FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 6, 2003, petitioner was convicted in Sacramento County Superior Court on the following: three counts of attempted murder (Cal. Penal Code §§ 664/187(a) (counts I-III)); three counts of assault with a firearm (Cal. Penal Code § 245(a)(2) (counts IV-VI)); and sustained firearm allegations (Cal. Penal Code § 12022.53(c) (counts I-III) and § 12022.5(a) (counts IV-VI)). (Resp't's Lodgment (hereinafter LD) 1 at 702-07.) With the addition of sentence enhancements for the use of a firearm (Cal. Penal Code §§ 12022.53 & 12022.5), petitioner was sentenced to twenty-seven years. (LD1 at 784.)
In the petition now pending before this court, petitioner seeks habeas relief on the grounds that (a) the prosecutor's peremptory strikes of African-Americans from the jury panel were based on race in violation of Batson v. Kentucky, 476 U.S. 79 (1986); (b) the prosecutor's peremptory strikes of the African-Americans from the jury panel violated those jurors' equal protection rights, as protected by the Fourteenth Amendment; and (c) the trial court's failure to give a jury instruction on the defense of unconsciousness violated petitioner's due process rights and right to a fair trial. (Pet. at 1, 24 and 29.*fn1 ) Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
On April 28, 2006, the California Court of Appeal for the Third Appellate District issued a reasoned opinion affirming petitioner's conviction and sentence. (LD8.)
On June 1, 2006, petitioner filed a petition for review to the California Supreme Court which was denied on August 16, 2006. (LD9-10.)
On December 18, 2007, petitioner, proceeding pro se, filed a petition in the instant action. On June 17, 2008, respondent filed an answer. Petitioner did not file a traverse.
The following facts are obtained from the decision of the California Court of Appeal, Third Appellate District, in which petitioner's conviction was upheld:
There is no dispute that on March 18, 2002, [petitioner's friend] McPherson drove Scott's Cadillac to downtown Sacramento, near the Hard Rock Café; Scott got out and then fired several shots from a revolver, causing a group of men to scatter for cover; one bullet scratched victim Benyelle Jones's arm. The trial centered on the knowledge and intentions of the defendants.
K Street is a pedestrian shopping street to the east of Seventh Street; west of Seventh Street it becomes a two-story mall. At K, Seventh is a one-way street, heading south. One facing the mall sees the Hard Rock Café on the right and a state building on the left. Further down Seventh to the left (south) one finds a bus stop and then an alley with a parking lot between the state building and the Marshall Hotel, situated on the corner of Seventh and L Streets.
Several witnesses testified that at about 8 p.m. a Cadillac pulled up by the mall entrance and backed up several feet, remaining in a lane of traffic; Scott got out and fired shots towards a group of about six men. Jones testified Scott said "Don't I know you all" before firing. Jones also testified Scott fired the first shot up into the air. Witnesses counted five to six shots fired. Contrary to Jones's testimony, a teenage boy testified Scott's hand was parallel to the ground when he began firing directly into the group of men, one shot after another. The boy's father testified Scott fired parallel, "pointed at the crowd of people" about 10 to 12 feet in front of Scott. Scott moved his arm from left to right as he fired. Two other bystanders testified Scott began firing level. Fresh marks on a pillar and two planters corroborated testimony that Scott fired at least some shots parallel to the ground. Jones and another witness saw defendants in the alley or leaving the mall before the shootings.
Two of the witnesses followed the Cadillac to West Sacramento and flagged down a peace officer; shortly thereafter Scott was seen leaving a convenience store with some beer, first nearing but then walking away from his car, as a patrol car approached; McPherson was in the car with the engine running, but he then parked and left on foot.
When arrested, Scott lied to Officer Shim, stating that he had not been at the mall or fired a gun and did not have a gun in the car; when Shim showed Scott a revolver another officer found in the car, Scott said "You found it, huh?"
After he spoke with Officer Shim, Scott was in the back of the patrol car for about five minutes, then told Officer Navarrette that he wanted to explain his story. In his own testimony Scott said he had had time to calm down and wanted to tell Navarrette the truth, but, as will be seen, his story to Navarrette differed from his trial testimony. Scott told Navarrette that he was talking to some "girls" by the bus stop when he was approached by six or seven "dudes," including one he recognized "because he beat him up the week prior." The man wore a red bandanna and said, "What's up blood? . . . I'm going to kick your butt" and he "was going to get an A.K. and his homies at the time." Scott told the officer he fired his gun into the air in self-defense, but could not remember how many shots he fired because he was so frightened, but it may have been three or four. Scott "said he wasn't trying to shoot at the crowd because he wasn't crazy like that." Scott said, "The gun is gone," but Navarrette found it under the dashboard, closer to the driver's side of the car. Scott said, "Officer Nakata knows the guy[s] I shot at[,]" and he named "Jamari and Rasheem."
At trial Scott testified that about two years before trial he had moved to Sacramento after he had been shot in the head in Texas and spent a couple of months in a hospital. He described an incident at the Welcome Grove Motel in West Sacramento which took place on March 2, 2002. His version was that he had been visiting Cory Gail (McPherson's brother, sometimes spelled "Corey") and Lajina Champion, who lived at the Welcome Grove. He quarreled with "Marcus" (later referred to at trial as "Arthur Harris") over a woman named "Toya" and punched Marcus, knocking him down. Jones and an unnamed third man were present when Scott struck Marcus. Later, Marcus threatened Scott and - in Jones's presence - Marcus and the third man shot at Scott, hitting the Cadillac a few times. Because of this incident, Scott bought a gun and ammunition.
Scott testified that on the night of the instant offenses he and McPherson (whom he called "Bishop") spent a couple of hours with some "girls" at a Motel 6, then went to the Welcome Grove to visit his friend Tasha; McPherson drove Scott's car that day. A friend known only as "Chuckie" said he wanted to buy marijuana; after the three men spent about 30 to 45 minutes with Tasha, Scott, McPherson and Chuckie went to Seventh and K, where Scott and McPherson often bought marijuana from "Little Blunt" by the bus stop in front of the state building. McPherson drove, with Scott as the front passenger and Chuckie in the back.
Scott testified McPherson stopped the car, past the mall entrance and without backing it up when Scott told him "let me holler at these girls real quick." He also testified that the two witnesses who had testified they had seen him or the car near the mall earlier that evening were mistaken. Scott got out and spoke to some women for about a minute when a group of men approached. Scott recognized Marcus (who wore a red bandanna), Jones and the third man from the Welcome Grove incident, and Marcus said, "What's up, Blood . . . we're going to get you now." Scott also recognized Jamari and Rasheem. When Scott saw Marcus pull down his bandanna Scott thought to himself, "Dang, that's the dude that's shot at me and that I punched[;]" "I was stuck right then, I was nervous . . . I was just like, Dang." The girls walked away but Scott did not because he was "kind of shell-shocked" and he "froze." When he saw Marcus reach near his waistband, Scott displayed his gun, which caused two men to run off, though the others were "steadily approaching me."
Scott testified he fired once into the air and then "was kind of freaked out" "in a state of shock," and did not remember how many other shots he fired. He remembered seeing Marcus run away to the west and remembered Jamari, Rasheem and Jones leaving, but he was not focused on them. His only intent had been to scare the men, to protect himself.
After Scott "stopped hearing gunshots" he ran back into his Cadillac and told McPherson "Let's go." They drove to West Sacramento, dropped Chuckie off at the Welcome Grove, then went to the convenience store "to get something to drink." He testified he had lied to Officer Shim because he was still scared.
On cross-examination Scott conceded the gunshot to his head had not caused brain damage or affected his thinking. He often bought marijuana by the bus stop from Little Blunt and never had trouble, though he had said he did not carry his gun except when he thought there might be trouble. Although it was Chuckie who wanted to buy marijuana, only Scott got out of the Cadillac. He denied saying anything like, "Don't I know you all" to the group. His only two friends in Sacramento were McPherson and Cory, whom he sometimes called "Little Bro" and "Big Bro," respectively. He claimed he never told McPherson about the gun, even though McPherson and his brother Cory were his only friends and he had McPherson drive his car often. He testified he had not mentioned Marcus to Officer Navarrette because all of the men in the group were in his mind when he gave his statement, but he conceded he had never had prior trouble with Jamari or Rasheem, the two men he did name. (RT 985-986)
He did not mention the Welcome Grove shooting because Navarrette never asked him why he was scared; nor did he mention Marcus putting his hand toward his waist. (RT 986-991) Scott admitted he lied to West Sacramento officers about the Welcome Grove shooting, in that he only mentioned Marcus and the third man, not Jones, and he had told them Cory and Marcus had quarreled the day before, rather than telling them he and Marcus had quarreled the day of the shooting.
When asked by the prosecutor if he had "black[ed] out," Scott said he was "freaked out" and thought, "I'm going to die or I'm going to get to the car or I'm going to get away from here, you know." When asked if he had fired parallel to the ground Scott testified he did not remember anything after the first shot until "after I hear the shots stop" and he saw that the group had run away. On redirect Scott testified that "as I was shooting . . . it was kind [of] a blank out, something like that;" "it was a reaction to me knowing . . . I got to get away from here, you know." "[M]y mind state wasn't even stable enough . . . to focus on shooting any particular person . . . ."
McPherson testified he did not circle the block or go by the alley behind the Marshall Hotel before stopping at the curb to allow Scott to get out of the Cadillac. He claimed he was on his mobile telephone with a girlfriend, heard shooting, then pulled away when Scott got back into the car. He admitted leaving the engine running and admitted he might have backed the car up but he did not remember doing so. He had never seen Scott with a gun and had nothing to do with the shooting. On cross-examination he testified it was his brother Cory's mobile telephone and he could not remember the number, and he did not know his former girlfriend's last name. As pointed out by the prosecutor during argument, McPherson did not offer the girlfriend's or Chuckie's testimony to corroborate his account. McPherson denied being at the Welcome Grove shooting.
In rebuttal the prosecutor introduced evidence that the prior shooting at the Welcome Grove was started by persons associated with defendants, possibly Gabriel Cranshaw ("P-Low") and McPherson, and that Marcus returned fire in self-defense. Although McPherson testified he had last smoked marijuana about a year before the instant offenses, a blood sample drawn several hours after the mall shootings indicated McPherson had used marijuana that day. The prosecutor also introduced evidence from gunshot residue testing, which indicated that Scott had recently fired a gun which showed McPherson had some lead particles on his hands, which would be consistent with handling a gun or possibly touching Scott's hands after Scott fired a gun.
The parties stipulated that Jones previously testified that when Scott got out of the car by the mall, Jones heard someone close by say, "That's the guy that broke my jaw."
The operative information charged seven premeditated attempted murders, with firearm allegations. The jury rejected all allegations of premeditation, convicted only of the lesser offense of assault with a firearm in counts IV-VI, and acquitted defendants completely on count VII. (LD8 at 2-9 (emphasis in original).)
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ 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. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 76 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).
Petitioner alleges that his conviction should be vacated because the prosecutor exercised peremptory challenges to strike five African American jurors on the basis of a presumed group bias, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
During voir dire, prospective jurors were asked questions by the trial court, defense counsel and/or the prosecutor related to responses provided on a juror questionnaire. At issue in this petition are responses to two questions from that questionnaire, Questions 40 and 41, which read:
40. In general, do you feel that African Americans are treated fairly or unfairly by law enforcement in Sacramento?
41. Do you feel that African American males:
A. Are unjustly accused of committing more crimes than other persons? YES ___ NO ___
B. Are more likely to commit crimes than other persons? YES ___ NO ___
C. Are treated as fairly by law enforcement as other persons? YES ___ NO ___
D. Are treated fairly by the judicial system as other persons? YES ___ NO ___ (LD3 at 2065.)
During initial questioning by the trial court, Mr. Cusic stated he was arrested by West Sacramento police officers in 1998 for domestic violence, though no charges were filed against him. (LD4 at 1054-55.) He felt that the police were overzealous in their response to the domestic violence dispute, but assured the court that the incident would not impair his ability to be a fair and impartial juror in the case. (Id. at 1055.) Upon questioning by the prosecutor regarding his answer to Question 40 of the juror questionnaire, Mr. Cusic stated "I think that sometimes they, the Police Department, if they just see an African-American, they automatically assume the worst. That's how I feel about that." (Id. at 1058.) Mr. Cusic then relayed a story in which he felt he was pulled over by a West Sacramento police officer because of his race. (Id. at 1059.) When asked by the prosecutor whether he could put aside those incidents while sitting as a juror in the present trial, Mr. Cusic responded "I don't think so. I cannot promise you anything like that." (Id.) When asked for an explanation, Mr. Cusic stated "Because of the experience I had with the police." (Id.) Even so, Mr. Cusic again assured the court that he would put aside his experiences in order to be fair. (Id. at 1060.) During peremptory challenges, the prosecutor excused Mr. Cusic. (Id. at 1086.)
In response to the trial court's query as to whether any juror has had "a particularly good or particularly bad experience with a law enforcement official," Ms. Harris stated that her brother, who is a rapper, has been repeatedly stopped by Oakland police officers while "just driving down the street [doing] nothing." (LD 4 at 1101-02.) Ms. Harris, however, stated that she did not think that all officers were unprofessional and that she would judge any testifying officers by the same standards as for any other witnesses. (Id. at 1102.)
During an examination outside the presence of the other prospective jurors, the trial court asked Ms. Harris a question regarding her response to Question 40 of the juror questionnaire:
The Court: . . . [Y]ou checked unfairly. And then you said some African-American males or females might have had a past or trying to change sometimes . . . it does not work in Sacramento or any other county for that matter.
What did you mean by that? [Ms. Harris]: Um, for instance, I have a 5.0. I don't really drive it that much, but on certain occasions, like, well, in the summer time, I've drove [sic] it maybe ten times, I would go pick my cousins up in West Sacramento and I know I don't drive fast but that's a fast car and it would seem like every time I would go entering into West Sacramento, a police would get behind me and just pull me over for nothing, make we go through the whole registration, license, insurance thing and then say that I might have didn't use my blinker or my taillight might have been out when I know that they was working and then they ask me to remove myself from the car and I go back and look at it and the lights are working there's nothing wrong with it. Nothing's broke. Nothing's wrong.
The Court: So you feel there was no basis at all for them to have stopped you?
[Ms. Harris]: Exactly. (LD4 at 1116-17.) Notwithstanding this testimony, Ms. Harris again assured the court that she would apply the same standards to the testimony of law enforcement officials as any other witnesses. (LD4 at 1118.)
Ms. Harris was then questioned the prosecutor. (See LD4 at 1119-20.) [Prosecutor]: . . . [Y]ou're talking about something that doesn't work. You say it just does not work in Sacramento or any other county for that matter. What are you referring that doesn't work?
[Ms. Harris]: From the other county, well, my brother's a rapper, he's a known rapper. And I just feel that because he's African-American, he's stereotyped by, by the, I mean, his car is probably known so the police that are in Oakland, California, they know that car and it don't matter whoever driving it they pull it over. It could be my father and he's 76 and they'll still pull the car over.
[Prosecutor]: Is it, does your feeling about that issue extend to the way the criminal justice system treats African-Americans, you know, such as courts and . . .
[Ms. Harris]: Sometimes I feel that it is unfair. But I can put that aside to do what I know that's right.
[Prosecutor]: Okay, I mean, because you can imagine what my concern would be?
[Ms. Harris]: Be biased. [Prosecutor]: Counter balance that by going into the jury room and sort of taking that personal belief and making sure --
[Ms. Harris]: No, I wouldn't do that. [Prosecutor]: Okay, you think you could be fair and impartial in this case?
[Ms. Harris]: Yes. (LD4 at 1119-20.) During peremptory challenges, the prosecutor excused Ms. Harris. (Id. at 1164.)
During voir dire by defense counsel, Ms. Terrell expressed her opinion that, based on events that she personally saw, she thought African-Americans were treated unfairly at times by law enforcement. (LD4 at 917-18.) Upon further questioning by the prosecutor on this issue, Ms. Terrell explained that while attending a county fair, she observed young African-American males approached by police officers in a manner that Ms. Terrell thought was more aggressive than necessary. (Id. at 929.) The prosecutor asked whether she could hear the present case without wanting to "cut [the defendants] a break" based on her past observations (Id. at 930.) Ms. Terrell stated, "Well, at this point, no, I don't plan to. [¶] I plan to give it a, you know, listen, but sometimes things can be said that kind of reflect back, but I don't plan to have that type of approach." (Id.)
[Prosecutor]: What do you mean by that, things can be said? [Ms. Terrell]: I mean, someone can testify and say, you know, that they were approached a certain way and automatically, you know --
[Prosecutor]: Okay. [Ms. Terrell]: -- that could come to mind. (LD4 at 930.)
Ms. Terrell was also questioned by the prosecutor about her prior experience as a juror. (See LD4 at 931-33.) Because of that experience, Ms. Terrell stated that she learned "[t]o really think harder." (LD4 at 931.) When asked what she meant, Ms. Terrell said she thinks she could have given some more thought to certain testimony:
[Prosecutor]: Was that an issue that came up in your prior jury service or . . .
[Ms. Terrell]: Um . . . it was a [sic] issue that, yes, in my mind that someone had made a statement and I kind of really didn't give it thought either way and I thought maybe if I thought hard about it maybe I would have questioned it more.
[Prosecutor]: So, in other words, while you were in deliberations, there was a piece of evidence, a testimony of a witness and you sort of accepted that at face value. I assume you were with other jurors in accepting it. And then as you thought about it later, you sort of thought, you know, I'm not sure whether I should have just accepted it the way I did?
[Ms. Terrell]: Right. But it was mainly one of the jurors who had said something. And it was because at the end, it was kind of personally about themselves that they made a statement.
[Prosecutor]: Something that happened -- let me ask you this: This happened in the deliberations process?
[Ms. Terrell]: Right. (Id. at 931-32.) Ms. Terrell, however, said that she thought the jury system worked and that she wouldn't allow whatever occurred during those previous deliberations to affect the present case. (Id. at 933.) During peremptory challenges, the prosecutor excused Ms. Terrell. (Id. at 1304.)
During questioning by the trial court, Mr. Gorham recounted a story in which he had been subject to racial profiling while living in Merced by a police officer. (LD4 at 1099-1100.) Despite that experience, Mr. Gorham stated that he felt the incident was specific to the officer who profiled him. (Id. at 1100-01.) He also said that he had a nephew who was stabbed to death in New Orleans, but did not think that the incident would affect his ability to hear the present case. (Id. at 1109.)
Upon further questioning by the trial court in regard to Mr. Gorham's answer to Question 41 on the juror questionnaire, the following exchange occurred:
[Mr. Gorham]: I think pretty much that black persons are targeted for some reason or other.
The Court: And, Mr. Gorham, let me ask you the next question. Obviously, in this instance, the two defendants are African-American males. Can you put aside whatever personal beliefs you may have and decide this case by the evidence that will be presented here and the law as I will instruct you?
[Mr. Gorham]: I didn't answer the question like that to make a statement with that. Yes, I could.
The Court: So you can block out whatever personal opinion you may have and decide this case on what will be presented here in this courtroom?
[Mr. Gorham]: Absolutely. (LD4 at 1114.)
Defense counsel followed up on the line of questioning introduced by the court: [Defense counsel]: Is your feeling on this issue based on the fact that you were profiled on that one occasion as an African-American or is that from other experiences?
[Mr. Gorham]: Well, I'm black and I see what goes on in the neighborhoods and I read the newspapers, you know, you go to jail, and who's there? It's all black people. And I'm afraid that everybody is just considering them as being, you know, the scapegoat for a lot of things. It's a personal opinion, okay, I think that quite possibly on the lower economic side of it that, yes, there may be more crimes that are done by black people, but I do think that they are scrutinized a little bit more than, say, an average white person. (LD4 at 1114-15.)
The prosecutor also questioned Mr. Gorham on the same issue: [Prosecutor]: Mr. Gorham, I totally appreciate your opinion on this. And the reason we ask about it is my concern is and I think all of us, all of our concerns is that we are on a level playing field to begin this trial. Obviously, there's going to be facts and evidence. And the reason the question's asked and the question I had for you is do you think that the fact that you have that opinion could in some way affect your ability to be fair and impartial in this case in the sense that you're thinking, you ...