The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2003 conviction for assault with a firearm (Cal. Penal Code § 245(a)(2)), making a criminal threat (Cal. Penal Code § 422), possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)), corporal injury to a spouse resulting in a traumatic condition (Cal. Penal Code § 275.5(a)), battery (Cal. Penal Code § 242) and assault (Cal. Penal Code § 240). Petitioner was also found to have personally used a firearm in the commission of the crimes of assault with a firearm and making a criminal threat (Cal. Penal Code §§ 1203.066(a)(1), 12022.5(a)(1)). Petitioner is serving a sentence of 15 years to life.
This action is proceeding on the petition originally filed in the United States District Court for the Northern District of California on June 27, 2005. (Dkt. No. 1.) Petitioner raises the following claims: 1) violation of Blakely v. Washington, 542 U.S. 296 (2004); 2) the trial court violated petitioner's right to due process by granting the prosecution's motion to consolidate the charges; 3) the prosecutor improperly commented on petitioner's exercise of his right to remain silent; 4) ineffective assistance of counsel; and 5) violation of Batson v. Kentucky, 476 U.S. 79 (1986).
After carefully considering the record, the undersigned recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard in a habeas corpus action brought pursuant to 28 U.S.C. § 2254. 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 405. "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. Id. at 407-08. It is this prong of the AEDPA standard of review which directs deference 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." Id. at 410-11 (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 (2002).
"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).
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 (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 (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.
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).
When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).
III. Factual and Procedural Background
The opinion of the California Court of Appeal contains a summary of the factual and procedural background. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it herein.
In May 2002, defendant held a gun to the head of his estranged wife, Mischell Hamilton, and told her "you'll never see your kids again."
In September 2002, defendant struck his girlfriend (and the mother of his child), Lashaunda Henderson, in the face with what she believed to be a firearm.
The district attorney filed two complaints against defendant, one arising from the assault on Hamilton (case No. 02F08053) and the other arising from the assault on Henderson (case No. 02F07947). Ultimately, the trial court granted the prosecutor's motion to consolidate the two cases. The jury found defendant guilty of assaulting Hamilton with a firearm, making a criminal threat against her, and being a felon in possession of a firearm. The jury also found two gun use enhancement allegations true. With respect to Henderson, the jury found defendant guilty of inflicting corporal injury on her and assaulting and battering her; however, the jury acquitted him of battery with serious bodily injury and assault with a deadly weapon. Defendant received an aggregate prison term of 15 years, which consisted of the upper term of four years on count one (assault with a firearm on Hamilton), the upper term of 10 years on the gun enhancement on count one, and one year (one third of the middle term) on count four (inflicting corporal injury on Henderson).
Respondent's Exhibit A, pp. 2-3.
Discussion of petitioner's claims requires a more detailed summary of the testimony and evidence:
Evidence re: Henderson Charges
Lashaunda Henderson testified that petitioner is the father of her son. (Reporter's Transcript ("RT") at 44.) In September 2002, she worked at the Mercy Med Clinic on the graveyard shift. (RT at 46, 49.) On September 3, 2002, when she arrived at work, she called her mother and told her that petitioner had beaten her up. (RT at 56-57.) At trial, she testified that she lied when she told her mother that petitioner had inflicted her injuries. (RT at 57.) Later, the police arrived to talk to her. (RT at 60.) She told the first officer with whom she spoke that her injuries were caused by someone who jumped her. (RT at 61.) Henderson was later taken to the hospital where she spent the night. (RT at 62-63.)
Several days after September 3, 2002, Henderson spoke with Detective Rankin. (RT at 66.) Henderson told Detective Rankin that she did not want to press charges because she did not know who hurt her. (Id.) Henderson told Detective Rankin that she had been jumped by some girls. (RT at 67.) At trial, Henderson said this was not true. (RT at 67.)
At trial, Henderson testified that her injuries were caused during a fight with Grace Jennings. (RT at 71.) Jennings, although not a blood relative, was like a sister to petitioner. (RT at 82.) Henderson also testified that she brought her son to see petitioner at the jail during the course of the criminal proceedings against him approximately 20-30 times. (RT at 71-73.) She testified that at the time of the incident, she was mad at petitioner because he was having a baby with another woman, suggesting that was why she falsely blamed petitioner for beating her. (RT at 76-77.)
Officer Barretto testified that he interviewed Henderson on the night of the incident at the emergency room. When Officer Barretto asked Henderson what happened she answered that she got beat up but did not want to press charges. (RT at 102.) Henderson told Officer Barretto that petitioner had hurt her. (Id.) She told Officer Barretto that he hurt her the evening before at about 6 p.m. at San Jose and 8th Avenue. (RT at 103.) She and petitioner were walking when he struck her in the face with what she believed was a firearm. (Id.) She told Officer Barretto that petitioner hit her because he found out that she was messing around with a man named C.K. (RT at 105.)
Police Officer Rankin testified that Henderson told her that she never told the police that petitioner assaulted her and that the police who said she did were lying. (RT at 113.)
Officer Rankin testified that Henderson told her that she was assaulted by two or three girls. (Id.)
Hulan Washington testified that he worked with Henderson at the hospital on the night of the incident. He overheard her talking to people on the phone about her injuries. (RT at 167.) He remember her saying, "he did this or he did that," but nothing more specific. (RT at 168.) He did not hear her saying anything to the effect that a woman caused her injuries. (Id.)
Evidence re: Hamilton Charges
Newvonna Carter testified that she is Hamilton's cousin. (RT at 127.) Carter testified that on May 11, 2002, she was visiting her sister-in-law, Vandell Goins. (RT at 128.) Carter, Hamilton, Goins and Goins' five children and Carter's children were there. (RT at 128-29.) Around 7 or 8 p.m. petitioner arrived at the door and asked for Carter's brother. (RT at 131.) After being told that Carter's brother was not there, petitioner walked in the house. (RT at 132.) At this point, Carter went out the front door. (Id.) She saw petitioner talking to Hamilton. (Id.) She then saw that petitioner had Hamilton by the ponytail and Hamilton was screaming. (RT at 133.) Carter saw that petitioner had a gun in his hand and heard him say something like, "I'll kill you, you'll never see your daughter." (RT at 134.) At this time, Carter was at the front door. (Id.) Carter yelled for petitioner to leave Hamilton alone. (RT at 135.) Vandell Goins then called the police. (RT at 136.) While Carter was outside, she also saw petitioner hit Hamilton in the forehead. (RT at 140.)
Hamilton testified that on May 11, 2002, she was living with Vandell Goins. (RT at 172.) She saw petitioner once or twice a month. (RT at 173.) She had a daughter with him. (Id.) On May 11, 2002, she was at Goins' house braiding hair. (Id.) At some time, petitioner arrived. (RT at 175.) Petitioner and Carter began arguing outside the house. (Id.) Hamilton went outside and told petitioner to stop arguing and to leave. (RT at 176.) Petitioner and Hamilton then started arguing. (Id.) Petitioner began pulling Hamilton's hair. (Id.) Hamilton then punched petitioner in the eye. (Id.) This fight occurred inside the house. (Id.) Petitioner got upset after Hamilton hit him. (RT at 176.) Petitioner then charged Hamilton. (RT at 177.)
As they struggled, petitioner pulled out a gun. (Id.) Hamilton got under a table. (Id.) Petitioner put the gun to her head and said, "bitch, you will never see your kids." (RT at 178.) One of petitioner's friends then came in the house and began arguing with Carter. (RT at 179.) Petitioner and his friend then left the house. (Id.)
Hamilton called 911. The tape from this call, which was not transcribed in the court record, was played for the jury. (RT at 180.)
Petitioner alleges that his upper term sentences for count one and its related gun enhancement, as well as his consecutive sentence for count four, violate the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296 (2004). The California Court of Appeal was the last state court to issue a reasoned decision addressing this claim.
The undersigned first considers the claim that imposition of the upper term sentences for count one and the related gun enhancement violated Blakely. After petitioner's conviction became final, the Supreme Court decided Cunningham v. California, 549 U.S. 270 (2007), which extended the holding of Blakely. For the following reasons, the undersigned finds that Cunningham is applicable to petitioner's claims.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme Court held as a matter of constitutional law that, other 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." 530 U.S. at 490. In Blakely, the Supreme Court held that the "statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303.
In People v. Black, 35 Cal.4th 1238 (2005) ("Black I"), the California Supreme Court held that California's statutory scheme providing for the imposition of an upper term sentence did not violate the constitutional principles set forth in Apprendi and Blakely. The court reasoned that the discretion afforded to a sentencing judge in choosing a lower, middle or upper term rendered the upper term under California law the "statutory maximum." Black I, 35 Cal.4th at 1257-61.
In Cunningham, the United States Supreme Court held that a California judge's imposition of an upper term sentence based on facts found by the judge (other than the fact of a prior conviction) violated the constitutional principles set forth in Apprendi and Blakely. Cunningham expressly disapproved the holding and the reasoning of Black I, finding that the middle term in California's determinate sentencing law was the relevant statutory maximum for purposes of applying Blakely and Apprendi. Cunningham, 549 U.S. at 291-94.
In Butler v. Curry, 528 F.3d 624 (9th Cir. 2008), the Ninth Circuit held that Cunningham applied retroactively to a petitioner whose conviction became final on direct review in 2005, after the Blakely decision. In so concluding, the Ninth Circuit examined the "legal landscape" at the time of Butler's sentence and concluded that: "Taken together, Apprendi, Blakely, and Booker firmly established that a sentencing scheme in which the maximum possible sentence is set based on facts found by a judge is not consistent with the Sixth Amendment." Id. at 635.
In the instant case, petitioner's conviction became final ninety days after the January 27, 2005 order by the California Supreme Court denying his petition for review. (Respondent's Exhibit 5); Beard v. Banks, 542 U.S. 404, 411-13 (2004) ("State convictions are final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or such a petition has been finally denied"); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) (the period of "direct review" in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari with the United States Supreme Court). Accordingly, Cunningham is applicable because petitioner's conviction became final after Blakley was decided.
In light of Cunningham, the Supreme Court vacated Black I and remanded the case to the California Supreme Court for further consideration. Black v. California, 549 U.S. 1190 (2007). On remand, the California Supreme Court held that "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." People v. Black, 41 Cal.4th 799, 813 (2007) (Black II). In other words, as long as one aggravating circumstance has been established in a constitutional manner, a defendant's upper term sentence withstands Sixth Amendment challenge. Relying on Black II, the Ninth Circuit recently confirmed that under California law only one aggravating factor is necessary to authorize an upper term sentence. Butler v. Curry, 528 F.3d 624, 641-43 (9th Cir. 2008).
Turning to the merits of petitioner's claim, petitioner was sentenced to the upper term of four years for count one and the upper term of ten years for the related gun enhancement. (RT at 361.) The court sentenced petitioner to the upper terms based on his prior convictions as a juvenile and as an adult and because it believed that petitioner was dangerous. (RT at 361--62.) Regarding his prior convictions, the probation report stated that petitioner had prior juvenile felony convictions for robbery, vehicle theft and assault with a deadly weapon, and one adult felony conviction for vehicle theft. (Clerk's Transcript ("CT") at 314-15). Accordingly, the trial court imposed the upper terms in part based on the petitioner's numerous prior convictions. Reliance on prior convictions as a sentencing enhancing factor does not run afoul of Apprendi, in that such prior convictions need not be proven to a jury. Apprendi, 530 U.S. 490.
Because petitioner's upper term sentences were based, in part, on the fact of petitioner's prior convictions, the trial court did not violate petitioner's Sixth Amendment rights by imposing the upper term sentences for count one and the related gun enhancement. Apprendi, Blakely, Cunningham, supra.*fn1
Petitioner next argues that imposition of consecutive sentences for counts one and four violated the Sixth Amendment. In Oregon v. Ice, ---U.S. ---, 129 S.Ct. 711, 714-15 (2009), the Supreme Court held that a defendant is not entitled to a jury determination of the facts necessary to the imposition of consecutive sentences. Accordingly, this claim is without merit.
The denial of these claims by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. Accordingly, these claims should be denied.
Petitioner argues that the trial court improperly consolidated the trial of the two cases against him. The California Court of Appeal denied this claim for the following reasons.*fn2
On the first day of trial, the prosecutor presented a proposed amended information consolidating the charges in both cases. That afternoon, defendant filed a written opposition to consolidation. Defendant contended he would be prejudiced by consolidation because the case involving Hamilton included a charge that he was a felon in possession of a firearm, while the case involving Henderson did not. He also argued that evidence of a prior domestic violence incident would be admissible in one case but not the other. Finally, defendant argued the evidence in one case was weak, and that case would be "unfairly bolstered by joinder with a strong case."
The following day, the prosecutor argued consolidation was proper because the evidence in both cases would be cross-admissible under Evidence Code section 1109 (FN2). Defense counsel responded that notwithstanding section 1109, the evidence in the two cases was not cross-admissible because "1109 is still subject to 352." The trial court granted the motion to consolidate the two cases, saying: "The Court finds that there is a cross admissibility issue here that I believe that both acts would be admissible one against the other should the cases be tried separately. It is of the same class and it involves the same defendant, similar kind of crime. The Court does not believe that consolidation would unduly deprive the defendant of a fair trial or unduly prejudice him, so I'm going to grant the motion to consolidate."
FN2. Evidence Code section 1109 allows admission of evidence of a defendant's other acts of domestic violence in a prosecution for an offense involving domestic violence. All further statutory references are to the Evidence Code unless otherwise indicated.
Defendant contends "[t]he trial court erred by granting the prosecution ['s] motion to consolidate the informations because a joint trial deprived appellant of a fair trial." We find no error.
"An accusatory pleading may charge ... two or more different offenses of the same class of crimes or offenses, under separate counts...." (Pen.Code, § 954.) However, "the court in which a case is triable, in the interests of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (Ibid.)
Where (as here) the charges in the case all allege offenses of the same class (defendant conceded as much in the trial court), the statutory requirements for joinder are satisfied, and the defendant can predicate error "only on a clear showing of potential prejudice ." (People v. Kraft (2000) 23 Cal.4th 978, 1030.) We review the trial court's ruling for abuse of discretion, which we will find only if the ruling falls outside the bounds of reason. (Ibid.; People v. Osband (1996) 13 Cal.4th 622, 666.) "'The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.' [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case." (People v. Sandoval (1992) 4 Cal.4th 155, 172-73.)
Defendant first argues consolidation was improper because the evidence in the two cases was not cross-admissible. He contends "[t]he trial court erred by relying on section 1109 as the basis for cross-admissibility of the incidents because section 1109 is unconstitutional" because it "violates due process and equal protection." Defendant did not raise this argument in the trial court, and he may not raise it for the first time on appeal. (See People v. Catlin (2001) 26 Cal.4th 81, 122.) In any event, defendant's argument lacks merit because, as he himself acknowledges, many appellate decisions "have squarely upheld the constitutionality of section 1109." (See, e.g., People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-13.) Accordingly, defendant's constitutional argument warrants no further discussion.
Defendant next contends that even if section 1109 is constitutional, the evidence in the two cases was not cross-admissible because "the incident with Ms. Henderson was not admissible to prove the incident with Ms. Hamilton" under section 352. Section 352 permits the court to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... create substantial danger of undue prejudice." Defendant, however, fails to present a developed argument under section 352, arguing only that the incidents were "separate and independent" and that the evidence of the Henderson incident was "weak and conflicting." This argument is not sufficient to persuade us the trial court abused its discretion in determining the evidence of the two incidents was cross-admissible. In any event, "[c]ross-admissibility of evidence in separate trials is but one of the factors the trial court must consider in determining whether potential prejudice requires severance." (People v. Price (1991) 1 Cal.4th 324, 389.)
Moving on to other criteria used in determining whether consolidation is proper, defendant contends he made "a clear showing of potential prejudice" (People v. Kraft, 23 Cal.4th at p. 1030) from the consolidation of the two cases because "[t]he evidence pertaining to the incident with Ms. Henderson was weak and conflicting," while "[t]he prosecution['s] evidence against appellant concerning the incident with Ms. Hamilton was stronger." Defendant contends the case against him involving Henderson was weak because it "rested on Ms. Henderson's out-of-court and largely uncorroborated statements." (FN3). Defendant also claims he was prejudiced because evidence of his felon status was admissible only in the case involving Hamilton.
FN3. Before trial, Henderson told various people that defendant had assaulted her. At trial, she claimed defendant's sister was the culprit.
In opposing the prosecutor's motion to consolidate the two cases, the only information defendant put before the court regarding the comparative strength of the two cases was this: "It is certainly the position of the defense that the case alleging domestic violence [i.e., the Henderson case] is considerably 'weaker' for the prosecution than the other case. The non-alleged domestic violence case has a recorded 911 call from the victim and percipient witnesses. The domestic violence case only has statements made by the alleged victim to civilian witnesses who may or may not appear in court because of their continuing failure to comply with a court order." (FN4). Based on this meager showing, the trial court did not abuse its discretion in implicitly concluding defendant had not made a clear showing of potential prejudice from consolidation.
FN4. Defendant's distinction between the "case alleging domestic violence" and the "non-alleged domestic violence case" appears to have derived from the fact that the Henderson case included an alleged violation of Penal Code section 273.5, subdivision (a) (corporal injury to the parent of the defendant's child), while the Hamilton case did not include a similar "domestic violence" charge.
Defendant repeatedly relies on the testimony produced at trial to support his argument that consolidation was error. That reliance is misplaced. "[I]n assessing whether the trial court abused its discretion in denying severance, we examine the state of the record at the time of the ruling." (People v. Kraft, 23 Cal.4th at 1032.) Thus, the question is not whether there was an abuse of discretion in hindsight based on the evidence produced at trial, but whether there was an abuse of discretion "in light of the showings made and facts known at the time the ...