FINDINGS AND RECOMMENDATIONS
Petitioner Singh, a state prisoner, proceeds pro se with an amended petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of various sex offenses in the Sacramento County Superior Court, case number 01F01700, for which he is currently serving an aggregate prison term of 39 years to life.
The following recitation of facts is taken from the unpublished opinion of the California Court of Appeal, Third District, on direct review of petitioner's convictions. Since these facts have not been rebutted with clear and convincing evidence, they are presumed correct. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004).
From August 2000 to February 2001, a group of young men picked up prostitutes on Stockton Boulevard in Sacramento, kidnapped and sexually assaulted them. Their crime spree ended after they picked up a teenager who was not a prostitute. She escaped after the sexual assault and called the police. One of her attackers was arrested at the scene and the others shortly thereafter.
In a 68-count information, the People charged six defendants with various crimes arising from serial gang rapes against eight victims. The court severed the trial of one defendant, and the case proceeded to trial against the remaining five defendants [including petitioner Singh] with two juries. Seven counts involving one victim were dismissed after she failed to appear at trial. The two juries convicted defendants of most, but not all, of the charged offenses. Each defendant was sentenced to a lengthy prison term, including a life sentence. ...
As with most sexual assault cases, this case turned on the credibility of the victims, both as to what crimes occurred and who the perpetrators were. All of the victims' credibility was bolstered by the number of victims; seven women told very similar stories. Corroboration was also provided by DNA and other forensic evidence. In the case of Naryan, who had a separate jury, the prosecution also presented his three statements to the police in which he admitted some of the conduct at issue. The strength of the evidence varied as to each victim. The prosecution did not present the case in chronological order; rather, the strongest case, in which the victim was not a prostitute and reported the assault immediately, was presented first.
People v. Deo, et al., 2008 WL 2404210 at 1 (Cal. Ct. of App. 3rd Dist. June 13, 2008).
Petitioner was charged and convicted in connection with only one of the victims, named Jennifer. Evidence was presented at trial with respect to the offenses against Jennifer (Counts 27 to 33) as follows:
Shortly after midnight, on the morning of February 21, 2001,-about 24 hours before [another victim]'s assault- 33-year-old Jennifer S. was working as a prostitute on Stockton Boulevard between 47th and 65th Streets. A car pulled up and she asked the man if he wanted a date. He said yes and she got in. The man said he had $60 and a place around the corner. He turned on 65th Street and drove to the end of Savings Place. He said it was safe; he had been there before. The car door opened and three men with jackets over their heads appeared; two had knives. Jennifer looked to the driver, who just smiled. They put her in the back seat. When she screamed, they put a knife to her face and told her to shut up and do what they said.
Then they drove out into the country. She told them she had a son and begged them not to kill her. They said they were taking her to a friend's party. One man told her they would not kill her; she would not get hurt.
The bald man next to Jennifer, Narayan, had her fondle him and orally copulate him. The men in the front seats passed a crank pipe. The car turned onto a gravel road, at the end of which was a car and a bright light. They turned around and returned to Savings Place.
There two men walked her to an abandoned car. One man held her arm tight and told her not to run or try anything stupid because they had guns and would kill her. She got in the car and Narayan followed. He told her to remove her pants and asked if she had a condom. She did not because one of the other men had taken it from her earlier. Narayan got on top and raped her. He made her promise not to tell the others that he had not used a condom. He ejaculated. During the rape, Narayan's penis slipped out at least twice and he reinserted it.
The next guy (Singh) got in. He put on a condom and had her orally copulate him until he ejaculated. She removed his condom and threw it out the window of the car.
The driver (Deo) got in front and told her to come up front. Since she did not have a condom, he said she could orally copulate him. He fondled her breasts. When he ejaculated, she spit it on the floor board of the car. He told her the fourth guy would be coming; he was the mean one. He told her not to try to get away because they had guns and would kill her. Once she heard a car drive off, she took off running. The men had taken her two silver rings. She had given them her money, fifty cents.
When she got home she did not call the police because she had outstanding warrants and could not bear the thought of going to jail after she had been raped. When she calmed down somewhat, she called the police, but the officer could not guarantee no arrest, so she did not report the assault. Jennifer reported it the next morning to Detective Sophia McBeth-Childs. She met McBeth-Childs and took her to the abandoned car. Jennifer refused to go to the hospital; saying she had been poked and prodded enough. She did give the detective the clothing she wore during the assault. Jennifer selected Kumar's photograph from a lineup and said it looked like one of the assailants. At trial, she identified Narayan as the first assailant and Singh and Deo as two of her attackers.
DNA analysis was conducted on the condom, a napkin, the floor mat and Jennifer's jeans. DNA on the inside of the condom matched Singh's profile. The probability of another match was at least 1 in a quadrillion. DNA on the napkin and the floor mat matched Deo; the probability of another match on the napkin was over 1 in several billion, and the probability of another match for the mixed sample on the floor mat was 1 in 500,000 for East Indians, 1 in 45 million for African Americans and 1 in 15 million for Hispanics. DNA on the jeans matched Narayan's profile with a probability of 1 in 30 trillion.
In a videotaped interview played to Narayan's jury, he described one assault where they used two knives to scare the victim.
Deo and Narayan were convicted of robbery, but Singh was acquitted on this count. All three men were convicted of sexual battery. They were convicted of three counts of rape in concert and two counts of oral copulation in concert. Kidnapping enhancements were found true as to all three; multiple victim enhancements were found true as to Deo and Narayan. The jury found true an enhancement for personal use of a weapon only as to Narayan. The jury was unable to reach a unanimous verdict as to Kumar on any of these counts and the court declared a mistrial.
For his defense at trial, petitioner's counsel attacked the DNA evidence but also claimed the sex acts were consensual: she was a prostitute doing her job. Id. at 11.
Petitioner was acquitted of robbery but convicted of sexual battery, three counts of rape in concert and two counts of oral copulation in concert. The jury found true a kidnapping enhancement. Petitioner was sentenced to 14 years plus 25 years to life in prison.
Petitioner and three of his co-defendants appealed to the California Court of Appeal, Third District; each appellant filed his own brief. In an unpublished opinion, the state appellate court affirmed petitioner's judgment and sentence. A petition for review to the California Supreme Court was denied. Petitioner sought habeas corpus relief in the California state courts where relief was likewise denied. The parties agree that petitioner has exhausted state remedies with respect to all grounds presented in the petition.
The pending federal petition presents fifteen grounds for relief. Each will be separately set forth and discussed herein. Petitioner claims, verbatim:
I. The erroneous misjoinder of petitioner's trial with co-defendants was unusually prejudicial, rising to the level of deprivation of due process of law, a fair trial, and the right to the assistance of counsel.
II. Petitioner's rape in concert convictions are unsupported by substantial evidence of force or violence, denying petitioner due process of law.
III. The court erred prejudicially in admitting evidence of photographs or co-defendants pointing guns at themselves and each other, denying petitioner due process of law and a fai[r] trial.
IV. The prosecutor committed incurable prejudicial misconduct or prosecutorial error in arguing the counts against the other defendants to rebut petitioner's claim Jennifer S. consented, denying petitioner due process of law and a fair trial.
V. The instructions given in this case improperly directed the jury to make an in concert finding if it found that petitioner was a[n] aider and abettor o[f] the sexual offenses committed by others in this case.
VI. The trial court committed prejudicial error by failing to instruct the jury sua sponte that evidence of a pre[ ]-offense statement in the nature of an admission by petitioner should be viewed with caution.
VII. The court erred in instructing the jury with CALJIC No. 2.21.2, because the instruction improperly permitted evaluation of the pivotal prosecution testimony by a probability standard, denying petitioner due process of law.
VIII. The cumulative effect of the errors discussed throughout deprived petitioner of due process of law and a fair trial and requires reversal of the judgment.
IX. The trial court erred in imposing sentence for count 32 under penal code section 667.6, subdivision (D), requiring remand for resentencing.
X. The full determinate consecutive terms imposed under counts 31 and 32 violated Blakely v. Washington.
XI. Under the facts of this case, imposition of a term of 25 years to life under Penal Code Section 667.61, subdivisions (D)(2), rather than 15 years to life under subdivision (E)(1) of that section, deprived petitioner of due process of law and equal protection of the law.
XII. Imposing added "in concert" punishment for oral copulation committed by threats, when rape in concert requires use of force or violence, likewise deprived petitioner of due process of law and equal protection of the law.
XIII. The term of 39 years [t]o life imposed upon petitioner, a young man with no prior record, constituted cruel and unusual punishment under both the California and United States Constitutions.
XIV. Petitioner was denied the effective assistance of counsel during his first and only appeal as of right in violation of the Sixth and Fourteenth Amendments to the Federal Constitution: Article I Section 15 of the California Constitution: Strickland v. Washington (1984) 466 U.S. 668; People v. Pope (1979) 23 Cal. 3d 412.
XV. Petitioner was denied his right to the effective assistance of counsel during his state court trial under the Sixth and Fourteenth Amendments to the Federal Constitution: Strickland v. Washington (1984) 466 U.S. 668; People v. Pope (1979) 23 Cal. 3d 412.
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 be granted only for violations of the Constitution or laws of the United States. 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
DISPOSITION OF THE CLAIMS
As previously set forth, petitioner was charged only in connection with the counts 27-33, those involving the victim Jennifer. But petitioner's jury also heard evidence regarding similar attacks against six other victims who testified at trial. People v. Deo, supra, at 1-11.
Petitioner moved for a severance at various points both prior to and during trial. First, months before trial, he filed a motion to sever his trial from the other defendants or, in the alternative, for a separate jury. As the court of appeal later noted on direct review, the motion "contained little discussion or analysis," and simply cited four cases: People v. Aranda, 63 Cal.2d 518 (1965), Bruton v. United States, 391 U.S. 123 (1968), Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185 (1998). People v. Deo, et al., supra, at 23; (see also Clerk's Transcript ("CT") at 717-18). The motion was denied.*fn1 Petitioner renewed the motion during jury selection; again it was denied. People v. Deo, et al., supra, at 23.
After the jury was sworn in, but before the first witness testified, the trial court apparently noticed a joinder problem that was not explicitly raised in either of petitioner's prior motions. Under section 1098 of the California Penal Code and People v. Ortiz, 22 Cal.3d 38 (1978), joinder was inappropriate for any defendant not joined with all other defendants in at least one single count. The court invited severance motions from petitioner, Reginal Prasad and Nalesh Prasad, and recessed so counsel could research the issue. Petitioner, through counsel, declined to move for severance and withdrew his previous motions on this issue without comment or explanation. The trial court made a record of these events, noting also that Reginal Prasad's motion to sever was being granted and that Nalash Prasad had elected not to request severance and to be jointly tried, for tactical reasons. (Reporter's Transcript ("RT") at 1581-84.)
Just before Jennifer was scheduled to testify, petitioner's attorney renewed his motion to sever on the earlier raised Aranda/Bruton grounds,*fn2 contending that he would be prejudiced by admission of his co-defendants' incriminating extra-judicial statements which would come in through Jennifer's testimony. The trial court denied, the motion, noting it was not brought under section 1098 of the Penal Code or Ortiz, 22 Cal.3d 38. (RT at 2818-21.)
Near the end of the prosecution's case in chief, petitioner, through counsel, filed a motion to sever, this time citing section 1098 of the Cal. Penal Code and Ortiz, 22 Cal.3d 38. (CT at 769-82.) In the motion, petitioner asserted that the trial court's previous offer to sever his trial had been conditioned upon a waiver of speedy trial and double jeopardy rights and petitioner elected not to waive those rights. Petitioner argued that he was not required to waive constitutional rights to obtain severance and moved for severance and dismissal based on double jeopardy.
The trial court again denied the motion, holding essentially that petitioner had waived the joinder issue and that "the potential [improper joinder] issue that previously existed as to Ashmindar Singh has been cured through the diligence of the court in bringing the issue to counsel's attention and the subsequent actions taken by certain counsel on behalf of their respective clients." (RT at 5585.) The trial court put a lengthy ruling on the record, later summarized by the court of appeal as follows:
The court recited the history of the various severance motions. Once the court noticed the severance problem under Ortiz, supra, 22 Cal.3d 38, 148 Cal.Rptr. 588, 583 P.2d 113, counsel for the Prasad brothers responded in a "straightforward" manner, but counsel for Singh refused to state his decision to decline severance was either tactical or informed. The court found counsel's comments "disingenuous," particularly since counsel had missed an important legal argument for severance. The court stated it did not force counsel to do anything; it simply gave him the law. The court recalled the discussion of the benefit to Singh of having three additional experienced DNA counsel to cross-examine expert witnesses and the benefit of other skilled, competent defense attorneys in the same trial. The court considered Singh's decision not to sever to be "tactical, reasoned and considered." The court concluded the issue of improper joinder was waived.
People v. Deo, et al., supra, at 24.
Petitioner claims here that the erroneous misjoinder of his trial with that of his co-defendants deprived him of due process of law, a fair trial, and his right to the effective assistance of counsel.
The Supreme Court has addressed the question of misjoinder of defendants in the context of Rule 8 of the Federal Rules of Criminal Procedure and consistently approved of joint federal trials of multiple co-defendants on grounds of judicial economy and in the interests of justice. Zafiro v. United States, 506 U.S. 534, 537 (1993) (citing Richardson v. Marsh, 481 U.S. 200, 209 (1987) and Opper v. United States , 348 U.S. 84, 95 (1954)); United States v. Lane, 474 U.S. 438 (1986). In Lane, the Supreme court noted that "[i]mproper joinder does not, in itself, violate the Constitution," and further opined that misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial. Lane, 474 U.S. at 446 n.8. The Ninth Circuit recently held that this comment was dicta, that it did not set forth a governing legal principle, and thus does not constitute clearly established federal law for purposes of section 2254(d)(1). Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010), cert. denied, 131 S.Ct. 243 (2010). The Ninth Circuit further held that "neither Zafiro v. United States nor United States v. Lane establish a constitutional standard binding on the states requiring severance in cases where defendants present mutually antagonistic defenses." Collins, 603 F.3d at 1132-33.
In a different line of cases, the Ninth Circuit has held that federal habeas corpus relief is available for improper consolidation only if the "simultaneous trial of more than one offense... actually render[ed] petitioner's state trial fundamentally unfair and hence, violative of due process." Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991); see also Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) ("The requisite level of prejudice is reached only if the impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict.") (internal quotations and citation omitted). In evaluating the prejudice suffered by petitioner, the focus is "particularly on [the] cross-admissibility of evidence and the danger of 'spillover' from one charge to another." Id.
The risk of undue prejudice is "particularly great whenever joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence would otherwise be inadmissible." Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2001). "Undue prejudice may also arise from the joinder of a strong evidentiary case with a weaker one." Id. (citing Bean v. Calderon, 163 F.3d 1073, 1085 (9th Cir. 1998). In both of those situations, the danger arises from the difficulty for a jury in "compartmentalizing the damaging information." Id. (citing Bean, 163 F.3d at 1084). A jury's ability to compartmentalize the evidence is best demonstrated by its failure to convict the defendant on all counts. Park v. California, 202 F.3d 1146, 1150 (9th Cir. 2000). In addition, prejudice can be limited "through an instruction directing the jury to consider each count separately." Davis, 384 F.3d at 639 (citing Lane, 474 U.S. at 450 n.13). Such instructions "have a better chance for effectiveness 'when the evidence of each crime is simple and distinct, even in the absence of cross-admissibility.'" Id. (quoting Bean, 163 F.3d at 1084-85).
Respondent argues that because the Supreme Court has never squarely addressed the constitutional issue raised by petitioner's misjoinder claim, the court of appeal's decision could not have been contrary to, or an unreasonable application of any clearly established Supreme Court law. In this case, there appears no need to decide what, if any, clearly established Supreme Court precedent governs petitioner's claim under section 2254. Petitioner fails to make a meritorious constitutional claim because he has not shown the prejudice required under the standard set forth in Lane, to the extent it is applicable, or under any of the Ninth Circuit's precedent. See Lane, 474 U.S. at 446 n.8; Featherstone, 948 F.2d at 1503; Davis, 384 F.3d at 638.
Although petitioner was charged in connection with only one of the eight victims in the case, the evidence involving each victim was distinct as to both place and time. See People v. Deo, et al., supra, at 1-11 (separately summarizing the facts of the offenses against each victim). This separation of counts and events reduced the potential for prejudice. See Davis, 384 F.3d at 639. As the court of appeal noted, the trial court "took great care to fashion and repeat appropriate limiting instructions," including telling jurors to consider evidence offered on particular counts only against the defendant charged in those counts, and specifying the relevant counts to which the evidence related throughout trial. People v. Deo, et al., supra, at 25; (see also RT at 1587 (trial court instructed jurors "Unless you are otherwise instructed, evidence presented regarding each count is admitted only against the defendant or defendants charged in that count. You may not consider this evidence against any other defendant not charged in that count unless you are specifically otherwise instructed.").) The trial court's instruction further reduced the potential for prejuduce. See Lane, 474 U.S. at 450 n.13 (potential for prejudice from joint trials "may be reduced to a minimum by carefully crafted limiting instructions with a strict charge to consider the guilt or innocence of each defendant independently") (internal quotes and brackets omitted); Davis, 384 F.3d 639 (prejudice can be limited by instructing jurors to consider each count separately).
It is noteworthy that the jury acquitted petitioner on the robbery count in connection with the offenses against Jennifer, while convicting co-defendants Deo and Narayan on that count. People v. Deo, et al., supra, at 26. The jury also found the weapon enhancements true only as to Narayan, who had admitted he had a knife. Id. This same jury failed to reach a unanimous verdict as to Kumar on the counts involving Jennifer, even though Kumar was convicted on forty-two counts involving four of the other victims. Id. As the court of appeal noted, "[t]hese results indicate the jury considered the charges against each defendant separately." Id.
Petitioner argues that he was unusually susceptible to prejudice in this case because he was the only defendant to assert consent as a defense, which was severely undermined by evidence that his co-defendants were involved in gang-style rapes of several other women who worked as prostitutes. "Mutually antagonistic defenses are not prejudicial per se." Zafiro, 506 U.S. at 538. Moreover, under all the circumstances, the case against petitioner was strong. As the court of appeal noted,
DNA evidence tied him to the crime and showed sex acts with several men had occurred, consistent with Jennifer's version of events. The forensic evidence suggested assault rather than an act of prostitution. Jennifer proved an effective witness and she stood up under cross-examination. While the defense offered reasons for her to lie, such as that she had to explain to her pimp why she had no money after trading sex for drugs, the prosecution argued her reporting the crime despite her profession and outstanding warrants showed her credibility. There was no evidence, from cross-examination of Jennifer or otherwise, to support the defense of consent.*fn3 People v. Deo, et al., supra, at 25. Under these circumstances, petitioner's defense that Jennifer consented to have sex with the group of men would have only been marginally stronger, if at all, had petitioner been tried separately. Petitioner fails to demonstrate the requisite prejudice for his claim of improper joinder. See Zafiro, 506 U.S. at 540 ("it is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials").
In an alternative argument, petitioner claims that trial counsel rendered ineffective assistance of counsel by failing to assert proper grounds in his pre-trial severance motion, and byrefusing to accept the trial court's mid-trial offer to grant severance and a new trial.
To demonstrate a denial of the Sixth Amendment right to the effective assistance of counsel, a petitioner must establish that counsel's performance fell below an objective standard of reasonableness, and that he suffered prejudice from the deficient performance. Strickland v. Washington, 466 U.S. 668, 690 (1984). Prejudice is found where there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.
As to this claim, the court of appeal held:
On the surface trial counsel's actions in this case appear perplexing. He moved for severance, without any argument in support other than simply citing to Aranda/Bruton. He failed to discover the statutory basis (Pen.Code, § 1098) that would have made his motion meritorious. Then, when the trial court offered severance, he declined it and withdrew his earlier motions, claiming he was unfairly being forced to choose between constitutional rights. He chose to retain his double jeopardy claim, although he had no such claim to make, foregoing severance, which would have offered some benefit. Indeed, he now ...