IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
September 6, 2005
COREEN KAY SANCHEZ, PETITIONER,
GLORIA A. HENRY, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Claudia Wilken United States District Judge
Petitioner Coreen Kay Sanchez filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of her State conviction.*fn1 In an Order dated November 13, 2003, the Court directed Respondent to show cause why habeas relief should not be granted. Respondent has filed an answer to the petition along with a memorandum of points and authorities and exhibits in support thereof. Although granted the opportunity to do so, Petitioner has not filed a traverse. For the reasons discussed below, the Court DENIES the petition.
Petitioner was convicted by a jury in Humboldt County Superior Court of possession and manufacture of methamphetamine. She was sentenced on October 8, 1997, to eleven years and eight months in prison. The judgment of conviction was affirmed on appeal by the California Court of Appeal on January 12, 1999, and review was denied by the California Supreme Court on February 19, No. C 02-1806 CW (PR) Related case: C 01-1904 CW ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS 1999. Petitioner filed several State habeas petitions, all of which were denied. The two petitions filed with the California Supreme Court were denied, respectively, on June 28, 2000, and January 29, 2002.
Petitioner filed this federal habeas action on April 16, 2002.*fn2 The Court ordered Respondent to address the following four claims for relief: (1) the evidence was insufficient to support a conviction for manufacturing methamphetamine, in violation of due process; (2) instructional error based on jury instructions that failed to explain an essential element of the offense, in violation of the right to have the jury decide all factual issues; (3) trial court error based on the court's refusal to disclose the identity of confidential witnesses, in violation of due process; and (4) prosecutorial misconduct.
STANDARD OF REVIEW
A federal writ of habeas corpus 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 claims: "(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 Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings of the Supreme Court as of the time of the relevant State court decision. Id. at 412. But circuit law may be persuasive authority for purposes of determining whether a State court decision is an unreasonable application of Supreme Court law. Clark v. Murphy, 331 F.3d 1062, 1070-71 (9th Cir.), cert. denied, 540 U.S. 968 (2003).
In determining whether the State court's decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the decision of the highest State court to address the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). If no reasoned decision exists, an independent review of the record is the only means of deciding whether the State court's rejection of the claim was objectively reasonable. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
If constitutional error is found, habeas relief is warranted only if the error had a "'substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
STATEMENT OF FACTS
In its written opinion, the California Court of Appeal summarized the facts as follows:*fn3 *fn4
At 8:40 a.m. on October 15, 1992, police officers assigned as agents to the Humboldt County Drug Task Force executed a search warrant on appellants' 40-acre parcel of property in the Redwood Valley region of Humboldt County. In order to ensure officer safety and the preservation of evidence, the police took all possible steps to maintain maximum secrecy about the location and timing of the search prior to its execution. The police had to proceed uphill on a rough dirt road several miles through a remote rural area, park their four-wheel drive vehicles before reaching two locked metal gates, and then proceed on foot over a mile further in order to get to appellants' residence. After announcing their presence and being admitted by appellants' juvenile son, the officers found appellants in the upstairs bedroom.
The officers searched the house, the adjacent premises, and vehicles parked nearby. On the bed in the bedroom shared by appellants the police found a pair of size "36x30" blue jeans with a canister in the back pocket containing 0.272 grams of methamphetamine. Inside a nylon gym bag on the living room floor were a plastic bag and a glass jar containing a total of 337.6 grams of methamphetamine, with an estimated street value of between $4,000 and $6,000, together with triple beam scales; measuring spoons; a spatula; and a container of nicotinamide, a B-complex vitamin often used as a cutting agent with narcotics. Inside a backpack found in the downstairs area was a .35-millimeter film canister containing two packages with a total of 2.25 grams of methamphetamine; a wallet containing appellant Sanchez's identification; receipts listing Sanchez's mail address at post office box 2620, McKinleyville, California; welfare receipts and stickers; a copy of the birth certificate of Lashawna Lynn Sanchez dated September 21, 1971; a daily planner; a slip of paper with the name "Shawna" written on it; and handwritten notes with references to chemicals and suspected "payand-owe" records listing names, amounts of money, and apparent weights using the abbreviations "oz" and "lb." In the downstairs area the police also found two plastic baggies of suspected methamphetamine in the drawer of a dresser under the stairs just off the living room, and a metal can labeled "L-methionine" containing rubber gloves and tubing. "L-methionine," a B-Vitamin, is commonly used as a cutting agent for narcotics. Based on this evidence, criminalist experts opined the methamphetamine found in appellants' house was possessed for sale.
Outside the house, the police found a second set of triple beam scales. Under an orange tarp in the yard approximately 35 to 40 feet from the front door of the house, the officers found the essential components of a methamphetamine laboratory. Among other things they discovered were a metal five-gallon container of freon, originally orange but painted black and valued at approximately $1,000; ephedrine tablets, some of which had been mashed; a bottle of hydriodic acid; small pumps, plastic tubing, rubber gloves and a respirator; coffee filters encrusted with methamphetamine; a container of red phosphorous; a two-liter bottle of nicotinamide; two gallons of hydrochloric or muriatic acid; and three pounds of aluminum foil. Ephedrine and hydriodic acid are essential to the manufacture of methamphetamine. Each of the other items found under the tarp are useful and commonly employed in the manufacture of methamphetamine by means of the method known as reduction of ephedrine using hydriodic acid and red phosphorus.*fn5
Although many of these items have legitimate uses, the combination of materials found together indicates they were possessed for the purpose and with the intention of manufacturing methamphetamine. Thus, rubber gloves are used to protect the hands from acidic substances; a respirator is used to protect individuals from harmful vapors; pumps and tubing are used to transport water in the cooling stage; and aluminum foil is placed in contact with hydrochloric acid to generate hydriodic acid. Because the bright orange containers in which freon is sold attract the attention of law enforcement, methamphetamine manufacturers commonly paint such containers black. Police criminalists concluded the materials found in appellants' front yard had already been used to manufacture methamphetamine because that drug was found encrusted on the coffee filters. An analysis of the methamphetamine found in the appellants' house indicated it had been manufactured by means of the identical process of ephedrine reduction using hydriodic acid and red phosphorus for which the laboratory materials found outside the house had evidently been employed.
A Nissan truck parked outside appellants' residence was registered in appellant Sanchez's name. Inside the truck police found a spiral notebook labeled "week-at-a-glance-appointments," with a notation stating that "[t]his book is property of Reen" at post office box 2620 in McKinleyville, and reference to "Shawna's birthday" on September 21 and "Frank's birthday" on September 25. The parties stipulated that appellant Sanchez's daughter, Lashawna, has a birthday on September 21, and her son Frank Sanchez, Jr., has a birthday on September 25. The back page of the notebook contained handwritten notations to "[p]lace orders for ... 12,000 mini white cross, thick, 800-237-3759," and "[s]end COD too [sic] Shawna's address in Arcata. Too [sic] Frank's address in McKinleyville."*fn6 Frank Sanchez, Sr., appellant Sanchez's former husband, rented property at 2295 Walnut in Arcata in 1992. Frank Sanchez, Jr., lived at that same address at the time. The notated telephone number was the toll-free number of Nationwide Purveyors, Inc., a mail order company. In July 1992, Nationwide Purveyors shipped 12,000 .25-milligram ephedrine tablets, specifically referenced as "mini white cross" tablets to Frank Sanchez at 2295 Walnut Avenue in Arcata.
The police found numerous weapons on appellants' property. Among other weapons, they seized two rifles, one loaded with the safety off and ready to fire, from a rack near the front door; a .25-caliber semiautomatic pistol from a metal box behind the living room couch; a loaded rifle from a General Motors pickup truck registered to appellant Sanchez; two loaded rifles and a shotgun from a trailer on the premises; a loaded firearm from a Toyota vehicle registered to appellant Sanchez; and a magnum revolver found in another vehicle located on the property.
In their defense, appellants offered the testimony of private investigator Robert Cloud, who visited appellants' Redwood Valley property several times following the October 1992 search. Cloud testified that he found no evidence of methamphetamine manufacture at appellants' property. During one of his visits, for which he had previously arranged to meet Sanchez at the residence, Cloud detected the chemical odor of methamphetamine production coming from somewhere down the hill from appellants' residence. Cloud was "not exactly clear on where the lines of this particular property are in relationship to where the house is," and did not know "that it was necessarily coming from the Sanchez property but clearly it was fairly close behind . . . ." Knowing that methamphetamine producers are usually armed, Cloud did not investigate the source of the odor but, instead, left immediately out of concern for his personal safety. Cloud never located Sanchez, although she was supposed to meet him there at that time.
Appellants' waists were measured during trial in October 1997. At that time, appellant Severe had a waist size of 42, and Sanchez had a waist size of 44. No evidence was offered of the waist size of either appellants [sic] in October 1992, five years earlier.
Several defense witnesses testified they had known the appellants for years and never saw any evidence of any involvement by either appellant in drug activity. Frank Sanchez, Sr., denied receiving any ephedrine shipment at his home ad [sic] 2295 Walnut in Arcata. His son, Frank Sanchez, Jr., also lived at that address. Frank, Sr., worked the night shift, and slept during daylight hours; he would not necessarily be aware of a delivery to the house which Frank, Jr., may have accepted during the day.
Brian Phillips had helped appellants with their vehicles. He observed a heavy caterpillar tractor digging an "enormous" hole on appellants' property; he "didn't know what it was" for, but "presumed" it was for a septic tank. Deborah Beebe had known Sanchez for over 20 years and Severe for about 10 years. She never saw anything on their property that she "would suspect would be related with a drug lab," although she acknowledged she did not know what a drug lab looked like. Beebe claimed Sanchez "couldn't make brownies from scratch," much less methamphetamine.
Lashawna Sanchez, appellant Sanchez's daughter, testified that she had been assaulted by a neighbor of appellants', Douglas S., and that both she and appellant Sanchez had been repeatedly "harassed" by Douglas and others. Lashawna also testified she had never observed either appellant manufacturing or trafficking in methamphetamine, and denied receiving any shipments of ephedrine or knowing what it was.
Tim Murphy, an attorney, testified he had visited the subject property in 1992 in connection with a dispute between appellants and the contractor who had dug the hole in their property. When the contractor had asked appellants for payment, they claimed the work had been done improperly by making the hole too large for a septic tank. Although Murphy never saw anything that looked like it might be a drug lab, he did observe an orange tarp on the property. Thomas Allen, a California Highway Patrol investigator, testified that appellants reported suspected nighttime drug activity on unspecified property of their neighbors. After Allen advised appellant Sanchez to contact him when the suspected drug activity was actually taking place so he "could get an idea of where it was happening exactly," he never heard from appellants again.
The parties stipulated that, if called, two chemists with the California State Environmental Protection Agency would have testified they were at the scene of the search on October 15, 1992, and found no evidence of the operation of a drug laboratory or the manufacture of any controlled substance.
Appellant Sanchez testified in her own defense. Sanchez denied any criminal acts. She related various disputes with her neighbors, and claimed several of them had engaged in drug activity. Although she and appellant were sleeping in the upstairs bedroom when the police arrived, she did not know who owned the blue jeans found on the bed in that room. She did not remember the dresser the police found under the stairs in her home; "it doesn't look familiar to me." Sanchez claimed she owned all the firearms found on the property. Although Severe lived with her, Sanchez denied he had access to the weapons or that they were available for his use. She acknowledged that Severe was "a felon for growing pot" and "there was something in his probation" that prevented him from possessing firearms.
Although Sanchez first testified on direct examination that she and Severe always left the gates to their property unlocked when they were there, later she testified the police must have made prior arrangements with her neighbors to get on her property on the day of the search because the gates were locked. Sanchez testified to many alleged details about the police search of her residence, including the precise time they "kicked open the door," the alleged fact the police did not observe her standing on the landing of the stairway right in front of them while they searched the downstairs portion of the house, and the alleged fact she had locked the gates to her property that day because she had found one of her guns "out of place." However, she claimed she could not recall anything about the incriminating evidence found by the police on her property because it was "[f]ive years [ago] and probably a lot longer than that and ... my memory isn't as sharp as -- and I don't think anybody else is either so -- " Sanchez denied recognizing the blue gym bag or the plastic bags found inside it. She did admit ownership of the backpack found by the police in the living room, and acknowledged that the wallet and Medi-Cal identification cards found inside the backpack were hers. However, she did not recognize the notebook found in the backpack, although she admitted the handwriting in the notebook "appears to be mine." Sanchez also denied recognizing a chemical company brochure found in her backpack, and denied that she had been keeping it there. She claimed no recollection of the pay-owe sheets found in the backpack, and could not think of any business-related explanation for the references and numbers on the papers. Sanchez denied any knowledge of what hydrogen chloride or hydrochloric acid are, and denied any knowledge of how pieces of papers with those chemical names written upon them appeared in her backpack. Sanchez gave similar testimony regarding other notebooks, appointment books, and papers found on the property; although the notations were written in what she admitted "appears" to be her handwriting, she denied making most of them.
Although during her testimony Sanchez herself used the name "Shawna" to refer to her daughter, she subsequently refused to acknowledge that she ever referred to her daughter by that name, and repeatedly insisted that she always referred to her daughter as "LaShawna." Sanchez claimed not to know where her daughter was living in 1992.
People v. Sanchez, et al., A081383, 2-8 (Jan. 12, 1999)(Opinion).
I. SUFFICIENCY OF THE EVIDENCE TO SUPPORT MANUFACTURING CONVICTION
On appeal, Petitioner conceded that the prosecution presented sufficient evidence to establish: (1) that she possessed methamphetamine for sale; (2) that she possessed the chemical precursors of methamphetamine with the intent to use them to manufacture methamphetamine; (3) that she possessed most, but not all of the equipment necessary to begin manufacturing methamphetamine; and (4) that the equipment likely had been used at some point in the past. She argued, however, that the evidence was insufficient to support the conclusion that she actually did manufacture methamphetamine, and therefore her conviction for manufacturing methamphetamine in violation of Health and Safety Code section 11379.6 must be overturned. In support of this assertion, Petitioner pointed to the testimony of prosecution witnesses to the effect that the methamphetamine manufacturing equipment found in the front yard was not in operation at the time of the search, no toxic residue was discovered on the site such as is customarily associated with the operation of a methamphetamine laboratory, and no redaction vessels or caustic soda were found.
Relying upon Jackson v. Virginia, 443 U.S. 307 (1979), and California cases in which the standard "is entirely consistent with controlling federal law," Opinion at 15 (citing Jackson, 443 U.S. at 318-19; In re Winship, 397 U.S. 358, 362 (1970)), the California Court of Appeal rejected Petitioner's claim. First, the court set out the relevant statutory language:
Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance [including methamphetamine] shall be punished by imprisonment in the state prison ....
Id. at 16 (quoting Health & Saf. Code § 11379.6(a)).
Next, the court reviewed the evidence before it: Although it would obviously have provided even more compelling circumstantial evidence of the offense of manufacturing methamphetamine had the police detected toxic residue on appellants' property, discovered cooking vessels used in the process, or determined that the lab was in actual operation at the time they found it, such evidence was not in fact necessary or critical to the People's case. The charged offense was amply established by other substantial evidence. This evidence included, but was not limited to, the following: (1) large quantities of methamphetamine, "pay-owe" sheets, receipts and other incriminating documentation were found inside appellants' residence, indicating that appellants trafficked in methamphetamine; (2) virtually all the necessary chemicals and equipment necessary for a methamphetamine laboratory were located in a single place on appellants' property not far from their front door; (3) coffee filters found with the other chemicals and equipment on appellants' property were encrusted with methamphetamine, indicating the laboratory had already been used to manufacture methamphetamine; (4) all the methamphetamine discovered in appellants' residence had been manufactured by means of the same particular method or process for which the particular chemicals and supplies actually found in the laboratory would be used; (5) the laboratory was on a large 40-acre parcel in a remote rural location difficult to access, on which only appellants and their young son lived; (6) the chemicals found in the laboratory site were worth at least $1,000, making it unlikely someone else had left them there in an attempt to "set up" appellants; and (7) there was strong circumstantial evidence appellants ordered 12,000 .25-milligram tablets of ephedrine just three months before the laboratory was discovered.
Thus, for purposes of this jury trial, the facts cited by appellants -- no toxic residue was detected on the site, certain necessary materials were not found, and the lab was not discovered in "mid-production" -- do not defeat the reasonable conclusion that appellants were manufacturing methamphetamine in this case.
Id. at 16-17.
The court next addressed the argument that there was evidence that Petitioner and Severe had been "set up" by neighbors and the methamphetamine production actually was occurring on other property adjoining theirs:
The jury was clearly entitled to reject these assertions. There was substantial evidence the laboratory equipment found on appellants' remote rural property, directly in front of their house, had already been used to manufacture the same kind of methamphetamine found in abundance inside appellants' residence. The lack of identifiable fingerprints on the laboratory materials, and the defense testimony regarding conflicts between appellants and their neighbors, simply went to the weight and not to the sufficiency of this evidence.
With regard to appellants' alleged evidence there was methamphetamine production taking place on neighboring property, this evidence was at best ambiguous. Defense investigator Robert Cloud testified that in the course of one visit to appellants' property, during which he could not find Sanchez even though he had an appointment to meet her there at that time, he smelled the strong chemical odor of methamphetamine production coming from somewhere in the near vicinity. In contrast to appellants' assertions in their briefs to this court, Cloud never testified the odor was coming from neighboring property. To the contrary, he admitted he was "not exactly clear" on the location of appellants' property line, acknowledged he only smelled the chemical odor once he actually got to appellants' house, and specifically testified he "picked up the odors fairly significantly all along [appellants'] house" before he hastily left without any further investigation. In our opinion, this testimony actually supports appellants' conviction.
Id. at 17-18.
In conclusion the court held, "based on our thorough review of the record, we conclude the evidence adduced at trial was more than sufficient to support appellants' conviction of methamphetamine manufacturing." Id. at 18.
B. Applicable Federal Law
As a matter of federal constitutional law, "'the Due Process Clause 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.' In re Winship, 397 U.S. 358, 364 (1970); see also Herrera v. Collins, 506 U.S. 390, 402 (1993) (noting that 'a conviction based on evidence that fails to meet the Winship standard' is an 'independent constitutional violation')." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a State conviction on federal due process grounds. Id. In Jackson v. Virginia, the Supreme Court held that "'the relevant question is 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.'" Id. (quoting Jackson, 443 U.S. at 319). After AEDPA, the Jackson standard is applied with an additional layer of deference to the State courts. Id. (citing 28 U.S.C. § 2254(d)).
In this case, the California Court of Appeal identified the relevant standards of review as those set out in Jackson and Winship, and applied California cases which state standards "entirely consistent with the controlling federal law." Opinion at 15 (citing Jackson, 443 U.S. at 318-19; Winship, 397 U.S. at 362). The standards applied by the State court were not contrary to Supreme Court precedent. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Accordingly, the Court asks whether the decision of the California Court of Appeal "reflected an 'unreasonable application of' Jackson and Winship to the facts of this case." Juan H., 408 F.3d at 1275 (citations omitted). An unreasonable application means that the State court's application was "objectively unreasonable." Id. at n.13 (citing Williams, 529 U.S. at 409).
Although sufficiency of the evidence review is grounded in the Fourteenth Amendment, the inquiry is undertaken with reference to the elements of the criminal offense as set forth by State law. Id. at 1275-76 (citing Jackson, 443 U.S. at 324 n.16). Here, the relevant law provides that "every person who manufactures... either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance [including methamphetamine] shall be punished by imprisonment in the state prison...." Health & Saf. Code § 11379.6(a)). The crime of manufacturing methamphetamine is "intended to criminalize all acts which are part of the manufacturing process...." People v. Heath, 66 Cal. App. 4th 697, 705 (1998). Because the manufacture of methamphetamine is "an incremental and not instantaneous process," People v. Lancellotti, 19 Cal. App. 4th 809, 813 (1993), the cumulative nature of the evidence in a case can provide substantial proof that the manufacturing process was in progress. See id. A defendant "is not entitled to acquittal because his clandestine laboratory did not contain in one place 'all the chemical ingredients and materials needed to make [a controlled substance]' and was not 'bubbling and reacting when the police arrived.'" Id. (quoting People v. Jackson, 218 Cal. App. 3d 1493, 1504 (1990)).
The evidence in Petitioner's case, when viewed in the light most favorable to the prosecution, was sufficient to allow any rational trier of fact to conclude that Petitioner committed the crime of manufacturing methamphetamine. Jackson, 443 U.S. at 319.
The State court's denial of this claim was not an unreasonable application of clearly established United States Supreme Court precedent. 28 U.S.C. § 2254(d). Accordingly, this claim for relief is denied.
II. INSTRUCTIONAL ERROR
Petitioner contends that she was denied due process because the trial court instructed the jury erroneously on the elements of manufacturing methamphetamine.
The trial court instructed the jury pursuant to California Jury Instructions-Criminal (CALJIC) No. 12.09.01 that to find Petitioner guilty of manufacturing methamphetamine under California Health and Safety Code § 11379.6(a) it must find:
One, a person manufactured either directly or indirectly by chemical extraction or independently by means of chemical synthesis;
Two, a controlled substance, namely methamphetamine; Three, that person had the specific intent to manufacture a controlled substance, namely methamphetamine.
CT 678-79; RT 2235.
The court also instructed the jury on the count two charge of possessing the precursor chemicals with the intent to manufacture methamphetamine, and on the crime of possession of methamphetamine as a lesser included offense to the count one manufacturing charge. CT 682-85; RT 2236-38.
On appeal Petitioner argued that the jury might have convicted her of manufacturing methamphetamine without finding that the manufacturing process had been initiated. Thus, she argued that it was reversible error for the trial court to omit the following addition to CALJIC No. 12.09.01:
The defendant may not be convicted of manufacturing methamphetamine unless defendant had, at some point, at least begun the process of converting the raw chemicals into the controlled substance. Mere possession of the lab equipment, or mere preparation to manufacture, without more is insufficient to convict.
Appellants' Opening Brief on Appeal (Respondent's Exh. 3) at 23. That is, the jury must find not only that the defendant possessed the lab equipment necessary to manufacture the drug, but also that manufacturing was taking place, or already had taken place. (Id.)
The court of appeal rejected Petitioner's claim, holding as follows:
The proffered instruction was wholly unnecessary. The instruction given by the trial court explicitly required the jury to find that appellants "manufactured" methamphetamine. "As used in [Health and Safety Code] section 11379.6, subdivision (a), the words 'manufactures,' 'produces' and 'processes' do not have separate technical meaning apart from those attributed to them in general usage. [Citation.] Both the dictionary definition and the commonsense, everyday usage of these terms entail notions of the ongoing and progressive making, assembly or creation of an item by hand or machine. [Citation.] The ongoing and progressive making, assembly or creation of [methamphetamine] from its component chemicals may, but does not necessarily by definition, include the culmination of the manufacturing process, the finished [methamphetamine] product." People v. Jackson (1990) 218 Cal.App.3d 1493, 1503, [emphasis] added, fn. omitted; accord People v. Combs, [ ] 165 Cal.App.3d at p. 427.)
Courts are not required to instruct juries on the everyday meanings of words in common usage, which are presumed to be within the understanding of persons of ordinary intelligence. [Citation.] In this case, then, the jury would have understood from the ordinary, everyday meaning of the words "manufactures" and "manufactured" that it was required to find at least that appellants were involved in the "ongoing and progressive making . . . or creation" of methamphetamine "from its chemical components." In order to make such a finding the jury necessarily must have found that appellants had initiated the chemical conversion process. Accordingly, based on the ordinary, everyday meaning of the verb "manufacture" as used in the instruction the trial court did give, the trial court was not required to provide appellants' requested additional instructions.
This conclusion is further bolstered by the balance of the trial court's jury instructions. Count 2 charged appellants with the crime of merely possessing the precursor chemicals with the intent to manufacture methamphetamine. In comparing this charge with the separate, more serious charge in count 1 that appellants actually "manufactured" methamphetamine, any reasonable juror would necessarily have seen that appellants must at least have initiated the process of manufacture before they could be convicted on count 1. In light of the instructions given and the entire record of trial, there is no reasonable likelihood the jury misunderstood, misconstrued, or misapplied the trial court's instruction on the crime of manufacturing methamphetamine. (Estelle v. McGuire, [ ], 502 U.S. at pp. 70-75; People v. Berryman, [ ] 6 Cal.4th at pp. 1079-1080; People v. Kelly [ ][ 1 Cal.4th at p. 525; People v. Benson, [ ] 52 Cal.3d at p. 801.
Opinion at 21-22 (emphases and brackets in original).
B. Applicable Federal Law
A challenge to a jury instruction solely as an error under State law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Id.; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("'[I]t must be established not merely that the instruction is undesirable, erroneous or even "universally condemned," but that it violated some [constitutional right].'"). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); Prantil v. California, 843 F.2d 314, 317 (9th Cir.), cert. denied, 488 U.S. 861 (1988).; see e.g., Middleton v. McNeil, 124 S.Ct. 1830, 1831-32 (2004) (per curiam) (no reasonable likelihood that jury misled by single contrary instruction on imperfect self-defense defining "imminent peril" where three other instructions correctly stated the law).
In reviewing an ambiguous instruction, the inquiry is not how reasonable jurors could or would have understood the instruction as a whole; rather, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. See Estelle, 502 U.S. at 72 & n.4. Whether a term in a jury instruction requires definition depends on whether the term expresses a concept within the jury's ordinary experience. See United States v. Tirouda, 394 F.3d 683, 689 (9th Cir. 2005) (no error resulting from failure to define "accomplice" in an accomplice instruction).
The State court's rejection of Petitioner's claim of instructional error was not contrary to or an unreasonable application of clearly established United States Supreme Court precedent. As required by controlling federal law, the California Court of Appeal considered the challenged instruction in the context of the jury charge as a whole and the record, and found "no reasonable likelihood the jury misunderstood, misconstrued, or misapplied the trial court's instruction on the crime of manufacturing methamphetamine." Opinion at 22.
This conclusion was not objectively unreasonable in light of the common usage of the words "manufacture" and "manufacturing," which includes an understanding that a process of creation or conversion has begun; and in light of the other instructions before the jury which would have allowed it to find Petitioner guilty of merely possessing the precursor chemicals with the intent to manufacture methamphetamine, or of the lesser included offense of possession of methamphetamine. The evidence of the presence of methamphetamine on the used coffee filters showed that someone had initiated the manufacturing process at some point. If the jury believed Petitioner's defense that the equipment did not even belong to her, it would have acquitted her because she would have lacked the specific intent to manufacture methamphetamine.
By contrast, if the jury believed the equipment did belong to Petitioner but had not been used by her it would have found her guilty only of count two -- possession of the precursor chemicals with the intent to manufacture methamphetamine. Thus, the verdict reflects the jury's understanding that the crime of manufacturing methamphetamine included at least the initiation of the conversion process. Accordingly, this claim for relief is denied.
III. DISCLOSURE OF IDENTITIES OF CONFIDENTIAL INFORMANTS
Petitioner contends that she was denied a fair trial because the trial court refused to disclose the identities of confidential informants to the defense.
Five confidential informants were mentioned in the search warrant. According to the affiant police officer, those individuals contacted police and stated variously that they had heard that Petitioner and Severe were methamphetamine dealers; that Petitioner was constructing a methamphetamine lab and had dug a hole for chemical waste dumping; that they had heard a bulldozer on Petitioner's property; that they had observed increased vehicle traffic to Petitioner's property; that they had noticed a strong chemical smell emanating from the property; that they had seen chemical containers being transported to the property; that they had heard automatic weapon fire coming from the property; that they had seen a person named Jim Morgan on the property; and that Morgan offered them methamphetamine and said it was from "up on the hill." All these observations were made in September of 1992, between "Labor Day" and "late September." ACT 1-21.
On January 31, 1996, Petitioner moved to discover the identity of the confidential informants, based on her theory that if the informants were her neighbors they might be able to provide exonerating evidence in the form of their own bias and reasons to frame her. On March 19, 1996, the trial court conducted an in camera hearing on the motion with the prosecutor, the police officer who signed the affidavit in support of the search warrant, and a court reporter. Following the hearing, the court denied Petitioner's motion.
On appeal, Petitioner argued that the trial court erred in its determination that the potential testimony of the confidential informants was not material. The court of appeal first made note of the following assertion made by Petitioner in her appellate brief:
It is readily apparent from the [search warrant affidavit] that the confidential informants were appellant Sanchez's neighbors. The site of the search was in a remote area of Redwood Valley, up a dirt road away from the highway . . . . No one, other than appellant Sanchez's neighbors, were [sic] in a position to make such observations. [The police officer who served the search warrant] acknowledged that at least some of the tips came from the neighbors.
Opinion at 25 n.6. The court then went on to deny Petitioner's claim as follows:
We have reviewed the approximately 30-page transcript of the in camera hearing. On the basis of this review, together with the entire public record of this case, we conclude there is simply no reasonable possibility any of the confidential informants would have given exonerating evidence on the issue of appellants' guilt. Nothing was presented during the in camera hearing suggesting that any of the confidential informants was present at the scene of the search and arrest; that any of them had very recent observation of any situation which would bear on the guilt or innocence of the appellants; or that the police discovery of the methamphetamine and drug laboratory on appellants' property was made with the immediate and direct participation of any of the confidential informants. To the contrary, the in camera record fully supports the public record, which shows that the informants' reported observations all occurred approximately one month before the police search during which the incriminating evidence was discovered, and that none of the informants witnessed anything that might reasonably have exonerated appellants. Appellants' speculations about the kind of exonerating evidence that might be offered by the anonymous informants are simply that.
In any event, appellants presumably had knowledge of which persons among their neighbors or acquaintances might have had access or sufficient proximity to their property to make direct observations of suspicious activities thereon. Because they already knew who their neighbors were and who might have access to their property, appellants had both the ability to subpoena such persons, and the right to do so without threatening any of the policies underlying the informant privilege. In short, nothing prevented appellants from obtaining their neighbors' testimony and presence at trial. Appellants were therefore already assured of a fair trial without the additional necessity of disclosing the identity of the confidential police informants, which would do nothing to increase the fairness of the trial. To the contrary, such a disclosure would subvert the twin public policies of protecting the flow of information to law enforcement and protecting the public. [Citation omitted.]
In conclusion, there was an insufficient circumstantial nexus between any of the informants and the charged offenses to support a conclusion they could supply any exonerating evidence. Because there were no grounds to conclude nondisclosure of the confidential informants deprived appellants of a fair trial, appellants have not overcome the common-law privilege to refuse disclosure. The trial court did not err is [sic] refusing to order disclosure. [Citations omitted.] Opinion at 27-8.
B. Applicable Federal Law
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 in the case was a "fundamental principle of justice." See id.; see also Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir. 2004) (it is clearly established federal law under the AEDPA that when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation).
"It is not the State which bears the burden of demonstrating that its rule is deeply rooted, but rather respondent who must show that the principle or procedure violated by the rule (and allegedly required by due process) is so rooted in the traditions and conscience of our people as to be ranked as fundamental." Egelhoff, 518 U.S. at 47 (quoting Patterson, 432 U.S. at 202) (internal quotations omitted) (emphasis in original). One of the fundamental rules that may be violated by the erroneous exclusion of critical, corroborative defense evidence is the Sixth Amendment right to present a defense. 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)) (finding the exclusion of critical defense evidence violated due process because it impeded petitioner's Sixth Amendment right to present a defense); accord Chia, 360 F.3d at 1003.
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 on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Id. at 1004; see id. at 1004-06 (State court erred by excluding reliable, material evidence of petitioner's innocence). The court also must give due weight to the State interests underlying the State evidentiary rules on which the exclusion was based. See id. at 1006 (California's interest in excluding reliable statements that were "extraordinarily" relevant to question of petitioner's innocence or guilt was minimal, while importance to petitioner was immense); Miller v. Stagner, 757 F.2d 988, 995 (9th Cir. 1985). The Supreme Court has rejected the notion that the Constitution requires the States to abolish rules of evidence that create a privilege for confidential informants. See McCray v. Illinois, 386 U.S. 300, 312-13 (1967).
Petitioner has not shown that the trial court's refusal to provide her with the confidential informants' identities denied her the fundamental right to present a defense. As noted by the court of appeal, none of the confidential informants was present during the search, the discovery of the drugs was not made with their direct participation, and their information stemmed from observations made one month before the search took place. Further, nothing in the information they gave to police reasonably might have exonerated Petitioner, and Petitioner's theory that she might have been able to obtain exonerating evidence from them is based on speculation alone. Moreover, Petitioner was not prevented from subpoenaing her neighbors, whom she believed must be the informants, in order to test her hypothesis that they were trying to frame her.
Finally, even if Petitioner could have shown that her neighbors were in some way biased against her, that could not account for all of the evidence tending to show Petitioner's guilt. As noted in the State court's opinion, the drug lab was only thirty-five to forty feet away from Petitioner's house, under a bright orange tarp; scales, cutting agents and methamphetamine were found in Petitioner's home; and notes found in Petitioner's handwriting showed the arrangements for purchasing ephedrine tablets and pay-owe records.
Under these circumstances Petitioner was not deprived of her right to present a defense, and her interest in learning the identities of the confidential informants was outweighed by the State's interest in upholding its policy of non-disclosure. See Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983) (no constitutional violation in excluding evidence that another man was seen near scene and that he had history of sexual attacks where identification of petitioner was strong). The State court's denial of Petitioner's claim was not contrary to or an unreasonable application of United States Supreme Court precedent. Accordingly, this claim for relief is denied.*fn7
V. PROSECUTORIAL MISCONDUCT
Petitioner claims that the prosecutor committed misconduct by failing to disclose the following allegedly exculpatory information to the defense:
(1) alleged informants, (2) results of independent drug testing, (3) prosecutions [sic] expert testimony, (4) B.N.E. state testimony, (5) transcriptes [sic] of gran [sic] jury hearing held regarding complaint filed against arresting officer, and the jacent [sic] parcel owners, (neighbors) (6) fire incident, (June 16, 1993) of defendants residence, involving the same arresting officer and B.N.E. agents and jacent [sic] property owners."
Petition, attachment at 7.*fn8
B. Applicable Federal Law
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request 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." Id. at 87. 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. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682 (1985). Whether a reasonable probability exists may not be based on mere speculation without adequate support. See Wood v. Bartholomew, 516 U.S. 1, 6-8 (1995); see, e.g., Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir. 2000) (rejecting as speculative argument that withheld material might have led to some admissible evidence which might have been sufficiently favorable to meet the Bagley standard); Coleman v. Calderon, 150 F.3d 1105, 1117 (9th Cir.) (failure to disclose evidence of other suspects in the crime not material because there was no direct or circumstantial evidence linking the third persons to the perpetration of the crime), judgment rev'd on other grounds, 525 U.S. 141, 147, and cert. denied, 525 U.S. 1058 (1998).
A violation will be found under Brady by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. See United States v. Zuno-Arce, 339 F.3d 886, 890-91 (9th Cir. 2003) (Brady/Bagley claim rejected because, even assuming that evidence was both favorable and undisclosed, petitioner could not show prejudice because there was no reasonable probability that, had it been disclosed, the evidence would have made a difference to the outcome of the trial); Tapia v. Roe, 189 F.3d 1052, 1058 (9th Cir. 1999) (suppressed statement that implicated others as well as petitioner in murders did not meet "reasonable probability" threshold and undermine confidence in verdict). A defendant cannot claim a Brady violation if he was "aware of the essential facts enabling him to take advantage of any exculpatory evidence." United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (citing United States v. Brown, 582 F.2d 197, 200 (2d Cir.), cert. denied, 439 U.S. 915 (1978)); see, e.g., United States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995) (where government discloses all information necessary for defense to discover alleged Brady material on its own, government is not guilty of suppressing evidence).
Petitioner has not shown that the prosecutor failed to provide her with evidence in violation of Brady. With respect to Petitioner's claim of misconduct based on the prosecutor's failure to disclose the identity of the confidential informants, the trial court determined that disclosure was not required and this Court has found that the State court's resolution of this claim was objectively reasonable. For the reasons discussed above, Petitioner cannot show that this evidence was material to her guilt or innocence. Accordingly, this claim for relief is denied.
With respect to Petitioner's five other allegations of prosecutorial misconduct, Respondent argues that the assertions are too vague to establish a constitutional violation and may be denied on that ground alone. Respondent does attempt to discern the nature of the claims and to respond to them, but no facts which would establish prosecutorial misconduct emerge. Petitioner did not file a traverse or otherwise attempt to clarify the claims.
A petitioner must state her claims with sufficient specificity. See Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990); Wacht v. Cardwell, 604 F.2d 1245, 1246-47 (9th Cir. 1979). It is well-settled that "'[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.'" Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). Here, Petitioner's claims are no more than conclusory assertions lacking any factual detail or reference to the record or any other document. Even when viewed in their most likely context, the allegations do not support claims for prosecutorial misconduct. Accordingly, these claims for relief are denied. See id. (affirming district court's denial of Brady claims which did not meet specificity requirements on habeas review).
For the foregoing reasons, the petition for a writ of habeas corpus is denied. The Clerk of the Court shall terminate all pending motions, enter judgment and close the file.
IT IS SO ORDERED.