United States District Court, N.D. California
September 16, 2005.
JEFFREY GALBRAITH, Petitioner,
THOMAS CAREY, in his capacity as Warden of the California Correctional Institution, in Techachapi, Respondent.
The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
In this habeas case, petitioner asserts violations of his
Miranda rights and his right to effective assistance of trial
counsel. For the reasons below, this order DENIES the petition.
Following a jury trial in Alameda Superior Court, petitioner
Jeffrey Galbraith was convicted of second-degree murder and
sentenced to prison for fifteen years to life. The state court of
appeal affirmed. The California Supreme Court denied review.
On November 17, 1997, petitioner, age 15, and Alvin Richardson,
age 16, robbed a furniture store owned by victim Isaias Aparicio.
During the robbery, victim was shot and died. On the afternoon
following the incident, petitioner obtained treatment at Oakland
Children's Hospital for the gunshot wound he sustained during the
robbery-homicide. Sergeant Ersie Joyner of the Oakland Police
Force testified at trial that Officer T. Pope was dispatched to
contact petitioner there pursuant to standard police protocol to
investigate the circumstances surrounding such an injury (Exh.
C-3 at 64-65, 73). Officer Pope took a statement from petitioner at about 1:00 p.m. without first advising him of his
Miranda rights (Exh. C-3 at 65). Petitioner lied and stated
that three individuals robbed and shot him after he departed a
bus in North Oakland earlier that day (Exh. C-3 at 55-56, 68-69).
While at the hospital, Officer Pope learned from Sergeant
Joyner, who was investigating the victim's robbery-homicide, that
petitioner was a suspect in a shooting.*fn1 As per Sergeant
Joyner's instructions, Officer Pope maintained custody of
petitioner and transported him to the police station for
questioning at 4:38 p.m. (Exh. C-3 at 51-53, 65-66).
At the police station, Sergeant Joyner and Sergeant Michael
Yoell conducted a two-part interview with petitioner about the
victim's murder. At the start of the first session, Sergeant
Joyner read petitioner his Miranda rights (Exh. C-3 at 53-55,
66). Petitioner stated that he understood his rights and
consented to speak with Sergeants Joyner and Yoell. He also
signed an agreement to this effect (Exh. B at 455-56; Exh. C-3 at
55, 68). Sergeant Joyner was aware that petitioner was 15 years
old and in ninth grade; he also knew that petitioner was injured
and had taken morphine earlier that day (Exh. B at 497-80; Exh.
C-3 at 67, 70). Accordingly, Sergeant Joyner asked petitioner
whether he was under the influence of medication at the time.
Petitioner replied that he was not (Exh. C-3 at 67). Petitioner
said that he was "thinking real clear" (Exh. B at 479). Though
petitioner also claimed to be in pain, he did not request a
doctor, nurse or medication (Exh. C-3 at 68, 70).
Petitioner initially provided Sergeant Joyner the same
explanation for his injury as he had given Officer Pope (Exh. C-3
at 55-56). Yet, he was unable to answer Sergeant Joyner's
follow-up questions regarding where he claimed he was shot or
which bus line he was allegedly riding. Petitioner subsequently
confessed that the statement was false after Sergeant Joyner
expressed skepticism about the account. Petitioner also admitted
that he was shot in the course of the robbery-homicide (Exh. C-3
at 56-58, 72). The first part of the interview ended at about
6:50 p.m. and was unrecorded (Exh. C-3 at 68). The second part of the interview, which was fully recorded,
began at 7:00 p.m. and continued until 7:35 p.m. (Exh. B. at
454-82; Exh. C-3 at 60-61). At the end of the session, petitioner
confirmed that neither Sergeant Joyner nor Sergeant Yoell
threatened, made promises, physically abused or deprived him of
water or opportunities to use the bathroom during the interview
(Exh. B at 480; Exh. C-3 at 71). The officers then conducted a
joint interrogation of petitioner and co-defendant Richardson
until 10:37 p.m. At the end of the interrogation, petitioner
complained that he was in great pain and needed medication (Exh.
B. at 405).
At trial, petitioner's counsel moved to suppress these
statements, alleging that they were taken in violation of
petitioner's Miranda rights. The trial court denied the motion
after finding that the statements were not coerced because
petitioner understood and waived his Miranda rights (Exh. C-3
at 83-84). In addition, petitioner's counsel did not require the
prosecution to establish a prima facie case before acquiescing to
the presumption that petitioner had to be tried as an adult
rather than a juvenile at any point in the proceedings.
Petitioner brings two claims for habeas relief. He contends
that: (1) his Miranda rights were violated when Officer Pope
elicited an inculpatory statement from him at the hospital
without first advising him of his Miranda rights, and when
Sergeant Joyner elicited involuntary statements from him at the
police station after he waived his Miranda rights; and (2) his
trial counsel rendered prejudicial ineffective assistance in
failing to require the prosecution to establish a prima facie
case before the presumption that he could not be tried as a
juvenile could apply. Neither of these claims is persuasive.
1. Standard of Review.
This petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Under the AEDPA, an
application for writ of habeas corpus on behalf of a person in
custody pursuant to a state court judgment shall not be granted
with respect to any claim adjudicated on the merits in state
court proceedings unless the adjudication of that 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
28 U.S.C. 2254(d). A state court's application of law must be
objectively unreasonable to warrant habeas relief. Lockyer v.
Andrade, 538 U.S. 63
, 75 (2003). A state court finding on a
dispositive factual question presented in a habeas petition may
only be overturned if petitioner presents new evidence for the
first time in federal court which constitutes clear and
convincing proof that the state court finding was objectively
unreasonable. Lambert v. Blodgett, 393 F.3d 943
, 971-72 (9th
The California Supreme Court denied petitioner's habeas claims
without comment after petitioner appealed the intermediate
appellate court's rejection of these identical claims. In
reviewing that decision, this Court views the last reasoned
decision on the issue as the basis for the judgment. See
Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.
2000). This Court therefore evaluates the state court of appeal's
decision to reject the claims petitioner presently asserts.
Even if the state court did commit constitutional error,
however, this Court may not grant relief unless the violation
resulted in actual prejudice to the petitioner's case. See
Belmontes v. Brown, 414 F.3d 1094, 1123 (9th Cir. 2005).
2. Miranda Violation.
Petitioner contends that his Miranda rights were violated
when: (a) Officer Pope elicited an inculpatory statement from him
at the hospital without first advising him of his Miranda
rights, and (b) Sergeant Joyner elicited involuntary statements
from him during the interrogation at the police station after
reading him his Miranda rights.
Respondent asserts that Officer Pope did not take the statement
from petitioner under circumstances amounting to custodial
interrogation. The state also maintains that petitioner's
statements to Sergeant Joyner were voluntary and uncoerced.
Under Miranda v. Arizona, 384 U.S. 436, 444 (1966), a suspect
must receive certain warnings before a statement he makes during
an official custodial interrogation may be admitted as evidence.
Specifically, Miranda requires interrogators to advise a
suspect that he has the right to remain silent, that statements made can be used
against him, that he has the right to counsel and that he has the
right to an appointed counsel.
Custodial conditions that trigger Miranda advisements consist
of a formal arrest or physical restraint of the degree associated
with such an arrest. These conditions are satisfied if a
reasonable person in the suspect's position would feel unable to
terminate the interrogation and leave based on the totality of
the circumstances. Stansbury v. California, 511 U.S. 318, 322,
321-24 (1994). Several factors relevant to this determination are
"the extent to which [the person being questioned] is confronted
with evidence of guilt" and "the degree of pressure applied to
detain the individual." United States v. Booth, 669 F.2d 1231,
1235 (9th Cir. 1981). Interrogation requiring Miranda
advisements involves "questioning . . . including `words or
actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the
suspect.'" Pope v. Zenon, 69 F.3d 1018, 1023 (9th Cir. 1996)
(internal citation omitted).
After being properly advised, a suspect may waive his Miranda
rights provided that it is done voluntarily, knowingly and
intelligently. Miranda, 384 U.S. at 475. In the case of
juveniles, whether a waiver is valid depends on the totality of
the circumstances, including the minor's background, experience,
age, education, intelligence, and capacity to understand the
warnings, the nature of the Fifth Amendment rights and the
consequences of waiving those rights. Fare v. Michael C.,
442 U.S. 707, 725 (1979).
a. Officer Pope's Questioning.
Petitioner alleges that Officer Pope violated his Miranda
rights by eliciting an inculpatory statement from him at the
hospital without first advising him of these rights.
Specifically, petitioner contends that Officer Pope elicited the
false statement that petitioner was robbed and shot after
departing a bus in North Oakland on the day of the
The state court of appeal reasonably determined that Officer
Pope's interaction with petitioner did not require a Miranda
warning. Officer Pope likely did not take petitioner's statement
under circumstances amounting to a custodial interrogation.
Sergeant Joyner testified that on the day of the incident,
Officer Pope contacted petitioner at the hospital pursuant to a routine protocol to investigate the injury, just as in all other
instances in which patients are admitted for gunshot wounds.
Nothing indicates that Officer Pope prevented petitioner from
leaving the hospital or otherwise detained him prior to or during
the statement. Furthermore, no evidence suggests that Officer
Pope interrogated petitioner with the expectation of receiving an
incriminating response. In sum, the state court of appeal
reasonably observed that "[t]he coercive circumstances of
custodial interrogation, which trigger the need for the
prophylaxis of the Miranda warnings, are simply not present
here" (Exh. F at 23-24).
Even if Officer Pope's questioning qualified as a custodial
interrogation, his failure to provide the Miranda advisements
would not have prejudiced petitioner's case. Petitioner made the
same statement at issue to Sergeants Joyner and Yoell after
expressly waiving his Miranda rights at the police station
later that day. Petitioner also voluntarily told Sergeant Joyner
that the statement was false after Sergeant Joyner confronted him
about the problems the statement contained. As such, the
prosecution would have been able to introduce the same evidence
at trial regardless. Moreover, the statement petitioner provided
Officer Pope was not even inculpatory. Therefore, even if Officer
Pope's actions constituted error, it was harmless.
b. Sergeant Joyner's Questioning.
Petitioner further alleges that Sergeant Joyner elicited
involuntary statements from him during the interrogation at the
police station, thereby violating his Miranda rights.
The state court of appeal reasonably concluded that Sergeant
Joyner did not elicit involuntary statements from petitioner
because petitioner legitimately waived his Miranda rights
before the interrogation. Though petitioner was
fifteen-and-a-half years old at the time, in pain from his recent
gunshot wound, and had taken medication at the hospital earlier
that day, his statements were voluntary and informed. After the
Miranda warnings, petitioner stated that he understood his
rights, consented to speak with Sergeants Joyner and Yoell, and
signed an agreement to this effect. As a ninth grader, petitioner
certainly would have comprehended these warnings and his decision
to waive his rights. Petitioner also told the sergeants that he
was "thinking real clear" and that the medication he had taken
several hours earlier had worn off when the interview began.
Moreover, petitioner's statements to the sergeants were not
involuntary or coerced. Neither Sergeant Joyner nor Sergeant
Yoell threatened petitioner, promised him anything, physically abused him, prevented him from
using the bathroom or getting a drink of water during the
interview. Petitioner did not request medication until the
interrogation ended. In short, Sergeant Joyner did not elicit
statements from petitioner in violation of his Miranda rights
because petitioner voluntarily told the sergeants about his
participation in the robbery-homicide after waiving his rights.
3. Ineffective Assistance of Trial Counsel.
Petitioner also seeks habeas relief based on his trial
counsel's alleged ineffectiveness at the juvenile court
proceedings in failing to require the prosecution to establish a
prima facie case before the presumption that petitioner could not
be tried as a juvenile could apply.
The Sixth Amendment entitles criminal defendants to the
effective assistance of trial counsel. To establish that counsel
provided ineffective assistance, defendants must show that: (1)
counsel's performance was deficient under the standards of
reasonable lawyering, and (2) there is reasonable probability
that, but for counsel's ineffectiveness, the result of the
proceeding would have been different. A "reasonable probability"
is a probability sufficient to undermine confidence in the
outcome. Strickland v. Washington, 466 U.S. 664, 694 (1984).
Review of a counsel's actions or omissions is highly deferential:
a counsel's actions are deemed effective unless a reasonable
lawyer would not act in the challenged manner when faced with the
same circumstances as presented in the instant case. Coleman v.
Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998).
Petitioner asserts that his trial counsel provided ineffective
assistance in light of the following laws and facts associated
with the juvenile court proceedings. In California, the juvenile
court system ordinarily has jurisdiction over any individual
under 18 years of age who violates a criminal law. Cal. Welfare &
Institutions Code § 602(a). The criminal court system has
jurisdiction if an accused minor is deemed unfit for treatment
under juvenile court law or is accused of certain serious crimes.
Marcus W. v. Superior Court, 98 Cal. App. 4th 36, 40 (2002).
When petitioner was charged in November 1997, then Welfare and
Institutions Code § 707(e) applied to cases in which a minor
between ages 14 and 16 was accused of committing murder "while
not the actual killer, . . . acts with reckless indifference to
human life and as a major participant in a felony enumerated in paragraph (17) of
subdivision (a) of [Penal Code] section 190.2. . . ." Paragraph
(17) references the felony of murder "committed while the
defendant was engaged in, or was an accomplice in, the commission
of, attempted commission of, or the immediate flight after
committing . . . [r]obbery in violation of Section 211 or
212.5."*fn2 A minor who participated in such a crime was
presumed unfit for treatment in juvenile court unless he could
prove that juvenile court treatment was nonetheless
The prosecution requested a fitness hearing in juvenile court
under Welfare and Institutions Code § 707. This obligated the
juvenile court to require the probation officer to investigate
and submit a report on petitioner's behavioral patterns and
social history. Cal. Welfare & Institutions Code § 707. When
these hearings were held on October 21, 1998, and January 12-13,
1999, petitioner knew that he had the burden of rebutting the
presumption of unfitness by a preponderance of the evidence (Exh.
C-2 at 52-54).
Petitioner's trial counsel, however, could have relieved
petitioner of this burden. Because the prosecution had charged
petitioner with a crime triggering the presumption of unfitness,
petitioner could have first required the prosecutor to establish
a prima facie case before the presumption could apply. Marcus
W., 98 Cal. App. 4th at 41. A "prima facie" case amounts to
"sufficient cause" within the meaning of Penal Code Sections 871
and 872, which is generally equivalent to "reasonable and
probable cause," or the state of facts that would lead an
ordinary person "to believe and conscientiously entertain a
strong suspicion of the guilt of the accused." Edsel P. v.
Superior Court, 165 Cal. App. 3d 763, 780 n. 10 (1985).
Accordingly, petitioner alleges that his trial counsel rendered
ineffective assistance in failing to require the prosecution to
establish a prima facie case. He asserts that this failure was
prejudicial because the prosecution would not have been able to
make out a prima facie case if his counsel had correspondingly sought to suppress the
inculpatory statements on voluntariness grounds in juvenile
court. In his opening brief for the state court of appeal,
petitioner maintained that the prosecution's burden in
"establishing a prima facie case without reliance on the
inherently untrustworthy evidence of the coerced confession"
would have been "extremely difficult" (Exh. D at 8-9). Thus,
petitioner posits that the juvenile court would have granted a
motion to suppress the inculpatory statements as involuntary if
counsel had made such a motion, which would have greatly
jeopardized the prosecutor's ability to establish such a case.
The state court of appeal reasonably concluded that trial
counsel's error did not prejudice petitioner's case. As discussed
above, petitioner's inculpatory statements to Sergeants Joyner
and Yoell were not taken in violation of his Miranda rights.
Thus, had trial counsel required the prosecutor to establish a
prima facie case, these statements would have been introduced,
and a motion raised by trial counsel to suppress them would have
been denied. The prosecutor would have then proceeded to use
these statements to establish such a case.
The prosecutor would have succeeded. The following statements
establish that petitioner was a major participant in the robbery
and acted with reckless disregard for human life in the course of
the crime. Petitioner and Richardson agreed to rob the store
together prior to the event (Exh. C-3 at 13, 56-58). Petitioner
stated he "wanted the money . . . needed the money" to buy his
mother a VCR and groceries (Exh. B at 122; Exh. C-3 457, 463).
Petitioner was aware that Richardson had a gun when he "got to
the store" (Exh. B at 461). After arriving, petitioner served as
a lookout at the front of the store while Richardson pushed the
owner to the rear (Exh. C-3 at 58-59, 63). Petitioner then went
to the back of the store to assist Richardson (Exh. C-3 at
59-60). During that time, Richardson fought with Aparicio until
gunshots were fired and Aparicio was killed (Exh. C-3 at 59, 63).
As such, the prosecutor likely could have established a prima
facie case that petitioner violated Cal. Penal Code §
190.2(a)(17), as stated above. Therefore, even if the trial
counsel had rendered ineffective assistance in failing to require
the prosecution to establish a prima facie case, the error likely
did not lead the court to rule less favorably with respect to
The writ is DENIED. Judgment will be entered in favor of
IT IS SO ORDERED.
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