The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 29, 2008, petitioner filed his consent to the jurisdiction of the undersigned (docket #4). On November 6, 2008, respondent filed her consent to the jurisdiction of the undersigned (docket #10). Petitioner challenges his 2006 conviction for making a criminal threat in violation of Cal. Penal Code § 422. Petitioner is serving a sentence of eight years imprisonment.
The petition raises two claims: 1) admission of the victim's statements violated the Confrontation Clause; and 2) admission of the victim's statements violated state law.*fn1
After carefully reviewing the record, the petition is 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 D, F. 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 this summary to be accurate and adopts it below:
On the afternoon of January 4, 2006, Jade Sprickman telephoned the 911 operator and asked for help, stating her ex-boyfriend (defendant) had called and said he was on his way to kill her and her current boyfriend, adding, "Please, please, please! ... Hurry, hurry, please!" Gasping, and every intonation freighted with distress, she said that she had just gotten off the phone with defendant, who threatened that he was on his way to her house. "He's coming to kill me right now. He's gonna peel me back." When asked where he might be coming from, she said that defendant just got out of prison and she had no idea, that he was in a program, a halfway house, but that he had left it two days earlier.
Officer Jason Rhoads of the Redding Police Department went to Sprickman's apartment. He testified that when he arrived, she was "emotionally upset, crying, and very nervous." After meeting with her for 40 to 50 minutes he left.
Sprickman soon telephoned 911 again. She reported that "no more than five minutes after the officer left" defendant had come to her door and "banged on [it] twice" about "two seconds ago." She told the dispatcher, "My [three-year-old] daughter is here. I need somebody here right now." She asked for help in getting to her car so she could "go to her mom's." Her voice on the 911 tapes conveys anxiety and urgency in requesting police assistance to deal with the reported threats from defendant.
Officer Rhoads returned and found Sprickman upset, she was crying and very nervous, looking up and down the street. Rhoads stood by as she packed and left in her car with her three-year-old daughter.
Joaquin Telez, Sprickman's boyfriend, was at her residence on the afternoon of the 911 calls. He affirmed that someone, whom he believed was defendant, had come to the door and rapped, harder than a regular knock.
Leanna Montrees, a friend of Sprickman since childhood, testified, under Evidence Code section 1109,*fn2 that, on July 30, 2005, about 2:30 a.m., defendant entered Sprickman's apartment through a window and angrily punched Sprickman in the face. When she and Sprickman left, defendant followed them in a car and threatened to run Sprickman over if she did not get into the car.
Defendant did not testify.
Respondent's Lodged Document D, pp. 2-3.
Neither did the victim testify. Apparently, the victim in this domestic dispute plus situation, as sometimes happens, was showing signs of not wanting to testify. She recanted her previous statements at the preliminary hearing. The prosecutor let it be known that the victim could be prosecuted for filing a false claim if the victim's prior testimony were recounted. The trial judge was informed of this possibility, and the victim's potential need for an attorney. The victim subsequently refused to testify on Fifth Amendment grounds thereby rendering herself unavailable for trial. Petitioner objected to use of the taped calls as "testimonial" hearsay, subject to a right of cross-examination/confrontation pursuant to Crawford v. Washington, 547 U.S. 36, 124 S.Ct. 1354 (2004).
The California Court of Appeal rejected petitioner's Confrontation Clause claim for the following reasons:
Defendant principally argues that the calls should have been excluded under the confrontation clause because the circumstances show Sprickman made her statements to be used to prosecute him.*fn3 We are not persuaded.
In Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed .2d 177, 194] ( Crawford ), the United States Supreme Court held that the confrontation clause of the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Emphasis added.) In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] ( Davis ), the court applied Crawford to the 911 call context. Davis holds that, in that context, "statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." ( People v. Cage (2007) 40 Cal.4th 965, 984.)
Defendant submits that viewed through the Davis framework, the trial court erred in characterizing Sprickman's 911 statements as non-testimonial. He argues that Sprickman's purpose was revenge and retribution rather than to deal with a contemporaneous emergency. He suggests that we are free to make this determination as part of a de novo review of the totality of the circumstances underlying the constitutional question, citing People v. Cervantes (2004) 118 Cal.App.4th 162, 174-175.*fn4
The trustworthiness inquiry defendant urges is taken from confrontation clause cases before Davis, which applied the confrontation clause to non-testimonial hearsay and allowed it if it met the criterion of firmly rooted hearsay exceptions or if it was particularly reliable. (See, e.g., Lilly v. Virginia (1999) 527 U.S. 116, 124-125 [144 L.Ed.2d 117, 127].) Defendant's argument fails to note the disjunction, firmly rooted hearsay exceptions were not subject to any independent trustworthiness analysis. More importantly, Davis overturns this aspect of the prior case law. "It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." ( Davis, supra, 547 U.S. at p. 821 [165 L.Ed.2d at p. 237].)
We reject the unsupported implication that evidence-admissible under the hearsay exceptions allowed by the common law in 1791, as permitted under Crawford-is subject to further case-by-case exclusion for trustworthiness anytime that it might be useful to be able to cross-examine the hearsay declarant.
The question of Sprickman's motivation is one of historical fact. Even when preliminary to a de novo review of a mixed question of fact and law, where facts are historical, amenable to dispute and resolution by trial fact finding, "a reviewing court must, of course, apply a deferential standard of review to the trial court's factual findings." ( People v. Cromer (2001) 24 Cal.4th 889, 900; see also, e.g., People v. Tatum (2003) 108 Cal.App.4th 288, 296.) Thus, the ordinary presumptions concerning the judgment (see 9 Witkin, Cal. Procedure, supra, § 349, pp. 394-396) apply with respect to the question of Sprickman's state of mind.
In any event, were we free to revisit such facts, after hearing the recording of the calls, we would say that she was calling, in Davis's words, because she was "facing an ongoing emergency." ( Davis, supra, 547 U.S. at p. 827 [165 L.Ed.2d at p. 240.) To continue to borrow from Davis: "Although one might call 911 to provide a narrative report of a crime absent any imminent danger, [Sprickman's] call was plainly a call for help against a bona fide physical threat. [T]he nature of what was asked and answered in [this case], again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford ) what had happened in the past.... [¶] We conclude from all this that the circumstances of [Sprickman's] interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency." ( Id. at pp. 827-828 [165 L.Ed.2d at p. 240].) The calls were contemporaneous with the ongoing threats and the questions and responses were about information needed to assess the threats and triage the police response to the reports. Accordingly, the trial court did not err in overruling defendant's Crawford objection.
Respondent's Lodged Document D, pp. 6-9.
A primary interest secured by the Confrontation Clause of the Sixth Amendment is the right of an accused in a criminal prosecution to cross-examine witnesses against him or her. See Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431 (1986); Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105 (1974). In Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354 (2004), the United States Supreme Court held that the Confrontation Clause bars the admission of testimonial hearsay unless the declarant is unavailable and the accused had "a prior opportunity for cross-examination." Statements given to police during interrogations qualify as "testimonial." See id. at 59, 68, 124 S.Ct. 1354. The Crawford holding abrogated, in part, the prior rule that the admission of testimonial hearsay did not violate the Confrontation Clause if the declarant was unavailable and the statement fell under a "firmly rooted hearsay exception" or otherwise bore indicia of reliability. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531 (1980). In Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266 (2006), the Supreme Court observed:
Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
The Davis court addressed statements made by a woman to a 911 operator reporting she had been assaulted. The statements were found by the Supreme Court to be non-testimonial as the objective circumstances indicated that the "primary purpose" of the police interrogation was to meet an ongoing emergency and was thus not subject to the requirements set forth in Crawford. Id. at 821-22, 126 S.Ct. 2266. However, "when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution," those statements would be testimonial and thus their admission would violated a criminal defendant's right under the Confrontation Clause. Id., 126 S.Ct. 2266.
Petitioner argues that Jade's statements to the 911 operator were testimonial because she was not suffering from a real emergency. Petitioner argues that Jade made a false report against him because she was motivated by revenge and retribution. In order to analyze this claim, the court has set forth below the transcripts from the two 911 calls.
After listening to the tape of the 911 calls, the trial ordered certain portions of the tape excised. RT at 99-100. The redacted tape of Jade's 911 calls were played to the jury. RT at 130. A transcript of the redacted tape is contained in the record. The first 911 call went as follows:
CT: 9-1-1 what is your emergency?
J: Um, my my (inaudible) keeps calling my house telling me he's gonna come over and kill me. And he said he's on his way, and--
J: Thirty-five-ninety-six Ricardo Avenue. Um, apartment four.
CT: Okay. What's your last name?
J: Sprickman. S-P-R-I-C-K-M-A-N. He says he's gonna kill my boyfriend.
CT: What's your first name?
CT: How far away does he live?
J: I don't, he don't live anywhere. He just got out of prison. I don't know where he's at.
CT: What's your phone number?
J: Um, two-two-four-eleven-seventy-six.
CT: And what's his last name?
J: Gragg, G-R-A-G-G. I need,
CT: What's his first name?
J: I need the cops here now. Carlis.
CT: Is he white, black, Hispanic, Asian?
CT: Do you know his date of birth?
J: Uh, one-sixteen-seventy-eight.
CT: Okay. So when did he call you?
J: He, I just got off the phone. He just hung up on me. He said he was gonna come. He's coming to kill me right now. He's gonna peel me back. Then all that's here is me and my daughter, my three year old.
CT: Okay. So we don't know where he might be coming from?
J: I don't know where he's at. He was in a program. He was in a half-way house and he left it like two days ago.
CT: Okay. We'll have officers.
J: And he's not in the program no more.
CT: We'll have officers respond out there. Okay?
The transcript from the second excised 911 telephone call played to the jury is as follows:
CT: 9-1-1, what is your emergency?
J: Oh my God. (Inaudible.) I need the police here right now.
J: Three-five-nine-six Ricardo Avenue. I need them here right now. (Inaudible). CT: House or an, house or an apartment?
J: Oh my God. (Inaudible.) It's apartment. Apartment four. (Inaudible.)
CT: What's going on there?
J: There, there's somebody trying to get in my house. (Inaudible.) I know. Tell Officer Rhoads I need somebody here right now. He just left here.
CT: Okay, he just left there?
J: Yes, please, please, please.
CT: Okay. What's your name?
J: Jade. Hurry. Hurry, ...