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SMART v. LAMARQUE

United States District Court, Northern District of California


July 16, 2003

NATHAN JAMES SMART, PETITIONER,
v.
A. LAMARQUE, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Charles Breyer, District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

STATEMENT OF THE CASE

Nathan James Smart was convicted in 1999 by a jury in the Superior Court of the State of California in and for the County of Sonoma of two counts of gross vehicular manslaughter while intoxicated (Cal. Penal Code § 191.5(a)) and one count of leaving the scene of an accident (Cal. Veh. Code § 20001(a)). The jury also found the following allegations to be true: (1) that Smart proximately caused death to more than one victim (Cal. Veh. Code § 23182); (2) that he personally inflicted great bodily injury on the victims (Cal. Penal Code §§ 667.5(c) & 1192.7(c)); and (3) that he fled the scene of the crime (Cal. Veh. Code § 20001(c)). The jury acquitted Smart on two counts of murder (Cal. Penal Code § 187(a)).

On August 13, 1999, the state trial court denied probation and sentenced Smart to a total determinate term of seventeen years imprisonment, less 571 days credit. The California Court of Appeal affirmed Smart's conviction on June 11, 2001, and the California Supreme Court denied review on September 19, 2001.

Smart then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on September 27, 2002, the Court found that the petition, liberally construed, stated cognizable claims under section 2254 and directed the respondent to show cause why a writ of habeas corpus should not be granted. The Attorney General for the State of California has filed an answer to the order to show cause; Smart has not filed a traverse.

BACKGROUND

Smart's convictions arose from a car accident in which two people died. The Court takes the following account from the opinion of the California Court of Appeal.

On July 29, 1998, at approximately 10:45 p.m. witnesses observed a Geo Metro proceed on Fulton Road, into the intersection with West College Avenue, on the green light. A second vehicle, driven by appellant, entered the intersection on West College Avenue, at an estimated speed of 80 to 85 miles per hour, and collided with the Geo Metro. The posted speed limit was 40 miles per hour. The Geo Metro "was pretty destroyed. The whole back end seemed missing[.]" Witnesses went to a nearby residence to call for assistance. The two occupants of the Geo Metro died at the scene of the accident of massive injuries.
As Officer Noland drove to the scene, he saw two men on West College Avenue walking away from the intersection with Fulton. They were approximately a half mile from the accident, and when he shined his spotlight on them, appellant ran away. When Officer Wallace responded to the scene, he observed appellant, approximately 350 yards from the intersection with Fulton Road, walking back on West College Avenue, towards Fulton. He pulled over to talk with appellant. He observed that appellant was bleeding near his left eye, and asked if appellant had been driving a car in the accident. Appellant replied, "Yeah, I was driving." Officer Wallace could smell alcohol on appellant's breath and observed that his speech was slow and slurred, and his eyes were red and glassy.
Officer Noland approached appellant as he sat in Officer Wallace's car, and asked him what caused the crash. Appellant replied, "Me." Appellant elaborated that he "[c]ouldn't stop on the red light and I think I slammed in the car. I don't remember." He admitted consuming some "Olde English and a Mickey's and Budweiser," and repeatedly stated, "I'm drunk." Officer Noland gave appellant a field sobriety test, which he failed, and placed him under arrest.
At the police station, Officer Noland used an Intoxilizer 5000 machine to test appellant's blood alcohol level. Two tests, one at 12:43 a.m., and the other at 12:44 a.m., showed a blood alcohol level of .13. A blood sample taken at 12:35 a.m. showed a .13 blood alcohol level, and a second, at 1:34 a.m. showed a .12 level.
Appellant also was advised of, and waived, his Miranda rights. He stated he began drinking a 40-ounce bottle of Olde English beer at about 4:30 p.m., and then drank a second 40-ounce bottle of beer. He left his residence after having an argument with his mother who warned him he would lose his license if he drove. He met his friend, Benjamin Schiewe, in Rincon Valley and had a third person buy them two 40-ounce bottles of beer because they were under age. Appellant drank half of his bottle while in Rincon Valley, and then drove with Schiewe to a Foster Freeze restaurant in downtown Santa Rosa, where he finished his third 40-ounce bottle of beer about 15 minutes before the crash.
Appellant stated that he remembered "seeing a red light, and when I stopped, the next think I know I hit the car." He did not recall his speed at the moment of the collision, but did recall that he earlier, had "put the pedal to the metal," and at one point was driving 100 miles per hour. He explained that he drove at that speed because he was "[d]runk and stupid," and "was driving fast, not caring bout nothin." He also admitted that he was "driving too fast, and didn't pay attention to the red light until too late." He saw the other car in the intersection, but hoped that he would pass the car before it hit him. After the collision, appellant crawled out the window of his car and walked away. He saw the victim's vehicle, and worried that he might have killed someone, but did not stop to help them.
Steve McJunkins, an expert in the analysis of blood alcohol content, was asked what the blood alcohol content would be, at 6:30 p.m., of a male weighing 160 pounds who consumed 40 ounces of beer, and 40 ounces of malt liquor between 4:30 and 6:30 p.m. He estimated that person would have a blood alcohol level of. 14. If that person consumed another 40-ounce malt liquor between 9:30 and 10:30 that person would have a blood alcohol level at 10:30 p.m. of .17 percent, and .13 at 12:30 a.m., assuming all the alcohol had been fully absorbed into the blood stream. McJunkins also testified that if the last 40 ounces consumed between 9:30 and 10:30 p.m. had not yet been absorbed into the bloodstream, the same person could have a blood alcohol level as low as .08 percent, immediately thereafter, and it would rise later in the evening as it was absorbed.
People v. Smart, No. A088617, unpublished op. at 1-3 (Cal. Ct. App. June 11, 2001) (Resp't Ex. F).

DISCUSSION

A. Standard of Review

This Court may grant a writ of habeas corpus with respect to any claim adjudicated on the merits in state court only when 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).

"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 the principle to the facts of the prisoner's case." Id. at 413.

"[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 in the holdings (as opposed to the dicta) of the Supreme Court at the time of the state court decision. Williams, 529 U.S. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for 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 state courts and must be "reasonably" applied. Clark, 317 F.3d at 1044.

B. Claims

Smart raises three claims for relief under section 2254: (1) the trial court's selection of an aggravated term of ten years violated Smart's due process rights; (2) two portions of the jury instructions on gross vehicular manslaughter created a mandatory presumption of dangerousness that incorrectly relieved the jury of its fact-finding duty; and (3) the jury instruction defining the concept of "proof beyond a reasonable doubt" violated Smart's due process rights by reducing the prosecution's burden of proof. Pet. at 7-8.

1. Selection of an Aggravated Term of Ten Years

Smart claims that the trial court's selection of an aggravated sentence of ten years violated his due process rights because "by any reasonable measure, the factors in aggravation did not outweigh the factors in mitigation." Pet. at 8. In his petition to the California Court of Appeal, Smart specifically asserted that the trial court erred by finding an aggravated factor based on "implied malice" even though the jury acquitted Smart of murder. See People v. Smart, unpublished op. at 6.

A criminal defendant is entitled to due process at sentencing. See Gardner v. Florida, 430 U.S. 349, 358 (1977). Accordingly, a federal court may call into doubt a state sentence imposed in violation of due process. See United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995); Walker v. Endell, 850 F.2d 470, 477 (9th Cir. 1987). For example, a federal court may question a state court's enhancement of a sentence based on materially false or unreliable information. See Hanna, 49 F.3d at 577; Walker, 850 F.2d at 477. A federal court must nevertheless defer to the state court's interpretation of its state sentencing laws. Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993). "Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief." Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).

In the present case, the California Court of Appeal rejected Smart's claim that the state trial court's selection of an aggravated term of ten years violated his due process rights. People v. Smart, unpublished op. at 5-6. The Court of Appeal explained that facts showing Smart's conduct went beyond "gross negligence" justified an aggravated term under California Rule of Court 4.421(a)(1) (renumbered rule 4.421 effective January 1, 2001). Id. (citing People v. Castorena, 51 Cal.App.4th 558, 562 (1996)). The Court of Appeal also noted that the facts in Smart's case supported a finding that his crime involved "a high degree of . . . callousness." People v. Smart, unpublished op. at 7. This finding triggers an aggravated term under rule 4.421(a)(1), regardless of whether the defendant had the specific mental state of "implied malice." Id.

The Court of Appeal further reasoned that even if the trial court had erred in finding an aggravating factor under rule 4.421(a)(1), the error could not have been prejudicial. Id. at 8. The trial court had stated that if it had not found an aggravating factor under rule 4.421(a)(1), it still would have selected an enhanced sentence term based on other findings that Smart: (1) had numerous prior juvenile adjudications for theft, vandalism, and carrying a knife (rule 4.421(b)(2)); (2) had performed poorly on probation (rule 4.421(b)(5)); (3) was underage and obtained his alcohol illegally; (4) had acted as a leader by inducing another minor, Benjamin Schiewe, to help him obtain more alcohol; and (5) had endangered Schiewe by taking him as a passenger in his car. Id. In mitigation, the trial court had found only that Smart was inexperienced, had no prior record of driving while intoxicated, and had "shown some remorse." Id. Based on these findings, the Court of Appeal held that Smart had not demonstrated that the trial court abused its discretion in concluding the aggravating factors outweighed the mitigating factors. Id. at 8-9 (citing People v. Evans, 141 Cal.App.3d 1019, 1022 (1983)).

The California Court of Appeal's conclusion was reasonable. Habeas relief is not available for a state court's misapplication of its own sentencing laws, and Smart has not demonstrated any fundamental unfairness in his sentencing because the record supports the selection of an aggravated term, regardless of whether rule 4.42 1(a)(1) applies. See Christian, 41 F.3d at 469; Bueno, 988 F.2d at 88. Furthermore, the trial court's finding that the aggravating factors outweighed the mitigating factors was a reasonable determination of the facts. Habeas relief based on the trial court's selection of an aggravated sentence is not in order. See 28 U.S.C. § 2254(d).

2. Jury Instructions Creating a Mandatory Presumption of Dangerousness
Under California Jury Instruction, Criminal ("CALJIC") No. 8.93, gross vehicular manslaughter requires the jury to find that the defendant committed an unlawful act that was "dangerous to human life under the circumstances of its commission." Smart asserts that two additional parts of the jury instructions on gross vehicular manslaughter created a mandatory presumption of dangerousness that erroneously relieved the jury of its fact-finding duty. Pet. at 7-8.

The Due Process Clause prohibits presumptions in a jury charge that relieve the State of its burden of persuasion beyond a reasonable doubt for each element of a crime. See Yates v. Evatt, 500 U.S. 391, 400-02 (1991); Francis v. Franklin, 471 U.S. 307, 313 (1985); Sandstrom v. Montana, 442 U.S. 510, 520-24 (1979). If a jury instruction erroneously creates such a presumption, the petitioner must then demonstrate that the error had a substantial and injurious effect or influence on the jury's verdict. See Calderon v. Coleman, 525 U.S. 141, 146 (1998); Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

In determining whether an instruction created an impermissible presumption, a federal court must consider the challenged instruction in the context of all the jury instructions and the complete trial record. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). A reviewing court's principal constitutional inquiry is whether a reasonable likelihood exists that the jury applied the challenged instruction in violation of the Constitution. See id.

a. CALJIC No. 8.93

The trial court used part of CALJIC No. 8.93 to instruct the jury that "[t]he commission of an unlawful act with gross negligence would necessarily be an unlawful act dangerous to human life under the circumstances of its commission." People v. Smart, unpublished op. at 11. Smart claims that the instruction created a mandatory presumption of dangerousness by labeling the commission of an unlawful act with gross negligence as inherently dangerous to human life. Pet. at 7-8.

The California Court of Appeal found that the instruction did not create a mandatory presumption of dangerousness but instead stated "a point of law not subject to dispute." People v. Smart, unpublished op. at 11-12 (citing People v. Thompson, 79 Cal.App.4th 40, 61 (2000)). In Thompson, the California Court of Appeal had explained that, based on CALJIC No. 3.36, gross negligence "requires a finding that death be a reasonably foreseeable consequence of the negligen[t] conduct" and that "where death is a reasonably foreseeable consequence of an unlawful act committed while driving, the underlying conduct is necessarily dangerous to human life." 79 Cal.App.4th at 59.

The California Court of Appeal's rejection of Smart's instructional error claim for CALJIC 8.93 was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. See U.S.C. § 2254(d). Thompson is a reasonable determination of state law and its application to this case is therefore binding. See Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000) (holding that federal courts are bound by a state court's interpretation of its own law); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (same). Smart is not entitled to federal habeas relief on his instructional error claim based on CALJIC 8.93. See 28 U.S.C. § 2254(d).

b. CALJIC No. 8.95

The trial court relied on CALJIC No. 8.95 to instruct the jury that "a violation of the basic speed law is the commission of an act inherently dangerous to human life and safety." People v. Smart, unpublished op. at 12. Smart maintains that the instruction incorrectly created a mandatory presumption of dangerousness by informing the jury that a violation of the basic speed law is dangerous regardless of the circumstances in which the violation occurs. Pet. at 7-8.

The California Court of Appeal found that the instruction erroneously created a mandatory presumption of dangerousness. People v. Smart, unpublished op. at 12. However, the court held the error to be harmless because other instructions required the jury to find all elements of gross vehicular manslaughter. Id. In particular, CALJIC No. 8.93 required the jury to determine whether Smart's conduct was "dangerous to human life under the circumstances of its commission." Id.

The California Court of Appeal's rejection of Smart's instructional error claim for CALJIC 8.95 was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. See U.S.C. § 2254(d). The record shows that Smart was driving approximately eighty to eighty-five miles per hour when he entered the intersection and collided with the Geo Metro. Resp't Ex. F/1. Smart admitted that he was drunk, that he was driving too fast to stop at the red light, and that he caused the collision. Resp't Ex. F/2-3. Tests later showed that Smart's blood alcohol level was .13 percent. Resp't Ex. F/2. These facts indicate that Smart's conduct was dangerous under the circumstances, as required by CALJIC 8.93, and that the jury was not reasonably likely to apply the incorrect instruction in violation of the Constitution. See Estelle, 502 U.S. at 72. In addition, the erroneous instruction could not have had a substantial and injurious effect on the verdict. See Calderon, 525 U.S. at 146. At minimum, the California Court of Appeal's determination that any error had been harmless was reasonable, and the court's rejection of Smart's claim must stand. See Early v. Packer, 123 S.Ct. 362, 366 (2002).

3. Jury Instruction Defining "Reasonable Doubt"

Smart contends that CALJIC No. 2.90, the jury instruction defining the concept of "proof beyond a reasonable doubt," erroneously permitted a finding of guilt on a lesser standard than due process requires. Pet. at 8. CALJIC No. 2.90 was revised in 1994 after the Supreme Courtnoted that the instruction's use of the terms "moral evidence" and "moral certainty," although not constitutionally fatal, was troublesome. See Victor v. Nebraska, 511 U.S. 1, 7-17 (1994) (stating that the term "moral certainty" in CALJIC 2.90 is not reasonably likely to suggest a lesser standard of proof than due process requires). The revision deleted all references to "moral certainty" and "moral evidence" and added the term "abiding conviction." See CALJIC 2.90. Smart challenges the addition of the term "abiding conviction." Pet. at 8. Unfortunately for Smart, the Ninth Circuit has held that the post-Victor revision of CALJIC No. 2.90 passes constitutional muster. See Lisenbee v. Henry, 166 F.3d 997, 999-1000 (9th Cir. 1999). Smart's claim based on CALJIC No. 2.90 is without merit. See id.

CONCLUSION

After a careful review of the record and applicable law, the Court is satisfied that the petition for writ of habeas corpus should be DENIED.

The clerk shall enter judgment in favor of the respondent and close the file.

SO ORDERED.

The Court having denied the petitioner's petition for a writ of habeas corpus, judgment is hereby ENTERED in favor of respondent and against petitioner.

SO ORDERED.

20030716

© 1992-2003 VersusLaw Inc.



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