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Dale L. Mark v. Ben Curry

July 27, 2011




Petitioner, Dale L. Mark, is a state prisoner proceeding pro se witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a determinate term of twelve years and eight months following his convictions by jury trial in the Sacramento County Superior Court, Case Nos. 05F08317 and 05F08318, for two counts of grand theft and two counts of second degree burglary with penalty enhancements for prior terms of incarceration. Petitioner presents various claims challenging the constitutionality of his conviction.


Petitioner presents several grounds for relief in his pending petition. Specifically, the claims are as follow:

(1) Material and prejudicial testimonial evidence was introduced against him without opportunity for cross-examination, in violation of his federal right under the confrontation clause.

(2) The prosecutor committed prejudicial misconduct by disparaging defense counsel in front of the jury and insinuating that she did not believe her client's defense.

(3) The trial court violated his right to a jury trial by imposing the upper term sentence based on facts that were neither found by a jury nor admitted by Petitioner, in violation of his Sixth Amendment right to a jury trial.

Both parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case, including trial and entry of final judgment, with direct review by the Ninth Circuit Court of Appeals, pursuant to 28 U.S.C. § 636(c)(1).



The basic facts of Petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follow:

DeVon's Jeweler's Incident

On the morning of August 12, 2005, a man entered the DeVon's Jewelers located at Arden Fair Mall. He asked a salesperson whether the store had any platinum watches. Tom Carson, the manager of the jewelry store, told the man the store did not have any such watches and the man left the store.

A few minutes later, the man came back into the store. Carson showed him the store's Rolex watches. First, Carson showed the man a stainless steel watch. Then, he showed the man a solid, rose gold, Rolex watch valued at a little over $19,000. The man tried the gold watch on his wrist and wanted to look in the mirror that was two or three feet away. A salesperson asked Carson a question and as Carson turned his head, the man ran out the door with the watch still on his wrist and without paying for it.

Carson ran after the man and chased him through the mall, through the parking lot and to the adjacent street. He saw the man jump into the back seat of a dark blue sedan. Carson could not see the car's license plate, but saw it leave in the direction of the freeway. Approximately three weeks later, Carson was shown a photo lineup. Carson took 60 to 90 seconds to view the lineup and then picked out defendant's photograph, saying he though defendant was the man who had stolen the Rolex watch. Carson also identified defendant at trial as the man who had taken the watch. The store's surveillance video of the incident was played for the jury. We have reviewed the surveillance video, which shows a clear, albeit very brief, view of the man entering the store.

Fingerprints taken from the watch display counters came back negative to defendant. However, the prosecutor argued the surveillance tape from DeVon's Jewelers showed defendant did not touch the counter.

Grebitus & Sons Jewelers Incident About 4:00 p.m. on August 25, 2005, a man entered Grebitus and Sons Jewelers located at the downtown plaza in Sacramento. Clifford Krayenbuhl, a salesperson, assisted the man, answering his questions about Rolex watch models and costs. In addition to Krayenbuhl, another employee of Grebitus & Sons, Judith Gaudette, noticed and watched the man as he was in the store. The man seemed fidgety and nervous. Krayenbuhl and Gaudette estimated the man was in the store between 15 and 25 minutes.

Krayenbuhl and Gaudette testified the same man returned to the jewelry store around 10:30 a.m. the next day. Krayenbuhl went to assist him again. Eventually, Krayenbuhl took a steel and gold Rolex watch out of the case to show the man. Then he showed the man a solid white gold model, valued at approximately $20,000. The man tried it on his wrist. Krayenbuhl took out a matching ladies' watch, valued around $15,000. The man quickly stood up, grabbed the ladies' watch from Krayenbuhl's hand and ran out of the store, still wearing the man's watch on his wrist.

Krayenbuhl leapt over the counter, threw off his coat and ran after the man. The man went downstairs to the street and then west on L Street. When Krayenbuhl was within a quarter block of the man, the man noticed him coming. The man turned and ran north on 5th Street. The man tried to cross the street but was blocked by traffic. At this point, a car pulled up to the curb by Krayenbuhl and someone asked him what was going on. Krayenbuhl told the couple inside the car that a man had just stolen watches from the jewelry store. Krayenbuhl asked the couple to pursue the man. Krayenbuhl watched the couple drive after the man up the street, blocking the man from crossing the street, but Krayenbuhl lost sight of them at the intersection. Krayenbuhl returned to the store to speak to police and review the store's surveillance tapes. The surveillance tapes were played for the jury at trial. Our review of the tapes indicates a clear view of the same man entering the jewelry store both dates and running out of the store on the second day, quickly followed by a man who is presumably Krayenbuhl.

The Sacramento Police Department received a 911 call on August 26, 2005, about 10:58 a.m. from someone identifying herself as Margo Pumar. Pumar told the 911 operator that she and her husband were just driving in downtown Sacramento when they witnessed a man chasing a Black man away from the shopping mall at 5th and L Streets. The man said the Black man had just stolen a bunch of Rolexes. They followed the Black man and saw him get into a silver Nissan Sentra. They saw him as he got onto the freeway going northbound. They just got off the freeway at Richards Boulevard, but had taken down the license plate number of the Sentra, which Pumar then provided. Pumar said it was possible she could identify the man because they drove up to him and honked so that he turned and looked at them. Pumar did not testify at trial.

It was later determined the license plate number belonged to a Sentra rented to defendant a few days earlier by the Enterprise Rent-A-Car located in San Francisco. The rental agency identified defendant at trial as the man who rented the car.

At trial, Gaudette recognized the man on the surveillance tapes from Grebitus & Sons as the man who came into the store late on August 25 and then again the next morning when he took the watches. She also identified defendant in court as the thief who took the watches on August 26, saying she was very certain of her identification. Fingerprint lifts from the inside of the store doors came back negative to defendant. The prosecutor argued the surveillance video showed defendant did not place his hand on the door in the position of the print lifted from the door.

(Lodged Doc. 3 at 2-6).

Following a jury trial, Petitioner was convicted of grand theft and second degree burglary of Devon's Jewelers (counts one and two, respectively), as well as grand theft and second degree burglary of Grebitus & Sons Jewelers (counts three and four, respectively). In addition, the trial court found true allegations that Petitioner had served nine prior prison terms. He was sentenced to an aggregate term of twelve years and eight months.*fn1

Petitioner appealed his convictions to the California Court of Appeal, Third Appellate District. The court affirmed Petitioner's convictions with a reasoned opinion on May 7, 2008. (Lodged Doc. 3). Petitioner then filed a petition for review of the appellate court's decision in the California Supreme Court. The court denied the petition without comment on July 16, 2008. Petitioner filed this federal petition on May 7, 2009. Respondent filed its answer on December 7, 2009, and Petitioner filed his traverse on February 8, 2010.


This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Although "AEDPA does not require a federal habeas court to adopt any one methodology," Lockyer v. Andrade, 538 U.S. 63, 71 (2003), there are certain principles which guide its application.

First, AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Provided that the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). Conversely, when it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Second, "AEDPA's, 'clearly established Federal law' requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions." Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, "clearly established Federal law" will be " the governing legal principle or principles set forth by [the U.S. Supreme] Court at the time a state court renders its decision." Lockyer, 538 U.S. at 64. It is appropriate, however, to examine lower court decisions when determining what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).

Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not contain "a formulary statement" of federal law, but the fair import of its conclusion must be consistent with federal law. Id.

Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a 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." Williams, 529 U.S. at 410. Thus, the focus is on "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694 (emphasis added).

Finally, the petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24 ; Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).



Petitioner claims his rights to due process and to confront the witnesses against him were violated when the trial court admitted into evidence hearsay statements made by Margo Pumar to a 911 dispatcher during an emergency telephone call placed by Ms. Pumar regarding her observations of Grebitus & Sons employee Krayenbuhl's chase after a man in the K Street Mall area of downtown Sacramento. According to Petitioner, admission of Ms. Pumar's statements violated his right to confront witnesses against him because her statements constituted testimonial evidence and she was unavailable for cross-examination at trial.

Prior to trial, the prosecution made a motion to introduce the tape of Ms. Pumar's 911 call, which was opposed by the defense.*fn2 Following a hearing on the matter, the trial judge determined that the substance of the call was non-testimonial and, subject to establishment by the prosecution of a proper evidentiary foundation, would be admissible at trial pursuant to CAL. EVID. CODE § 1280,*fn3 the business records exception to the hearsay rule, and CAL. EVID. CODE § 1240,*fn4 the spontaneous declaration exception to the hearsay rule. (Lodged Doc. 9 at 119-124). The tape of Ms. Pumar's 911 call was subsequently introduced to the jury via the testimony of Brenda Holloway, the assistant manager of communications for the Sacramento Police Department, despite continuing objection from defense counsel. (Lodged Doc. 9 at 269-274). Ms. Holloway testified that the communications division of the police department is responsible for taking 911 calls. The calls are recorded, stored temporarily within a master computer, and then transferred to a disk for permanent storage in a locked drawer in the clerical office. A transcript of the 911 call is contained in the record:

OPERATOR: Sacramento Police Department. Carol speaking. May

I help you?

M. PUMAR: Hi. Um, my husband and I were just driving in downtown and we witnessed this, uh, man chasing, um, a Black man away from, I think it was like, uh one - - the shopping mall that's on, um, 5th and L, I think. Somewhere around there. Wherever that shopping center is. And, um, obviously it looked like it was pretty, um, hot pursuit. So we kind of, um, asked the guy - -OPERATOR: Like - -M. PUMAR: - - who's following him, and he said that he was, um, - - he said the - - the Black man had just, um, stolen a bunch of Rolexes. And so we followed th, um, - - the young, Black man. He's probably in his twenties, um, until he got in a car. And then we saw him as he just got on, um, Northbound 5 at J Street. He was just, um, at, uh, - - uh, we were just - - we just got off at Richard's Boulevard, but we got his license plate number.

OPERATOR: Go ahead with that.

M. PUMAR: It's, uh, - - it's 5KMZ522. It's a Nissan Sentra, silver. ...

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