The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented on September 2, 2008 to have a United States Magistrate Judge conduct all further proceedings in this case. Respondent consented on December 9, 2008.
Following a jury trial in 2005, Petitioner was convicted of second degree murder (Count I), possession of a firearm by a felon (Count II) and discharging a firearm from a motor vehicle (Count III). The jury found the following enhancements/special circumstances with respect to Count I: (1) that Petitioner perpetrated the second degree murder by means of shooting a firearm from a motor vehicle with the intent to inflict great bodily injury; (2) that Petitioner personally and intentionally discharged a firearm which caused great bodily injury or death; and (3) that Petitioner personally used a firearm. (See Clerk's Tr. at P. 309-10.) With respect to Count III, the jury found the following enhancements: (1) that Petitioner personally and intentionally discharged a firearm which caused great bodily injury or death; and (2) that Petitioner personally and intentionally discharged a firearm. (See Clerk's Tr. at p. 312.) Petitioner received a sentence of twenty years to life for his second degree murder conviction, plus a consecutive sentence of twenty-five years to life for the enhancement of intentionally discharging a firearm which caused great bodily injury or death along with a one year sentence because of a prior prison term. Thus, Petitioner was sentenced to forty-six years to life imprisonment.*fn1
In this federal habeas petition, Petitioner raises five claims; specifically: (1) the trial court's refusal to grant a two-week continuance to permit Petitioner's expert to appear violated his constitutional and statutory rights ("Claim I"); (2) the trial court abused its discretion and violated Petitioner's state and federal constitutional rights by refusing to grant a one or two day mid-trial continuance so that a percipient defense witness could appear ("Claim II"); (3) the trial court abused its discretion and violated Petitioner's constitutional rights by refusing to grant a continuance of the hearing on Petitioner's motion for a new trial ("Claim III"); (4) the multiple conviction rule of People v. Pearson, 42 Cal. 3d 351 (1986) should apply to California Penal Code § 12022.53(d) as a lesser included offense of Petitioner's conviction for the underlying substantive charge and special circumstance and that his conviction for second degree murder along with the enhancement constituted double jeopardy ("Claim IV"); and (5) the multiple conviction rule of Pearson bars Petitioner's conviction on Count III because it is a lesser included offense of Petitioner's second degree murder conviction and that his conviction of the enhanced second degree murder conviction and Count III constituted double jeopardy ("Claim V"). Petitioner also requests an evidentiary hearing on these Claims. For the following reasons, Petitioner's request for an evidentiary hearing and his Petition for writ of habeas corpus are denied.
II. FACTUAL BACKGROUND*fn2
Donna Prater loaned her bicycle to defendant. On March 2, 2003, while driving with a friend, Tina Davido, Prater saw a teenage Black male riding a bicycle that resembled hers. She stopped and asked the teenager about the bike. He said he had purchased it from a "Mexican guy" for $20.
As the women continued driving, defendant, then almost 26 years old, called Prater and asked if she could pick him up and give him a ride home. Defendant is Hispanic. After picking up defendant, Prater drove towards defendant's home, all the while looking for the teen she had seen on the bicycle. She wanted to see defendant's response if they encountered the teen.
In fact, they saw the teen on the bike, and Prater commented to defendant that the teen's bike looked like her bike. Defendant acted surprised. He tried to call the teen over, but the man rode off. Defendant told Prater to follow the teen, saying "This nigger must have taken it off my porch." Prater attempted to follow the teen, but she lost him.
As they continued looking, Prater came upon a couple, a young Black man and Black woman, standing in the street and arguing with each other. The man was 16-year-old Duraey Kenneth Jones, and the woman was Natasha Powells, the mother of Jones's girlfriend. Prater pulled over.
Defendant got out of the car and asked the couple if they had seen the teenager on the bicycle ride by. The couple began by yelling back at him. Powells began yelling at defendant, telling him they were in their own argument and he should go away.
As defendant attempted to ask again, Jones hit him. Defendant swung back and missed, and Jones hit him again. By now, more people had gathered around. One man asked Prater and her friends to leave. Prater apologized and explained why they were there. She also yelled at defendant to get back into the car.
Defendant, bleeding, got back in the car. Jones continued yelling at him. Defendant told Prater to go. Jones walked around the front of the car and was walking around to the side and rear of the car as Prater began pulling away. As she did, she heard three shots, and saw defendant leaning out of the passenger window. Davido testified that after the shooting, defendant sat back down in the car and pointed the gun at her and Prater. Davido told Prater to "just drive right" because Prater was "swerving all over."
Jones died from a gunshot wound that entered his upper right back and exited his right neck. Based on black material located around the entrance wound, Dr. Mark Super, the forensic pathologist who performed an autopsy on the victim, concluded the wound was produced by a bullet that bounced off the asphalt pavement and fragmented. There were also wounds from bullet fragments to Jones' right chest and the back of his left thigh. The pathologist found no evidence of a direct hit upon Jones.
III. PROCEDURAL BACKGROUND
Petitioner was sentenced to forty-six years to life imprisonment after a jury trial. Petitioner raised the claims he includes in this federal habeas petition in the state proceedings. On January 3, 2008, the California Court of Appeal affirmed the judgment.*fn3 The California Supreme Court denied Petitioner's petition for review on April 9, 2008 without opinion. Petitioner filed the instant federal habeas petition with this Court on August 18, 2008.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d).
If a state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a petitioner's habeas claims. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Additionally, if a state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). See Larson v. Palmateer, 515 F.3d 1057, 1062 (9th Cir. 2010).
As a threshold matter, this Court must "first decide what constitutes 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Lockyer v. Andrande, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)(1)). "'[C]learly established federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'" Id. This Court must consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Lockyer, 538 U.S. at 72. Under the unreasonable application clause, a federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, "a federal court may not issue the writ simply because the 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 411. Although only Supreme Court law is binding on the states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a state court decision is an objectively unreasonable application of clearly established federal law. See Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) ("While only the Supreme Court's precedents are binding . . . and only those precedents need be reasonably applied, we may look for guidance to circuit precedents.").
The first step in applying AEDPA's standards is to "identify the state court decision that is appropriate for our review." See Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). When more than one court adjudicated a petitioner's claims, a federal habeas court analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). In this case, the last reasoned state court opinion was from the California Court of Appeal, Third Appellate District.
V. PETITIONER'S CLAIMS FOR REVIEW AND REQUEST FOR AN EVIDENTIARY HEARING
In Claim I, Petitioner asserts that the trial court's denial of his request pre-trial for a continuance constituted an abuse of discretion and violated his state and federal rights. Initially, to the extent that the Petitioner asserts that the denial of the continuance violated state law, that claim is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Nevertheless, Petitioner also argues that the denial of the continuance motion violated his federal constitutional due process rights. Additionally, he asserts that by denying the continuance motion, the trial court denied him effective assistance of counsel because defense counsel could not prepare/conduct the trial without the assistance of his expert.
The California Court of Appeal provided the background to Petitioner's pre-trial continuance motion. It then analyzed the Claim on the merits. The court stated the following:
This case was subject to numerous extensions before it finally reached trial. Trial was originally set for late January 2004, but that month defendant's request to represent himself was granted and the trial date was vacated. Over the next few months, trial dates were set and vacated, and trial was eventually set for September 8, 2004. On that date, defendant requested reappointment of the public defender, and the trial date was vacated. Later that month, the public defender declared a conflict, and Kenneth Rosenfeld was appointed as counsel. Rosenfeld represented defendant through trial.
On October 21, 2004, trial was set for March 16, 2005. On March 16, the trial date was vacated because Rosenfeld was in trial. A new date was set for May 12, 2005. On May 12, trial was moved to June 30, 2005, because counsel for both parties were in trial. On June 30, counsel for both parties agreed to trail the matter to July 7, 2005. The prosecutor did not oppose any of these extensions.
On July 6, 2005, the date before trial, defendant filed a motion seeking a continuance. Defense counsel declared he had retained the services of an "expert in bullet paths" for "possible rebuttal testimony" and to have him "listen to the testimony of Dr. [Mark] Super and other witnesses." Counsel stated the expert would be unavailable until July 26.
The matter was considered at three different hearings. The Honorable John V. Stroud in Department 4 heard the motion first on the morning of the trial. Defense counsel claimed the expert was a material witness to be present for cross-examination of Dr. Super and "possibly" to testify about ricochet. Counsel stated the expert was unavailable because he had a conflicting court appearance in Colorado and a family conflict. Counsel told the court he could not proceed without the expert.
Judge Stroud denied the motion: "Just to come in and say he's preparing for another case, he's going to be a witness in another case is not sufficient grounds for his unavailability." He assigned the case for trial to Department 14, the Honorable David W. Abbott.
Later that morning, defense counsel renewed his motion before Judge Abbott. Counsel identified the expert as Larry McCormick. McCormick, counsel claimed, was an expert in crime scene reconstruction, bullet paths and bullet trajectories, and had qualified as an expert in the Sacramento Superior Court. McCormick was to evaluate the autopsy report, and he was to provide ballistics reconstruction, bullet trajectory, and crime scene reconstruction. Counsel claimed Dr. Super could not provide this information.
The prosecutor opposed on numerous grounds. The case had been continued many times, and defense counsel had assured the prosecutor "over and over and over" that he would be ready for trial, even as recently as one week before. The prosecution had "difficult witnesses" who were ready to testify, and a family that was eager to put this matter behind them.
The prosecutor also argued the expert witness was not material. There was no dispute that the victim was killed by bullet fragments that ricocheted. Moreover, Dr. Super was qualified to testify as to the cause of death, the type of weapon used, and, if necessary, trajectory. Any testimony from McCormick, the prosecutor argued, would be cumulative.
Defense counsel stated he had worked with McCormick for many years, and he had accepted McCormick's word that he was unavailable until July 26. Counsel read into the record all of Dr. Super's report. He argued it seemed unlikely that one fragmenting ricocheted bullet could hit "the anterior chest and back," and he needed McCormick to reconstruct the scene to address that issue. "Mr. McCormick intends to be here," counsel stated, "to hear material witnesses and their testimony in order to formulate diagrams and mathematical calculations, which are far beyond the realm of my understanding or expertise."
Judge Abbott agreed with Judge Stroud and the prosecutor, and he denied the motion. The prosecution's witnesses were ready at some expense and difficulty. Also, it was not clear to the court that McCormick would provide testimony that would expand or clarify Dr. Super's testimony. The court denied the motion without prejudice. Defendant could renew it after the court had seen the evidence and defendant could demonstrate McCormick's testimony would be probative. If at that time there was good cause to recess the trial for two or three days to allow McCormick to appear, the court would consider doing that.
Defense counsel stated he could not prepare for cross-examination without McCormick. He asked for additional time so that Judge Stroud could reconsider his earlier denial because that court had not seen Dr. Super's report. The court granted the request, and the parties were back before Judge Stroud before the day was out. The court put the matter over until the following morning, and requested additional information on the expert's unavailability. The next day, defense counsel informed the court he had spoken with McCormick and was ready to provide additional information. Counsel had first contacted McCormick in February 2005 about the case after Dr. Super had filed an addendum to his coroner's report, and McCormick had agreed to assist defendant. Unbeknown to counsel, McCormick had moved to Colorado in April or May to become the chief operating officer of a professional rodeo association. Counsel had not been able to provide McCormick with a firm trial date in February, April and May because no "definite date" had been set and he had been in a long homicide trial.
Defense counsel contacted McCormick about one week before trial started, and McCormick informed him he was not available on July 7. McCormick was busy with a major event for his rodeo association on July 15, including meetings with shareholders and the media. On July 19, McCormick was scheduled to testify under subpoena in a court matter in Colorado. The earliest he could appear in this matter was July 21.
Judge Stroud denied the continuance motion, stating he had not heard any new information that changed his decision of the previous day. Defense counsel responded: "It's a mistake on my part. It's a mistake that I had made and I don't want [defendant] to be punished for that. I'm willing to accept this court's contempt. I have an attorney present with me. [¶] But to punish [defendant] for me not checking with Larry McCormick within the last couple of months and checking on his schedule to make sure that July 7th was an absolute day, I was unaware he was the chief operating officer of the [rodeo association]." The court reiterated its decision: "I think your case for a continuance is worse after the information you've given me today . . . ."
Defense counsel again claimed he would not be able to do the trial and was going to ask to be relieved. He followed through on his request to be relieved the following week, but the court denied it. Counsel also filed in this court a petition for writ of prohibition, which we denied . . . "Continuances shall be granted only upon a showing of good cause." ([Cal. Penal Code] § 1050, subd. (e).) "'The granting or denial of a continuance during trial traditionally rests with the sound discretion of the trial judge.' [Citation.] 'The burden is on [the defendant] to establish an abuse of judicial discretion . . . .' [Citation.] '[A]n order of denial is seldom successfully attacked.' [Citation.]" (People v. Beeler (1995) 9 Cal.4th 953, 1003.) "'The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion. In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction. [Citations.]' [Citations.]" (People v. Zapien (1993) 4 Cal.4th 929, 972.)
The trial court here did not abuse its discretion in denying defendant's motion for a continuance. The record demonstrates the court considered defense counsel's diligence in securing the witness's attendance, the burden on other witnesses and the court, and the likelihood that the benefit defendant sought from the continuance would be achieved. Sufficient evidence supports the court's weighing of these factors and concluding against defendant. The court determined that counsel had not been diligent in securing McCormick's attendance. Counsel himself stated that he had not kept in contact with the witness to inform him of the trial dates after first retaining him. Trial dates changed three times between the time counsel retained McCormick and the time he contacted McCormick to inform him of the July 7 trial date. A diligent attorney would have informed the witness each time trial was rescheduled and ascertained the witness's availability for a new date.
The court relied upon the prosecutor's representations and the record to note the impact continuing the trial would have on witnesses and the court. Trial had been continued numerous times for legitimate reasons. The prosecutor had difficulty arranging for his witnesses' attendance, but he did so in reliance on defense counsel's repeated assertions that he would be ready on July 7. Counsel could have prevented this had he maintained contact with McCormick over the course of the case's scheduling changes. Most significantly, the court concluded that McCormick's testimony would add little to the undisputed facts already at hand. There was no dispute that the bullets ricocheted and fragmented before striking the victim. Testifying as to the bullet's exact trajectory adds little to the obvious fact that the gun was not aimed directly at the victim but was nonetheless fired by defendant in a reckless and conscious disregard of life. Granting the continuance thus would have added little to the case.
Under these circumstances, we conclude the trial courts did not abuse their discretion in denying defendant's request for a two-week continuance.
The matter of whether to grant a trial continuance is traditionally within the discretion of the trial judge. See Avery v. Alabama, 308 U.S. 444, 446 (1940). "[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel." Ungar v. Safafite, 376 U.S. 575, 589 (1964). Whether a denial of a continuance deprives a defendant due process "must be found in the circumstances present in every case, particularly the reasons presented to the trial judge at the time the request is denied." Id. at 589; see also Morris v. Slappy, 461 U.S. 1, 11-12 (1983) ("[B]road discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence' upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel.") (citation omitted).
There is no specific test to decide when denial of a continuance is so arbitrary as to violate due process. See Ungar, 376 U.S. at 589. The United States Court of Appeals for the Ninth Circuit has enunciated four factors that a court should examine in determining whether a trial court unreasonably denied a criminal defendant's motion to continue; specifically: (1) the appellant's diligence in preparing his case; (2) the likelihood that the continuance would serve a useful purpose; (3) whether the continuance would inconvenience the parties, the court, or other witnesses, and (4) whether the appellant was prejudiced by the district court's refusal to grant the request for a continuance. See United States v. Rivera-Guerrero, 426 F.3d 1130, 1138-39 (9th Cir. 2005); see also United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985). Both Petitioner and Respondent agree that these are the relevant factors to consider in this federal habeas petition.*fn4 (Compare Pet'r's Pet. at p. 35-36 with Resp't's Answer at p. 10.) The Ninth Circuit has applied these factors in determining the arbitrariness of the denial of a continuance motion on ...