was admitted against petitioner under an exception to the general rule barring evidence of past conduct to show conduct on a given occasion. Under the exception to this rule, prior conduct may be used to demonstrate a defendant's mental state, such as motive, intent or knowledge. In this case, petitioner's prior convictions, probation and substance abuse counseling are relevant to show that she had a subjective awareness of the risks of driving under the influence, and therefore that she acted with gross negligence. See People v. Ochoa, 6 Cal.4th 1199, 1204-06 (1993) (holding evidence of prior convictions for driving under influence, probation and alcohol abuse classes admissible to show gross negligence because it demonstrates defendant's subjective awareness of risks of driving under influence). Petitioner's mental state was at issue. The prosecutor had to prove, as one of the elements of the offense, that petitioner acted with gross negligence. The evidence of her prior arrest for driving under the influence demonstrated that she knew and disregarded the risks of such conduct. In particular, as a result of such arrest, petitioner was required to attend counseling in which the dangers of driving under the influence were made clear. By contrast, Traster's mental state was irrelevant. The only issue concerning Traster was whether he, rather than petitioner, was the driver. Under such circumstances, there was no inconsistency in the trial court's application of the evidentiary rules. Accordingly, the exclusion of evidence of Traster's arrest did not violate due process.

b. Petitioner's Statements Denying Culpability

Petitioner claims the exclusion of evidence that on the day of the incident she denied she had been driving the car violates her right to due process. At trial, the prosecutor presented Piunit's testimony that she overheard petitioner say shortly after the accident, "I can't believe I did this to poor" and then a man's name.*fn6 To counter this incriminating evidence, petitioner sought to introduce testimony from: (1) a witness who overheard petitioner say at the scene of the accident that she and Traster had switched places in the car, that everything had seemed fine, and that Traster had a suicide wish; (2) a paramedic who heard petitioner say in the ambulance that she had been in the passenger seat; and (3) a police officer at the hospital, to whom petitioner stated she had not been the driver. The trial court excluded all of this evidence on the ground that it was hearsay and did not fall within any of the exceptions to the hearsay rule. On appeal, petitioner argued that the evidence was admissible for the purpose of impeachment, specifically of petitioner, to the end that the jury would not believe petitioner's incriminating statement to Piunit. The Court of Appeal rejected this argument. The Court of Appeal also rejected petitioner's claim that the exclusion of the evidence violated her right to due process, the claim petitioner makes here.*fn7

This Court need not decide whether there was error in excluding the evidence of petitioner's statements because the exclusion of the evidence did not sufficiently prejudice petitioner to warrant habeas relief. Moreover, the evidence is weak at best, in that the statements are plainly self-serving, having been made at a time when petitioner had a motive to lie. By contrast, petitioner's earlier statement as related by Piunit, "I can't believe I did this to poor . . .," spontaneously uttered at the scene of the accident when there was no motive for her to lie, has far more convincing force.

In any event, the exclusion of petitioner's self-serving statements did not have a substantial impact on the verdict because other evidence in the case showing that petitioner was the driver was exceptionally strong. The only witnesses to the accident testified that petitioner was the driver and both experts testified that the physical evidence demonstrated petitioner was the driver. Accordingly, the exclusion of petitioner's self-serving statements did not have a substantial and injurious effect on the verdict so as to prejudice petitioner under Brecht and warrant habeas relief.

c. Absence of Admission to Police

Petitioner claims that her right to due process was violated by the exclusion of evidence that she never admitted to any police officer who questioned her that she was the driver of the vehicle. This evidence is wholly irrelevant. Moreover, to the extent any inference can be drawn therefrom favorable to petitioner, the exclusion of such evidence, for the reasons discussed above with respect to petitioner's statements denying she was the driver, did not have a substantial and injurious effect on the verdict such as to cause the requisite prejudice under Brecht to warrant habeas relief.


In light of the foregoing, the petition for a writ of habeas corpus is DENIED. All pending motions are terminated and the clerk shall close the file.


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