FINDINGS AND RECOMMENDATIONS
Petitioner Michael A. Bell, a state prisoner, proceeds pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner is currently serving an indeterminate prison term of 15 years to life for committing second degree murder in 1994. At issue here are petitioner's subsequent convictions in the Sacramento County Superior Court, case number 00F04818, of two counts of battery by an inmate for which he was sentenced to a 10 year prison term.
The following statement of facts was taken from the unpublished opinion of the California Court of Appeal, Third District, on direct review. Petitioner is the defendant referred to therein. Since these factual findings 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).
On June 9, 1999, Dale Apodaca was working as a correctional officer at California State Prison, Sacramento. Another officer, Alex Andrews, informed Apodaca that defendant, an inmate, had left a building and gone into the yard in violation of Andrew's direct order not to do so. Andrews asked Apodaca to assist him in approaching defendant.
Andrews told defendant he was going to handcuff him for disobeying the order. Defendant refused, yelling, "I'm not going to fucking cuff up and turn around." Attempting to diffuse the situation, Apodaca told defendant to calm down, assuring him he could see the sergeant if he allowed Andrews to handcuff him and take him to a holding cell. Defendant continued to refuse and continued to yell and curse.
Apodaca reached out with his right arm to have defendant turn around. As Apodaca did this, defendant hit Apodoca in the forehead with his closed fist. Apodaca lost his balance for a moment, staggering back three or four feet. Then he charged defendant and bear-hugged him in the chest to gain control of him. Andrews joined in the fray, and Apodaca fell on top of defendant. Defendant kept hitting Apodaca in the head and chest until other officers arrived and contained him.
As Apodaca got up off of defendant, defendant kicked him. Apodaca suffered permanent injuries to his leg, and as a result, was no longer able to work as a correctional officer.
On April 19, 2000, Correctional Officer Richard Mendoza was supervising the gymnasium at California State Prison, Sacramento. Defendant was one of about 15 inmates inside the gymnasium. At about noon, a melee broke out in the yard. Mendoza heard the officer in the central tower order all inmates in the yard to get down. He also heard shots of tear gas fired into the yard. Mendoza immediately ordered the inmates in the gymnasium to get down. The inmates complied. Mendoza next opened the gymnasium door and stepped just outside the door's threshold. He did this to see if the staff in the yard needed additional help, and also to provide himself an avenue of escape in case the incident spread to the gymnasium.
After taking a quick look at the yard, Mendoza stepped back into the gymnasium. The microphone to his radio fell off his utility belt. As he reached down to grab the microphone, defendant "blindsided" him and hit him on the left side of his face.
The blow pushed Mendoza into a locker and spun him around to face defendant. Mendoza grabbed defendant and began struggling and fighting with him. Defendant continued punching Mendoza in the head and face. Other officers arrived and subdued defendant. No other inmates were involved.
People v. Bell, No. C045135, 2006 WL 181677 at 2 (Cal.App. 3 Dist., 2006).
An information filed in 2000 charged petitioner with three counts of battery by an inmate in violation of California Penal Code section 4501.5, two of which were based on the above incidents, in addition to one count of interference with an executive officer in violation of Penal Code section 69. It was alleged for purposes of California's "three strikes" law (see Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d)) that petitioner had previously been convicted of murder. In 2001, a jury acquitted petitioner of one of the three battery counts (the one not arising from the two incidents described above); the jury was unable to reach a verdict on the remaining counts.
In 2003, petitioner was retried on the two remaining battery counts. Petitioner elected to represent himself but did not appear at trial. This time, the jury convicted him and further found the prior murder conviction allegation true. An aggregate prison term of 10 years was imposed.
Petitioner appealed to the California Court of Appeal, Third District. Except for the correction of a clerical error in the abstract of judgment, the court of appeal affirmed the judgment and sentence in an unpublished opinion. Petitioner sought habeas corpus relief in the state courts which was likewise denied. The parties agree that the claims presented here were properly exhausted in state court and timely presented. Respondent contends, however, that petitioner's prosecutorial misconduct claim is procedurally barred.
The pending federal petition presents six grounds for relief. Each will be separately set forth and discussed in the order of presentation except that petitioner's second ground for relief will be addressed first herein. Petitioner claims:
(A) He was involuntarily removed from the courtroom during trial and unconstitutionally tried in absentia and without counsel;
(B) Insufficient evidence supported the convictions;
(C) The trial court erred in failing to instruct on self-defense;
(D) The trial court erred in failing to give a unanimity instruction;
(E) The prosecutor committed prejudicial misconduct; and
(F) The trial court unconstitutionally imposed an upper term sentence in violation of the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296 (2004).
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 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). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 360 (2002).
V. DISCUSSION A. Trial in Absentia
Petitioner claims that he was unconstitutionally tried in absentia without counsel. On direct review, the California Court of Appeal set forth a lengthy summary of the background to this claim detailing petitioner's participation in the case. It is noted that petitioner has not attempted to rebut any of the court of appeal's factual findings with clear and convincing evidence.
[Requests for appointment before Judge Tochterman]
At the 2001 trial, attorney David Muller represented defendant. The court declared a mistrial on June 6 and reset the matter to June 22. On June 22, 2001, defendant refused to appear, but the court acknowledged attorney Ronald Castro now represented him.
In November 2001, Castro asked to be relieved as counsel in part because he was leaving the country for a long period of time and defendant did not want to wait for his return before proceeding to trial. The court appointed attorney Frances Huey.
The case was set for trial on April 22, 2002, but Huey was ill, so the court vacated the trial date. Trial was rescheduled for July 9, but at Huey's request, the court put trial over to accommodate a motion by defendant to set aside the information under section 995. Defendant claimed the court had erred by allowing him to remove himself from his preliminary hearing. On September 13, 2002, the court denied the motion. The court set the matter for further proceedings on September 24.
On September 24, Huey was in trial on another matter and could not appear. Defendant orally made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), which the court set for October 15. At that hearing, defendant was represented by an unidentified public defender who informed the court attorney Castro was again inheriting the case from attorney Huey. On November 29, the court set trial for April 16, 2003.
On April 16, the prosecutor and attorney Castro announced they were ready to proceed, but no courtrooms were available. The prosecutor announced he would not be available again until the end of May. The court set trial for May 21.
At this point, defendant addressed the court. He stated the delays in getting this case to trial were holding up a transfer for him from an administrative segregation unit to another facility. If trial could not start that day, he offered to change his plea to no contest to both charges and be sentenced at that time.
The prosecutor asked the court not to agree to defendant's request. He had already offered defendant the low term on one count as a plea bargain, and believed it would not be fair to "up the ante" just because defendant wanted to plead.
The trial court noted defendant's objection, but set trial for May 21. It also scheduled a hearing for the next day, April 17, where defendant could announce whether he wanted to change his plea. At the April 17 hearing, defendant repeated his request to plead guilty to both counts if he could not get a trial so he could be transferred out of administrative segregation. The court confirmed the offer made by the prosecution (low term on one count, doubled) was still available. Defendant, however, did not want a plea bargain. He wanted a trial.
The court gave defendant a choice. He could change his plea, or wait for trial on May 21. In response, defendant orally filed a Marsden motion. The court explained granting that motion would extend the trial until a new attorney could assume the case and become prepared. Defendant proceeded with his motion. The court convened an in camera hearing, denied the Marsden motion, and ordered the transcript of the hearing sealed.
Back in open court, defendant next asserted his right to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta [45 L.Ed.2d 562]. The court urged defendant not to represent himself, explaining the numerous and difficult problems he would encounter preparing a case while in administrative segregation. The court explained it could not assist defendant if the prison put restrictions on his library privileges. The court also explained it would not delay the case if he later decided to hire an attorney. Defendant, however, was adamant. The court in writing informed defendant he was entitled to be represented by counsel at any stage of the case but the court would not delay the case after he waived his right to counsel to allow an attorney to prepare to represent him. After giving oral and written warnings, the court reluctantly relieved attorney Castro as defendant's attorney of record. Trial remained set for May 21. Castro agreed to copy his files and have them delivered to defendant.
On May 13, eight days before trial, defendant filed motions for an order unsealing the April 17 Marsden hearing transcript, and for an order to compel the Department of Corrections to allow him pro per privileges for preparing his case. He claimed he had been denied the use of prison procedures afforded to pro per prisoners. On May 16, Judge Ronald Tochterman denied defendant's motions for lack of good cause. Regarding the pro per privileges, the court directed defendant to file a petition for an order to show cause to hold the Department of Corrections in contempt.
After the court confirmed the trial date of May 21, defendant moved to continue the trial date because he had not yet received the case records from Castro. The court denied the motion for lack of good cause and failing to comply with the procedural requirements for seeking continuances, as set forth at section 1050. Defendant complained he could not comply with the statute because he had no access to the law library. The court again directed defendant to file a petition for an order to show cause with respect to contempt.
In response, defendant asked to withdraw his Faretta waiver, claiming he was not being allowed an adequate opportunity to defend himself. The court continued the matter to May 19 to learn if attorney Castro would be willing and ready to proceed to trial on May 21.
At the May 19 hearing before Judge Tochterman, attorney Castro refused to be appointed as defense counsel due to his past relationship with defendant. Castro complained defendant manipulated him and was untruthful. Fern Laetham, executive director of Sacramento County Conflict Criminal Defenders, stated a new appointment would be defendant's fifth. It would take two or three months before a new attorney could be ready to try the case. She offered to find a new attorney and have new counsel set a trial date in a week. The prosecutor did not oppose continuing the case to allow for new counsel.
When the court asked defendant if he agreed to that proposal, he stated he wanted to continue representing himself, and he filed a written motion for a 90-day continuance to allow him to prepare a defense. Defendant claimed good cause existed because he had not yet received the case files from his prior attorney. The court asked whether defendant was now withdrawing his request for an attorney, and defendant confirmed he was doing so.
The court denied the motion for continuance: "I'm not going to grant an evidentiary hearing unless you file a declaration under penalty of perjury satisfying me that there may be some basis for what you are talking about. You have to set forth in detail what requests you have made, when you have made them, to whom you have made them and what responses have been made. So far I haven't seen anything like that."
The court confirmed the trial date, at which point the following occurred: "THE DEFENDANT: "I withdraw my right. I see that you guys are not going to fairly let me represent myself; that I don't get the same privileges as an attorney did when youTHE COURT: [Defendant], you don't get to make a speech. First you make a motion and then maybe-THE DEFENDANT: I made the motion. What I am sayingTHE COURT: I don't know what the motion-wait a moment.
He is interrupting me. [Defendant] is interrupting me. I order that he be removed from the courtroom.
THE DEFENDANT: Fuck this courtroom."
As defendant was removed from the courtroom he spat at the judge. The court stated: "For the record, [defendant] actually spit in the direction of the bench. I don't know if he hit anybody, and he said what he said. [¶] I'm satisfied that his most recent motion was made in bad faith and was an effort to ...