The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
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 2007 conviction for evading a peace officer with willful disregard for the safety of others in violation of Cal. Vehicle Code § 2800.2(a). Petitioner is serving a sentence of 7 years.
This action is proceeding on the original petition filed January 26, 2009, which raises two claims: 1) the trial court erred by permitting admission of petitioner's prior criminal conduct; and 2) the prosecutor unlawfully intimidated a witness.
After carefully reviewing the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle, 138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997). 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).
The last state court to issue a reasoned decision addressing petitioner's claims was the California Court of Appeal. Respondent's Lodged Documents 6, 8. Accordingly, the court considers whether the denial of these claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (when reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds the summary to be accurate and adopts it below:
"On August 28, 2003, Officers Vu and Perez of the Sacramento Police Department observed a Cadillac sitting in the center of the street on Dixieanne Boulevard. Using the spotlight on their marked patrol car, the officers could see that the front passenger did not have his seatbelt fastened. The officer followed the car as it turned onto Del Paso Boulevard and Darina Street. At that time, Officer Vu turned on the[ ] vehicles' [ sic ] lights and siren and the Cadillac failed to yield. Instead, the Cadillac began on a route which included failing to stop at two separate stop signs while going approximately  miles per hour. As the vehicle was going westbound on Calvados, it almost hit two bicyclists who were riding in a legal manner. After that, the Cadillac turned into an alley and the three passengers of the vehicle got out. At that same time, a white bag was thrown out the driver['s] side window. When recovered, the bag contained a handgun. Officer Perez got out of the patrol car and pursued the right front passenger. When Perez caught the passenger, later identified as Winzer Hayden, Hayden threw a white bag. In the white bag was approximately six and a half grams of rock cocaine. "After the driver of the Cadillac let the passengers out, the vehicle began to evade again by... failing to stop at two stop signs while going approximately  and  miles [per hour] respectively. The Cadillac came to rest at a Popeye's restaurant [on] El Camino Avenue. The driver, defendant, is in a wheelchair and removed himself from the vehicle. While removing himself, the defendant was yelling at bystanders, '[s]ee what they are doing to me!' Under Miranda,*fn1 defendant claimed that he was scared because he didn't know who was behind him and didn't know anything about any gun."
Relying on Evidence Code section 1101, subdivision (b), the People moved to admit evidence of a prior incident during which "[d]efendant evad[ed] a peace officer with a gun and controlled substance in the vehicle." According to the People, "[o]n October 10, 2002, Sergeant Bragagnolo of the San Francisco Police Department, conducted a vehicle stop on a vehicle being driven by defendant. After Bragagnolo contacted defendant and returned momentarily to his patrol car,... defendant took off at a high rate of speed. With his lights and siren on, Bragagnolo began to pursue the defendant. Defendant failed to stop at an intersection and then threw an item out the driver['s] side window. Defendant then failed to stop at another sign, missed an attempted turn, and jumped a curb. The defendant's vehicle finally stopped after he went through a fence and ended up in an embankment. Assisting Officer Lozada located a firearm in a white sock in the area where Sergeant Bragagnolo saw the white item being thrown. Directly below the defendant's car window, Sergeant Bragagnolo located a large quantity of a suspected controlled substance. Defendant was also in possession of more than [$6,000] in cash."
The People argued that evidence of the prior incident was relevant to refute defendant's anticipated defense, based on his statement to Officer Vu, that he did not know he was being pursued by law enforcement. More particularly, the People asserted the evidence was relevant to establish "his knowledge of the presence of law enforcement" and "his flight was not a mistake or accident." They also argued the unique circumstances of the prior and current offenses (similar patterns of reckless driving, failing to stop at stop signs, throwing firearms from a car, and presence of controlled substances) "qualif[ied] as a modus operandi as to... defendant."
Defendant objected to the admission of evidence concerning "anything other than just an actual violation of Vehicle Code [s]section 2800.2," and to the extent the court was inclined to allow in some evidence of the prior incident, argued such evidence should be limited to his driving and should not include "evidence that a gun or drugs were thrown out of the car back then or that [defendant] pled guilty to that." Defense counsel noted that "[a]lthough there was [a] reference in a police report to a bag being thrown out of the car" in this case, defendant had not been charged with any offense related thereto. He further asserted that any probative value of such evidence was outweighed by its prejudicial nature. As he put it, "if this jury hears that there was some prior incident of throwing a gun or drugs out of the car, [the jury is] gonna [ sic ] convict [defendant] based on that...."
The People countered that the drugs and the firearm were relevant to establish a modus operandi and lack of mistake or accident. According to the People, the drugs and the gun were "some of the key marks that... ma[d]e this a modus operandi on these two separate occasions," and defendant's "prior ownership of a firearm" tended to defeat "the representations that had... been made with regard to threats against him...." The People also asserted evidence concerning the prior incident was not more prejudicial than probative because the two incidents were "almost identical."
The trial court ruled evidence concerning the prior incident, including evidence of the drugs and the firearm, was relevant and admissible to show knowledge, intent, lack of mistake or accident, motive, and a common plan or scheme. The court found defendant's "claim that he did not know law enforcement was chasing him clearly goes directly to one of the elements of the charge," namely his intent to evade, and evidence he was previously "engaged in a fairly similar law enforcement pursuit in which contraband was ultimately found and apparently thrown or... discard[ed]... [was] highly probative on the issue of [defendant's] knowledge, intent, [and] lack of mistake or accident in this case...." The court explained that "the observations of the officer [in the prior incident] that drugs and guns were found" provided a motive for defendant to attempt to elude the police. "And... in this case when he disavows knowledge of a gun or any unlawful activities of passengers in his car, it does [bear] on the circumstantial inferences that can be drawn from those facts.... [¶]... [¶]... Otherwise the jury's left with an impression that perhaps he does not know of the unlawful conduct, and perhaps he didn't, but it does bear on that knowledge...." The court concluded the probative value of the evidence was "very high" and not substantially outweighed by any prejudice, noting the prior incident was "strikingly similar" and "no more inflammatory... than the facts that [would] be presented [i]n the current case."*fn2
The evidence adduced at trial was substantially the same as that offered at the hearing on the motion in limine and also included the following: Officer Jacob Casella responded to the Popeye's restaurant to assist the other officers in apprehending defendant. When he arrived, defendant was still inside his car. Casella heard Vu order defendant to get out of the car and defendant respond, "I'm paralyzed." He never heard defendant say, "They had a gun on me. They forced me to drive." He did not know whether defendant said anything before he arrived. Casella canvassed the area and spoke to various individuals. None reported hearing defendant state, "They had guns. They forced me to drive."*fn3
Wuatani Richard, who managed the Popeye's restaurant, was inside the restaurant when defendant and the police pulled into the parking lot and ran outside to see what was happening. When he got there, defendant was still inside his car and said something like he did not have any legs or was a paraplegic. Richard did not recall defendant screaming something like, "They had a gun on me. I had to drive."
Defendant did not testify at trial. The defense called Jamilla Stirgus and Kelton McDonald. On the night in question, Stirgus was walking to her grandmother's house when she saw defendant pull into the Popeye's parking lot while being followed by police. She heard officers order defendant to get out of his car and defendant say he could not walk. She also heard defendant say "there was some guys that had a gun to his head that is why he didn't stop, and... 'Go get them. It's not me.' "
McDonald, who had prior convictions for possession of cocaine for sale and petty theft, was a passenger in the Cadillac on the night in question. He and two other men got into defendant's car and asked defendant to take them to the store. McDonald sat in the back seat directly behind defendant, and "Doughboy" sat in the front seat. Doughboy's name is "Winslow"; McDonald did not know the name of the third passenger. After they got in, the patrol car pulled behind the Cadillac and "hit the light on" them. Doughboy told defendant, "You better not pull over. I'm telling you, you better not pull over."*fn4 Defendant responded, "No man. I have not done anything. Why don't you want me to pull over." Doughboy had something on his lap and then in his hand that he held "to the side of" defendant; McDonald did not "know if it was a pistol or knife or whatever." When defendant turned into the alley, all three passengers jumped out of the car and ran in different directions. McDonald did not see defendant or anyone else throw anything out of the car. He said it was not possible for defendant to do so because "[he] has a hand control.... [and] has to drive with both hands." McDonald ran from police because he "was aware that someone in the car was threatening [defendant], and the only thing [he] was thinking about was some kind of kidnap [he] had nothing to do with."
Defendant also sought to call Winzer Hayden as a witness at trial; however, outside the presence of the jury, Hayden invoked his Fifth Amendment right to remain silent. Additional facts concerning Hayden's invocation are set forth below in section II of the discussion.
Respondent's Lodged Document 6, pp. 2-9.
A. Claim One: Evidence of Prior Incident
Petitioner alleges that the trial court erred in admitting evidence of a prior incident to prove his intent to evade the police. The California Court ...