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Gleffe v. McDonald

August 13, 2009


The opinion of the court was delivered by: Mary M. Schroeder, United States Circuit Judge Sitting by designation


On August 23, 2007, David Lewis Gleffe ("Petitioner"), a California state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 8, 2008, Respondent filed an answer. Petitioner challenges his 2003 convictions for stalking while a restraining order was in effect, witness intimidation, and making criminal threats, and his combined sentence of nine years. He asserts a number of constitutional violations, including insufficient evidence to support his convictions, lack of a unanimous verdict, improper admission of impeachment evidence, several jury instruction errors, and unconstitutional enhancement of his sentence on the basis of facts not submitted to the jury. For the reasons set forth below, the court denies the petition.


The following background facts are adapted from the unpublished decision of the California Court of Appeal.

Petitioner's convictions relate to his actions near the end of his romantic relationship with Julie J., the victim in this case. Petitioner and Julie began dating in March 2002, but by May or June, their relationship began to deteriorate. Between August and September of 2002, several violent confrontations, in combination with Petitioner's erratic behavior, led Julie to obtain two temporary restraining orders against Petitioner. Despite the restraining orders, however, Julie and Petitioner continued to be in contact. They drove together to the October 16, 2002 hearing at which the second temporary restraining order became permanent. After the permanent restraining order was issued, Julie and Petitioner had sexual relations several times. Julie testified at trial that she was concerned for her safety and thought that "things would go more smoothly if she eased out of the relationship.

On the evening of November 24, 2002, Julie returned home after a day out with friends and found Petitioner outside her apartment. She called the police from a friend's home, and the police arrested Petitioner for violating the restraining order. A few days later, Petitioner had his mother place a three-way phone call to Julie, in which Petitioner proposed marriage. When Julie refused his proposal, Petitioner began swearing at her. Petitioner then began a series of harassing telephone messages, which were played for the jury at trial. On December 3 and 4, 2002, Petitioner left approximately fifteen messages on Julie's answering machine. Petitioner threatened to come after Julie if she called the police, stating at one point, "[D]on't call the cops on me again, because if you do it's problems." He also stated that he would discredit and embarrass Julie if she testified against him in court, and would pursue legal action against her:

I hope and I pray that you call me before we go to court, because once I get into that courtroom a lot of shit is going to be revealed about you that's going to embarrass the shit out of you. Because you think you got shit on me? Girl, I got fucking smut on you like a motherfucker, and it's going to all come out. . . . . Furthermore, after I discredit you in court and have you thrown out of court as a fucking witness I will come back, and I will sue you, and I will have you charged with false arrest, intimidating me, as a restraining me, your roommate, as having no right to file a fucking false arrest -- a false arrest report. . . . I will subpoena you both into court, and I will have you both convicted of fucking, misdemeanor crimes that will both get you at least six months to a year.

In several messages, Petitioner also threatened to have his sister contact Julie and her roommate if they made trouble for him:

My sister is going to come introduce herself to [your roommate], because your roommate is not part of my fucking restraining order. My sister is not part of your roommate's restraining order. My sister, you know what my sister is about, and if my sister has got to come down here, Julie, it's going to be fucking hell for your roommate to pay. Because my sister is not going to let this happen to her brother, and I hope you're not going to either. . . . . Have a nice day, and I'll see you in court tomorrow. You open your mouth, and you say something stupid, and you get me put back in jail, then I guarantee my sister will be at your house. That's a fact. Don't play with me. My sister ain't the kind of person that plays, and, uh, she knows everything about you.

Between December 12 and December 18, 2002, Petitioner left fifty additional messages on Julie's answering machine. When Julie left to spend the holidays with her family, Petitioner left ten threatening messages on her family's answering machine.

Petitioner also confronted Julie in person several times in December 2002. On the first occasion, he approached her in a parking lot and demanded that she drop the charges against him. On the second occasion, several days later, Julie saw Petitioner's van parked down the street from her workplace. When she left work, Petitioner followed her in his van, shouting at her and demanding that she drop the charges. When Julie stopped her car at a traffic light, he got out of his van, pounded on the windows of her car, and tried to open the doors. He stopped chasing her only after she drove onto a freeway. On the third occasion, Petitioner and a friend confronted Julie in a parking lot. Petitioner demanded that Julie drop the charges and told her he was undergoing counseling. Julie later called Petitioner to beg him to stop harassing her.

Petitioner was charged on August 7, 2003 with one count of stalking (Cal. Penal Code § 646.9(b)), one count of witness intimidation (Cal. Penal Code § 136.1(c)), and one count of making criminal threats (Cal. Penal Code § 422). The charges related to Petitioner's conduct on November 24, 2002, when he was arrested outside Julie's apartment for violating the restraining order, and to conduct after that date. The jury convicted Petitioner on all three counts. At the sentencing hearing, the court imposed an upper-term sentence of four years for Count 1, and doubled the four-year term to eight years under California's Three Strikes Law, Cal. Penal Code § 667(e)(1), because the offense was Petitioner's second felony strike conviction. The court then imposed a term of one year for Count 2, to be served consecutively. Although the court set a term of two years for Count 3, the court stayed imposition of that sentence, leaving Petitioner with a total prison term of nine years.

On December 7, 2004, Petitioner, represented by counsel, appealed to the California Court of Appeal, raising the same claims he raises in the present federal habeas petition. The Court of Appeal affirmed the trial court's judgment on December 27, 2005. The Supreme Court of California denied review. Petitioner then filed a petition for writ of habeas corpus in the Sacramento County Superior Court on May 18, 2007, raising one claim: that his upper-term and consecutive sentencing was unconstitutional under Cunningham v. California, 549 U.S. 270 (2007). The court denied the petition on July 2, 2007.

Petitioner filed this federal petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on August 23, 2007.


Petitioner asserts the following challenges to his convictions and sentence:

(1) the evidence was insufficient to support his convictions; (2) the jury reached a "compromise verdict" rather than a unanimous verdict; (3) he was improperly impeached with evidence of a prior conviction; (4) the trial court omitted an element, improperly defined another element, and failed to instruct the jury regarding lesser-included offenses of the stalking charge; (7) the trial court erroneously defined a slang term used by Petitioner in a phone message; and (8) Petitioner's upper-term consecutive sentences violated Cunningham, 549 U.S. 270 (2007), and Blakely v. Washington, 542 U.S. 296 (2004).

A. Standard of Review

The petition is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). AEDPA provides the following standards for federal habeas review of state court decisions:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the 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 proceeding. 28 U.S.C. § 2254(d)(1)-(2).

The Supreme Court has stated that a federal court may grant habeas relief under the "contrary to" clause "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Habeas relief may be granted under the "unreasonable application" clause "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. To warrant habeas relief, the state court's application of federal law must be more than erroneous; it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

A federal habeas court's examination is focused on the "last reasoned decision" of the state courts. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). The "last reasoned decision" in this case is the December 27, 2005 decision of the California Court of Appeal, except with respect to the Cunningham claim, for which the "last reasoned decision" is the Superior Court's July 2, 2007 denial of Petitioner's state habeas petition.

B. Sufficiency of the Evidence

Petitioner's first challenge concerns the sufficiency of the evidence underlying his convictions. He challenges the jury's apparent reliance on Julie's testimony, which he characterizes as inherently unreliable, internally inconsistent, and inconsistent with her actions. The California Court of Appeal rejected this claim on direct review, accepting the jury's implicit determination that Julie's testimony was credible and finding that her testimony, in combination with the other evidence presented, was sufficient to support Petitioner's convictions.

In reviewing a sufficiency of the evidence challenge, the court must determine whether, "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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (original emphasis). The key question is not whether the court is convinced of the defendant's guilt beyond a reasonable doubt, but rather, "whether rational jurors could reach the conclusion that these jurors reached." Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991).

1. Count One

Petitioner was charged in Count 1 with stalking while a restraining order was in effect, in violation of Cal. Penal Code § 646.9(b), for his actions between November 24, 2002 (the date of his arrest) and December 25, 2002. A conviction under section 646.9(b) requires the prosecution to prove that, while a restraining order was in effect, the defendant "willfully, maliciously, and repeatedly follow[ed] or willfully and maliciously harasse[d] another person and . . . ma[de] a credible threat with the intent to place that person in reasonable fear for his or her safety." The statute defines harassment as engaging in "a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose." Cal. Penal Code § 646.9(e). At the time relevant here, the statute also stated that harassment must be "such [conduct] as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person." Cal. Penal Code § 646.9(e) (2000).

Petitioner himself admitted during direct examination that the phone messages he left for Julie were intended to place her in reasonable fear for her safety. Julie testified that the telephone calls and in-person confrontations scared and disturbed her, and this reaction was confirmed by other witnesses. Julie stated, "I was scared by the calls. I was very disturbed by them. I don't think I would just call them pitiful and pathetic. I think they are extremely scary and disturbing." Julie's mother testified that when Julie heard the messages Petitioner left on her parents' answering machine while she visiting them over the holidays, Julie was "terrified, frightened, sick to her stomach. It was pretty bad." Moreover, the circumstances of Petitioner's confrontations, including such statements as "[D]on't call the cops on me again, because if you do it's problems," and "[Y]ou get me put back in jail, then I guarantee my sister will be at your house," and such conduct as pounding on the windows of ...

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