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Bough v. Kramer

February 24, 2009


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction for second degree robbery (Cal. Penal Code § 211), second degree burglary (Cal. Penal Code § 459), assault with a firearm ( Cal. Penal Code § 245(a)(2)) and misdemeanor destruction of evidence (Cal. Penal Code § 135). Petitioner also challenges the jury's findings that he personally used a firearm in the commission of the robbery (Cal. Penal Code § 12022.53(b)), burglary (Cal. Penal Code § 12022.5(a)(1)) and assault (Cal. Penal Code § 12022.5(a), (d)).

Petitioner was sentenced to 13 years in prison for the robbery, consisting of the middle term of three years plus an additional ten years for the firearm enhancement. Sentences on the other felony counts were stayed pursuant to Cal. Penal Code § 654.

This action is proceeding on the original petition filed July 15, 2008. Petitioner raises the following claims: 1) jury instruction error (claim one); 2) ineffective assistance of trial counsel (claims 2-6); 3) insufficient evidence (claim 7); 4) ineffective assistance of appellate counsel (claims 8-13).

After carefully considering the record, the court orders that the petition is denied.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The AEDPA "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that 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." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

III. Factual Summary

The opinion of the California Court of Appeal contains a factual summary. After carefully considering the record, the court finds the summary to be accurate and adopts it below.

On October 31, 2002, defendant entered Guarantee Bank on Howe Avenue in Sacramento wearing striped overalls and a Mighty Ducks mask. As he approached one of the bank tellers, he removed a gun from his pocket. When he reached the teller's window, he laid the gun sideways on the counter and, with his hand on the gun, asked the teller for money. [Footnote] She gave

[Footnote: The teller did not recall defendant's pointing the gun directly at her. However, when she was shown a photograph taken during the robbery and asked "where the gun is and how it's pointed," she responded, "I would say in that picture it's pointed at me."] him "fifties and hundreds" from her drawer. When she had trouble removing a stack of "twenties" that contained a tracking device, defendant reached across the counter and took it.

Law enforcement officers follows the tracking device's signal to defendant's apartment on Howe Avenue. Police found pieces of fabric that appeared to have been cut from a pair of overalls as well a cut-up Mighty Ducks mask in defendant's apartment, and a loaded and cocked .22-caliber revolver in defendant's car.

Respondent's Lodged Document 4, pp. 2-3.

IV. Discussion

A. Claim One

Petitioner argues that the trial court erred in failing to instruct on the lesser included offense of brandishing a firearm.

The California Court of Appeal denied this claim for the following reasons: Defendant claims "[t]he true finding to the firearm enhancement[s] ... should be reversed because the trial court failed to instruct the jury on brandishing a firearm ... as a lesser included offense of use of a firearm, in violation of [his] right to federal and state due process of law and equal protection guarantees." We disagree.

A lesser uncharged offense is necessarily included in a greater charged offense if either the elements of the greater offense, or the allegations in the accusatory pleading, are such that the lesser offense is necessarily committed if the greater offense is committed. ( People v. Reed (2006) 38 Cal.4th 1224, 1227; People v. Birks (1998) 19 Cal.4th 108, 117.)

As defendant concedes, in People v. Wolcott (1983) 34 Cal.3d 92, 101 (Wolcott), our Supreme Court held "a 'use' enhancement is not part of the accusatory pleading for the purpose of defining lesser included offenses." ( Id. at p. 96.) Defendant claims, however, that "since the decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 [ ( Apprendi ) ], there is no longer any legal basis to distinguish between a substantive offense and a conduct enhancement. Hence, the trial court's sua sponte duty to instruct on lesser included offenses extends to conduct enhancements." He is mistaken.

Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) It said nothing about whether a court may consider enhancement allegations in determining whether an offense is a lesser included offense. "A case is not authority for an issue neither raised nor considered." (People v. Wells (1996) 12 Cal .4th 979, 984, fn. 4.) Accordingly, we remain obligated to follow Wolcott. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant also contends the trial court's failure to consider "conduct enhancements" for the purpose of defining lesser included offenses denied him equal protection of the law. Defendant posits that a person "who is charged solely with a substantive crime is similarly situated to a [person] who is charged with a substantive crime and an enhancement" because "[i]n each case, the state is invoking the criminal process to convict the [person] of a crime and take away his freedom." Thus, he asserts "[a] defendant who is charged with a substantive crime and an enhancement should have the same right to instructions on lesser included offenses." Defendant cites no authority in support of his assertion.

As the Attorney General correctly notes, the two people defendant describes are not similarly situated because the person charged with a substantive offense and an enhancement "is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense." (People v. Wims (1995) 10 Cal.4th 293, 307 ["a sentence enhancement is not equivalent to a substantive offense, because a defendant is not at risk for punishment under an enhancement allegation until convicted of a related substantive offense"].)

In any event, even assuming that brandishing a firearm is a lesser included offense of the firearm enhancements alleged in the information, no additional instructions were required here. A trial court must sua sponte instruct on a lesser included offense "whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present" (People v. Huggins (2006) 38 Cal.4th 175, 215 ( Huggins )), "but not when there is no evidence that the offense was less than that charged" (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman)). As we shall explain, there is no substantial evidence raising a question as to whether defendant personally used a firearm in the commission of the robbery, burglary, and assault.

To find defendant personally used a firearm in the commission of those offenses, the jury was required to find he displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it. (People v. Granado (1996) 49 Cal.App.4th 317, 322, fn. 3 (Granado).) Defendant did not fire the gun or strike the teller with it. This fact forms the basis for defendant's assertion that because he "merely displayed the firearm" and "did not point it at anyone or discharge it," the jury could have reasonably doubted that he " 'intentionally displayed a firearm in a menacing manner' " (CALJIC No. 17.19) but concluded that he exhibited a firearm in a rude manner. His contention lacks merit. "[W]hen a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure." (Granado, supra, 49 Cal.App.4th at p. 325.) Here, there was no reasonable explanation for defendant's conduct other than a desire to facilitate the crimes. He removed the gun from his pocket as he approached the teller, placed it on the counter, and, while continuing to hold on to the gun, asked the teller for money. The most obvious explanation, indeed the only apparent one, was a deliberate display, intended to convey menace, for the purpose of advancing the commission of the offenses. (See People v. Johnson (1995) 38 Cal.App.4th 1315, 1321.) Under these circumstances, no reasonable jury could have concluded defendant merely brandished the firearm, i.e., exhibited it in a "rude, angry or threatening manner" (§ 417, subd. (a)(2)),FN4 but did not personally use it in the commission of the robbery, burglary, and assault. (Huggins, supra, 38 Cal.4th at p. 215; Breverman, supra, 19 Cal.4th at p. 154.) Accordingly, the trial court was not required to instruct on any purported lesser included offenses.

FN4. Section 417, subdivision (a)(2) provides: "Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel" is guilty of brandishing a weapon.

There was no error, constitutional or otherwise, in the trial court's failure to instruct sua sponte on brandishing a firearm as a lesser included offense of ...

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