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United States District Court, Northern District of California

June 9, 2003


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


Freddie Lee Roberson ("petitioner") 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. Although given time to do so, petitioner has not filed a traverse.


Six armed robberies occurred over a 12-day period in 1995 in San Pablo, California. During the course of the last of these robberies, Duk Soo Kwon was shot and killed.

Joseph Hernandez ("Hernandez") testified that he was alone at home at about 6:30 p.m. on February 14, 1995, at which time someone knocked on his door and asked if he had any marijuana for sale. When he answered in the negative, two men broke down his door and entered. Both men were dressed in black, with the thinner of the two wearing a ski mask and the larger man wearing a green, rubber Halloween mask and carrying a short-barreled shotgun. The intruders took a bag of marijuana, firecrackers, a box of bottle rockets, and several other items. They threatened to kill Hernandez, and the larger man struck Hernandez in the knee with the shotgun and pointed the gun at his head, saying, "I'm gonna blow this motherfucker's head off." A police officer testified that he and another officer saw two men sitting in a red or maroon car near Hernandez's house. When Hernandez told them that the robbers had just fled in the direction of the car, the officers went back, but the car was gone. The police found firecrackers and a ski hat lying on the ground where the car had been parked. Hernandez estimated that the smaller and shorter man was 16 to 19 years old, and that the larger man was 19 to 20 years old.*fn1

Darius Houston ("Houston"), the store clerk at People's Market in San Pablo, testified that at about 7:30 p.m. on February 16, 1995, two men entered the store. The one wearing a green Halloween mask approached the counter, while the other man, who had no mask, stayed back, brandished a gun and said, "You know what this is, you got 30 seconds." Houston handed over money to the masked man, and when the other clerk, Jaime Henning, hesitated, the gunman said, "I am not playing, bitch." About two weeks later, Houston identified petitioner in a photo line-up as the gunman. Henning did not make an identification. At trial Houston was unable to either identify or exclude petitioner. Houston also testified that on September 21, 1995, a woman brought him a letter at the market, warning him to remain quiet or something would happen to him. A handwriting expert testified that the handwriting in the letter matched petitioner's.

Jose Cazares ("Cazares") testified that at about 8:00 p.m. on February 19, 1995, a man pointed a dark revolver at him while he was working in his food truck, the Rancho Pistales Taco Wagon ("Rancho Pistales"), and demanded money. Cazares handed a basket of money to the gunman, who passed it to a second man standing beside him, after which both men fled. Sheriffs Deputy Laura Mittlestadt testified that Cazares flagged her down and that within seconds, she saw two men running down the street by which, according to Cazares, the robbers had fled. One of the men stopped, and Mittlestadt arrested him. This man was David Dixon ("Dixon"), petitioner's 17 year-old half-brother. Cazares identified him as the gunman.

Shellon Lambert ("Lambert"), the mother of petitioner and Dixon, testified that her sons had been at her house, located near Rancho Pistales, prior to the robbery. Petitioner stepped outside with Dixon, and she heard them conversing; one of them said, "I've got the gun." Sometime later that evening, petitioner returned to the house by himself and told Lambert that Dixon had been arrested for a robbery, but not to worry because Dixon did not have a gun.

Dixon testified that he was the gunman, and denied that petitioner had been involved. He admitted using a .38 caliber revolver that he had stolen in a burglary several days earlier, and that he had thrown the gun away while he was being chased. He wrote a letter to petitioner after his arrest, stating in part: "The police was posted the back of Perelli's. They was saying it was a black male at the store, Don't go to the store. The boss man said he gonna call the police. He said he remember you. We could of got away if we wasn't running. I turned around and your ass was gone."

Richard Phillips ("Phillips") testified that he observed Dixon's arrest, and that about 15 minutes earlier, he had seen Dixon and another man waiting outside Perelli's Market, across the street from Rancho Pistales. Phillips waited in his car while his son went into the market. When his son greeted Dixon by name, the other man, who was standing in the market's doorway, turned away and said "Oh shit." Phillips noticed a bulge at the man's waistline, which he later told his neighbor and the police resembled a gun. From a photo lineup, Phillips identified this individual as petitioner; he did not, however, identify petitioner at trial. John Anthony Hernandez also testified that he saw Dixon being arrested. He told the police that about 20 to 30 minutes thereafter a man approached him with a dark revolver in his waistband, stated he was looking for his brother, asked if anyone had been arrested and whether Hernandez had found any money. At trial, Hernandez denied making this statement to the police. Approximately a month after the incident, Hernandez was shown a photo lineup and identified petitioner as the man who approached him. At trial, however, he did not make a positive identification of petitioner, testifying only that he "thought" the person he had identified looked like the man who had approached him.

Ronald Gaines ("Gaines") testified that at around 8:40 p.m. on February 20, 1995, two men, one armed with a gun, entered Hambrick's Quarter Pounder ("Hambrick's) restaurant, where Gaines was working. The gunman wore a ski mask, stood in the doorway of the employee area, and demanded money. Gaines handed the money to the other man, who was wearing a green ski mask. Gaines told the police that he recognized the gunman from the neighborhood as someone he knew as "Mike."*fn2 He explained to the police that he recognized the gunman's voice and that when the gunman entered the employee area he pushed up his cap, at which point Gaines could see his face. Gaines also identified petitioner as the gunman from a photo lineup. Gaines recanted at trial and testified that he never saw the gunman's face and that he had been a "little tipsy" at work on the day of the robbery. Gaines testified at trial only after he had been served with a subpoena and an arrest warrant had issued. As he told both the police and the court clerk prior to testifying, he was scared to testify against petitioner.

Bobby King ("King") testified that at about 9:00 p.m. on February 25, 1995, he was waiting on a customer at Dunn's Liquor Store ("Dunn's") when he saw a masked man pointing what looked like a .38 caliber revolver with a dark barrel at him. The gunman said, "You know what time it is." A second masked man approached King at the register to collect the money. According to King, both men were wearing Halloween masks, one green and one red. At trial King identified a green mask found in petitioner's girlfriend's apartment as one of the masks.

Luis Cardenas testified that just before 7:30 p.m. on February 26, 1995, he was at Perelli's Market with his wife and children when two masked men entered, one brandishing a silver-plated revolver. The gunman stood at the doorway wearing a dark ski mask and said, "It's a robbery." The other man, who was wearing a green Halloween mask, approached the register. Duk Soo Kwon ("Kwon"), the owner of the store, came running down the aisle and yelled, "What's going on?" The gunman shot Kwon and screamed, "Get the money and let's go." The two perpetrators then fled. The first police officer to arrive at the scene testified that Kwon was dead when he arrived. An expert criminalist testified that Kwon's wife, who had been at the register, told them that one of the perpetrators may have been holding onto the frame of an outer security door. One of petitioner's fingerprints was found on that door frame.

On March 1, 1995, the police conducted a parole search of the home of petitioner's girlfriend, Charmaine Marie Gordon ("Gordon"), an apartment where petitioner regularly stayed. Officer Humberto Alvarez testified that he was covering the rear of the apartment building and could hear the other officers knock and announce their purpose. A few seconds later, a man without a shirt leaned out of a bedroom window and threw a plastic baggie containing three bullets. Two other bullets were on the ground near the baggie. When the officers entered the apartment, petitioner, who was wearing only a pair of boxer shorts, was observed exiting one of the upstairs bedrooms. In that bedroom, the police found a red ski mask, a blue knit cap, and a shotgun that Hernandez identified as having the same type of grip and color as the gun used by the men who robbed him. There was expert testimony that petitioner's fingerprints were on the shotgun and on two of the shells with which it was loaded. The screen on the bedroom window was loose, and the police found a loaded .38 caliber revolver lying in the grass in the adjoining yard about 21 feet from that window. In a closet in another bedroom, the officers found a black hood and green rubber Halloween mask, which, as noted above, King identified as the green mask worn in the Dunn's robbery. Hernandez testified that the mask was similar to the mask worn by one of his assailants. Mrs. Kwon told the police that the mask was similar to the mask worn by one of the robbers of Perelli's Market, while another witness testified at trial that it was not the same mask, and a third testified that it was somewhat similar. The police also found petitioner's fingerprint on the wrapping on a box of bottle rockets, which Hernandez testified were the same brand and box number as the bottle rockets stolen from him.

An expert witness testified that there was a greater than 50% chance that the bullet found in Kwon's body came from the .38 caliber revolver found outside Gordon's apartment, and that in his opinion the bullet "was probably fired" by that gun. The expert also testified that two of the other bullets found outside the apartment window were made by the same machine as the bullet that killed Kwon.

Gordon testified on behalf of petitioner. According to Gordon's testimony, she and petitioner were together at the time Hernandez was robbed. She also testified that on the day of the incident at Perelli's Market, petitioner was with her and their four-year-old daughter. Shortly before 8:00 p.m., petitioner and their daughter stepped outside for a few minutes and then returned to the apartment. Petitioner was having trouble with his asthma and was short of breath. They eventually called an ambulance, which took petitioner to the hospital shortly after 1:00 a.m. Gordon also testified that her brother had kept a shotgun in her apartment during the time he lived there several months earlier. Gordon thought that her brother had removed it, but the shotgun found by the police looked like the one belonging to her brother. Gordon also testified that her brother had a gorilla Halloween mask, but that it did not look like the green mask found during the search. Gordon further testified that she had seen her seven-year-old son playing with firecrackers and bottle rockets, and that she owned a red Volkswagen Jetta, which she had let her brother, but not petitioner, drive.

Petitioner waived his right to a trial by jury. Thereafter, a judge of the Contra Costa County Superior Court found petitioner guilty of one count of murder, six counts of robbery, and six counts of possession of a firearm by a felon. The court also found true the allegations that petitioner had sustained five prior serious felony convictions and that petitioner had personally used a firearm in four of the robberies. The trial court sentenced petitioner to 209 years to life in state prison. The California Court of Appeal and the Supreme Court of California denied petitioner's direct appeals, in which he raised the same claims he raises in the instant petition.


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. Joinder of counts

Petitioner claims that the failure to sever the trial on the six different incidents violated his due process right to a fair trial. A joinder, or denial of severance, of counts may prejudice a defendant sufficiently to render his trial fundamentally unfair in violation of due process. See Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997). A federal court reviewing a state conviction under 28 U.S.C. § 2254 is not concerned with state law governing severance or joinder in state trials. See id. Nor is it concerned with procedural rights to severance afforded in federal trials. See id. Its inquiry is limited to the petitioner's right to a fair trial under the United States Constitution. To prevail, therefore, the petitioner must demonstrate that the state court's joinder or denial of his severance motion resulted in prejudice great enough to render his trial fundamentally unfair. See id. Such prejudice is shown if the impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict. Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000).

There is a "high risk of undue prejudice whenever . . . joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible." United States v. Lewis, 787 F.2d 1318, 1322 (9th Cir. 1986). In other words, the risk of prejudice is greatly increased when the evidence is not "cross-admissible" on the various charges. See Bean v. Calderon, 163 F.3d 1073, 1084-85 (9th Cir. 1998). The California Court of Appeal agreed with the trial court that the evidence was cross-admissible as to the charges alleged in four of the incidents, because those incidents were sufficiently similar to reflect a common "design, plan or modus operandi." In particular, the robberies at People's Market, Hambrick's, Dunn's and Perelli's Market, were all robberies of small businesses located in San Pablo, California, within a two-mile radius of each other and within a quarter to a half mile of the houses in which petitioner stayed. All occurred between 7:00 p.m. and 9:30 p.m. and within a 12-day period. In each of these four robberies, there were two perpetrators, each with a defined role: a gunman who did most of the talking from the doorway and his unarmed accomplice, or bagman, who collected the money from the cashier. Similar masks were worn in each of the incidents. At People's Market and Perelli's Market, the bagman wore a green Halloween mask; at Dunn's the gunman wore a green Halloween mask and the bagman wore a red Halloween mask; and at Hambrick's both men wore ski masks. Finally, the gunman at People's Market, Dunn's, and Hambrick's had a similar style of speech. At People's Market the gunman said: "You know what this is, you got 30 seconds . . . I'm not playing, bitch." At Hambrick's he said, "You know what this is, ain't no joke." At Dunn's he said, "You know what time it is." Petitioner argues that the above-described similarities are not sufficient to render the evidence cross-admissible for purposes of showing a common plan, design or modus operandi. This Court agrees with the California Court of Appeal that the similarities are sufficient, and, in any event, the admissibility of the evidence under California law is a state law determination by which this Court is bound. See Hicks v. Feiock, 485 U.S. 624, 629 (1988) (holding that a determination of state law by a state appellate court is binding in a federal habeas action).

Moreover, the risk of prejudice from joinder is diminished where the trier of fact compartmentalizes any evidence that is not cross-admissible and there is distinct evidence supporting the counts as to which the evidence is not cross-admissible. See Bean, 163 F.3d at 1085-86. Here, the trial court, the trier of fact in this case, plainly compartmentalized the evidence, stating, "[T]he Court does have to consider each count individually, each one is separate, rises or falls on its own merits and each count has to be proved beyond a reasonable doubt." RT at 1928. The trial court went on to state that it did not consider the evidence of the above-discussed four robberies in deciding whether petitioner was guilty of committing the other two robberies, the Hernandez and Rancho Pistales robberies, relying instead on the distinct evidence supporting those charges.*fn3 RT at 1928-29. Moreover, any risk of improper use of evidence is diminished where, as here, the trier of fact is not a jury, but instead a trial court judge who is cognizant of the legal necessity of compartmentalizing the evidence in accordance with its admissibility. Finally, where, as here, the trier of fact did not convict on all counts, presumably the trier of fact was able to compartmentalize the evidence. See Park v. California, 202 F.3d 1146, 1149-50 (9th Cir. 2000). Here, petitioner was acquitted on two counts of possession of a weapon by a felon;*fn4 the robbery-murder special circumstance was found not true; two enhancements for the personal use of a firearm were found not true; and one enhancement for being armed with a firearm was found not true.

Although prejudice can also arise when the evidence as to some of the counts is substantially weaker than the evidence on the other counts, see Bean, 163 F.3d at 1084-85, that was not the case here. In each instance, the prosecution's case against petitioner was based on a unique combination of direct and circumstantial evidence, with no particular combination being significantly stronger than another. Overall, the evidence supporting the various charges against petitioner was comparable in strength, diminishing the risk of prejudice from joinder of the charges.

Where, as here, the record reflects that the trier of fact adhered to the limits on the cross-admissibility of the evidence and compartmentalized the evidence so as not to consider evidence on charges for which the evidence was not otherwise admissible, and the evidence as to any one of the charges was not substantially weaker than that offered on any other, the joinder did not prejudice petitioner so as to violate his due process right to a fair trial.

2. Notice of Charges

Petitioner claims he was deprived of his constitutional right to notice of the charges of which he was convicted. The Sixth Amendment guarantees a criminal defendant a fundamental right to be clearly informed of the nature and the cause of accusation against him. See Calderon v. Prunty, 59 F.3d 1005, 1009 (9th Cir. 1995); Nevius v. Sumner, 852 F.2d 463, 471 (9th Cir. 1988). To determine whether a defendant has received fair notice of the charges against him, the court looks first to the information. See James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Lincoln v. Sunn, 807 F.2d 805, 812 (9th Cir. 1987). The principal purpose of the information is to provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare a defense. See James, 24 F.3d at 24; United States v. Lane, 765 F.2d 1376, 1380 (9th Cir. 1985).

Petitioner claims that the information did not give him notice of the charges against him with respect to the Perelli's Market, Dunn's and Rancho Pistales robberies because he was charged as the gunman but not convicted as such. An information is not constitutionally defective if it states "the elements of an offense charged with sufficient clarity to apprise a defendant of what to defend against," see Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.) (quoting Russell v. United States, 369 U.S. 749, 763-64 (1962)), amended, 768 F.2d 1090 (9th Cir. 1985), even if it does not state the method by which the crime was committed, see Calderon, 59 F.3d at 1009. Here, the trial court convicted petitioner on the murder and robbery counts arising from the Perelli's Market and Dunn's robberies, without finding petitioner was the gunman and, accordingly, did not find true the enhancements alleging personal use of a firearm in the commission of those offenses. The trial court convicted petitioner of the robbery of Rancho Pistales as the accomplice, and, accordingly, did not find true the enhancement alleging petitioner was armed with a firearm in the commission of that offense. Although the information alleged, respectively, that petitioner used and was armed with a firearm in the commission of these offenses, the information was not limited to the allegation that petitioner's role was as the gunman. Counts One and Two of the information allege, respectively, that petitioner murdered and robbed Duk Soo Kwon, (Perelli's Market); Count Eight alleges that petitioner robbed Jose Luis Cazares (Rancho Pistales); and Count Twelve alleges that petitioner robbed Bobby Ray King (Dunn's). Following each of these counts, the information goes on to state, "It is further alleged" that petitioner either personally used or was armed with a firearm. The firearms enhancements were in addition to the underlying charges; they were not a description of the exclusive means by which petitioner committed the underlying offenses. The information alleged that petitioner participated in the underlying offenses, thus informing petitioner that he would need to present a defense to participation in the commission of these offenses, whether as the gunman or accomplice. The additional allegation that petitioner used or was armed with a gun provides notice that the prosecutor additionally will endeavor to prove that petitioner was the gunman; the enhancements do not inform petitioner that the trier of fact could convict petitioner of the underlying offenses only if the trier of fact found that he was the gunman. Accordingly, the information did not violate petitioner's right to notice of the charges of which he was convicted in this case.

3. Insufficient Evidence

Petitioner also claims that his convictions of the Perelli's Market and Dunn's robberies violate his right to due process because they were supported by insufficient evidence. A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a constitutional claim, See Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, See id. at 324. A federal court reviewing collaterally a state court conviction does not determine whether the court itself is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt, may the writ be granted. See Jackson, 443 U.S. at 324.

Here, forensic evidence connected petitioner to the murder and robbery at Perelli's Market. As noted, when the police knocked on the apartment of petitioner's girlfriend and announced their presence, one officer saw a man without a shirt lean out of a bedroom window and discard a plastic baggie containing three bullets. Petitioner was then observed emerging from a bedroom wearing only pair of boxer shorts. Outside the bedroom window, the police found a loaded .38 caliber revolver, which a prosecution expert testified was "probably" the gun from which the bullet found in Kwon's body was fired. The expert also testified that some of the bullets found outside the window were made in the same machine as the bullet that killed Kwon. Moreover, Kwon's wife told the police that the green halloween mask the police found in the bedroom from which petitioner emerged was similar to the green halloween mask worn by one of the robbers, and petitioner's fingerprint was found on a door frame that she believed was touched by one of the robbers. Although another witness disagreed as to the mask and witness testified the gun found outside Gordon's window looked different than the gun used at Perelli's Market, the fact-finder reasonably could accept the testimony of Mrs. Kwon and the expert as more credible. Similarly, although the fingerprint could have been placed on the door frame on another occasion, it would not be unreasonable for the trier of fact to find it was placed there during the robbery. Further, the evidence that petitioner was at Perelli's Market a week before the robbery, that he was observed to have what looked like gun at his waistband, and that he said "Oh Shit" when Phillip's son greeted petitioner's half-brother by name, reasonably may be considered by the trier of fact either as evidence of a frustrated attempt to rob Perelli's Market on an earlier date or that Petitioner was "casing" the market with his brother. Finally, the letter Dixon wrote to petitioner stating that the "boss man" at Perelli's Market was going to tell the police about petitioner's involvement in the Rancho Pistales incident reasonably could be seen as providing a motive for petitioner to kill Kwon, the owner of Perelli's Market. In all, this evidence was sufficient for a reasonable fact-finder to conclude beyond a reasonable doubt that petitioner was one of the perpetrators of the robbery and murder at Perelli's Market.

Likewise, there was sufficient evidence to support petitioner's conviction of the Dunn's robbery. King, the robbery victim, testified at trial that the green halloween mask found in the search of petitioner's girlfriend's apartment "definitely" was the mask used in the Dunn's robbery. Petitioner contends that King's identification is unreliable because, shortly after the robbery, King described the mask as having gold around the eye holes and having more eye holes than the mask located at Gordon's apartment. From a photo lineup of masks, however, King identified the mask found in Gordon's apartment as the mask used in the robbery and, at trial, explained the reason for any discrepancy in his initial description. The trial court reasonably could have found King's explanation and identification of the mask credible. This evidence, in conjunction with the above-discussed evidence demonstrating the similarity between the Dunn's robbery and the other robberies to which petitioner was linked by additional evidence, was sufficient for a reasonable fact-finder to conclude beyond a reasonable doubt that petitioner committed the Dunn's robbery.

Accordingly, petitioner's right to due process was not violated based on an insufficiency of the evidence supporting his conviction on the murder and robbery charges arising from the Perelli's Market and Dunn's incidents.


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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