The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Michael William Beard, a state prisoner appearing pro se, filed a Petition for Habeas Corpus under 28 U.S. C. § 2254. Beard is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Mule Creek State Prison. Respondent has answered, and Beard has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In October 2005 Beard was convicted by a jury in the Alameda County
Superior Court of
one count each of Kidnapping with the Intent to Commit Rape or Sexual
Penetration (Cal. Penal
Code § 209(b)(1)), Rape of an Unconscious Person (Cal. Penal Code §
261(a)(4)), and Digital
Penetration of an Unconscious Person (Cal. Penal Code § 289(d)). The
trial court sentenced
Beard to life in prison with the possibility of parole on the
kidnapping conviction, plus a
combined consecutive, determinate prison term of 20 years on the other
two counts. Beard
timely appealed his conviction and sentence to the California Court of
Appeal, which affirmed his conviction and the sentence in an unpublished decision.*fn1
The California Supreme Court
denied review on July 16, 2008. Beard filed a petition for habeas
relief in the El Dorado County
Court on July 28, 2008. The El Dorado County Court denied his petition
in an unreported,
reasoned decision. Beard's petition for habeas relief to the
California Court of Appeal was
summarily denied without opinion or citation to authority. Beard then
petitioned the California
Supreme Court for habeas relief, which was summarily denied without
opinion or citation to
authority on September 9, 2009. Beard timely filed his Petition for
relief in this Court on
December 9, 2009.
The factual basis underlying Beard's conviction, as recited by the California Court of Appeal, was:
The 15-year-old victim went with some friends to a wooded area behind their apartment complex to drink. Teenagers often congregated in this area, where there were a number of logs in a pile. We will refer to this area as "the log pile" to distinguish it from the different location where the sexual assault took place.
[Beard], the 20-year-old brother of one of the victim's friends, was already at the log pile when the group arrived. They were joined by one of [Beard's] friends, Luke Branson.
The victim and the others drank a lot of vodka. The victim became drunk, kissed Branson, and told him that she wanted to have sex with him. She sat on the ground, leaning against the log, and spoke incoherently. When she tried to stand up, she passed out. She did not remember anything that occurred after this point.
Branson was the main prosecution witness and described what transpired. According to his testimony, [Beard] said, "Come on, let's go fuck her." Branson accompanied [Beard], who picked the victim up and carried her approximately 50 to 85 feet to a more secluded area, across a road and down into a gully where there were trees and bushes. The area was not visible from the road but was another place where teens often gathered to smoke and drink. We refer to this site as "the wooded area."
[Beard] put the victim on the ground, said he was going to get some condoms, and started to walk back to his apartment.
As [Beard] neared the apartment complex, he ran into another teen, Daniel R., who was headed to the log pile to join everyone else. [Beard] said, "We're getting ready to fuck some bitch, do you want a condom?" Daniel said he was "not cool with that," and continued to the log pile. En route, Daniel met [Beard's] brother, Matt, who told him that no one was at the log pile. Matt and Daniel instead went to the wooded area, where the victim was lying unconscious, with her head in Branson's lap. She was fully clothed.
Daniel tried to wake the victim, but was unsuccessful. Branson told him that he would take care of her, and Daniel returned to the apartment complex.
[Beard] came back to the wooded area and gave Branson a condom. Branson and [Beard] undressed the victim, leaving only her swimsuit top around her neck. According to Branson, [Beard] put his fingers into the victim's vagina. Branson put his mouth on the victim's breast. Branson then put on a condom and tried to penetrate the victim; as described later in this opinion, his testimony was equivocal as to whether he actually did so. He said that Matt covered the victim's eyes and, at one point, [Beard] held her legs as Branson tried to penetrate her. The victim did not regain consciousness at any time. Branson did not ejaculate, and he threw the condom and its wrapper on the ground.
Branson heard people calling the victim's name and saw flashlights. [Beard] and Branson left the victim, ran up the embankment, across the road, and back to [Beard's] apartment, where they sat on the patio and smoked cigarettes. When a police officer asked if they had seen the victim, they replied they had not.
At some point, another neighbor noticed the police action, and asked Daniel if he knew what had happened. While they were talking, [Beard] came up to them and said there was a girl who was naked, drunk, and passed out in the woods. Daniel led the neighbor to the wooded area, where they found the victim.
Emergency personnel took her to the hospital. The victim was still unconscious and had a blood alcohol level of 0.30. A nurse performing an external pelvic examination of the victim noticed plant matter and dirt in and around the victim's genitals. She also noticed redness and a small tear, injuries consistent with penile and digital penetration. Because the victim began to struggle, the nurse was unable to perform an internal examination. The victim eventually regained consciousness, but did not remember anything that had happened.
Officers investigating the assault took [Beard] and his brother, Matt, to the police station for questioning. When the brothers were left alone in the police car, a recording device picked up their conversation. [Beard] said to Matt: "Me and [Branson] were together, you don't know [Branson's] name . . . ." "I'm just making sure you don't (inaudible) all you know is that [the victim] (inaudible) was with Melissa [Beard's sister]." "Just say, just say, just say that's all you know." [Beard] continued, "All they're going to do is ask us questions. Do not break down Matt, Matthew, do not break down. They're gonna ask you some questions. [¶] . . . [¶] You don't know nothing. Don't let em fucking-just tell them I wasn't involved, you weren't involved. You weren't even near the girl." He added, "[J]ust say you didn't see her. Say you might have seen her earlier at the pool today. That's the only time you see her. Or you-or you heard that Melissa was kicking it with her earlier just a little while ago. That's all you, that's all you, that's all you know. But if they are trying to say was I with her? No. Were you with her? No. Was [Branson] with her? No. Me and [Branson] were together." He added, "[W]e didn't do anything any ways. We just don't want to mix up our stories. We didn't do anything. We weren't even-we weren't even with her anyways."
The next night, officers conducted a probation search of the apartment where [Beard] lived with his family. They found an empty vodka bottle, similar to the one found at the log pile. They also found a package of condoms that matched the one found in the wooded area.
DNA on the condom found in the wooded area matched that of Branson and the victim.
Branson entered a plea agreement with the prosecution and testified at trial against defendant. The jury was instructed that Branson was an accomplice as a matter of law.*fn2
II. GROUNDS RAISED/DEFENSES
In his Petition, Beard raises 15 grounds: (1) insufficient evidence corroborating the testimony of the accomplice; (2) the asportation of the victim was insufficient to support a conviction for aggravated kidnapping; (3) insufficient evidence of penetration to support a conviction of rape; (4) exclusion of the details of his accomplice's plea agreement violated his Sixth Amendment right to confrontation; (5) the prosecution's comment on Beard's silence violated his Fifth Amendment right against self-incrimination; (6) the trial court erred by giving a "natural and probable consequences" instruction to the jury; (7) failure to include a lesser- included offense instruction to the jury; (8) a failure to sua sponte instruct the jury on a Mayberry defense;*fn3 (9) the trial court improperly imposed sentences on all three counts of the conviction in violation of California Penal Code § 654; (10) the selection of the upper term violated the principles of Apprendi-Blakely-Cunningham; (11) the State reneged on a prior "Global Settlement" plea agreement, which violated his rights under the Due Process Clause of the Fourteenth Amendment; (12) the trial court improperly permitted a potential key defense witness to assert a blanket Fifth Amendment privilege against testifying; (13) his right to the assistance of counsel was infringed when a counsel, who subsequently represented Beard's co- defendant/accomplice, Branson, was permitted to appear on behalf of Beard at a preliminary hearing; (14) a denial of his fundamental rights to a fair trial under the Sixth Amendment; and (15) ineffective assistance of trial counsel.
Respondent contends that Beard's fourth ground is procedurally barred, and that Beard's sixth, seventh, eighth, and twelfth grounds are barred by Teague v. Lane.*fn4 Respondent raises no other affirmative defense.*fn5
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn7 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn8 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn10 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing that the state court determination was incorrect.*fn11 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn12 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn13 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn14
In applying this standard, this Court reviews the last reasoned decision by the state court.*fn15 State appellate court decisions that affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn16 Under California's unique habeas procedure, a defendant who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn17 This is considered as the functional equivalent of the appeal process.*fn18 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn19 This presumption applies to state trial and appellate courts alike.*fn20
To the extent that Beard raises issues of the proper application of
state law, they are beyond the purview of this Court in a federal habeas
proceeding.*fn21 It is a fundamental precept
of dual federalism that the states possess primary authority for defining
and enforcing the criminal law.*fn22 "[A] state court's interpretation of state
law, including one announced on direct appeal of
the challenged conviction, binds a federal court sitting in habeas
corpus."*fn23 A federal court errs if
it interprets a state legal doctrine in a manner that directly
conflicts with the state supreme court's interpretation of the law.*fn24 It does not matter
that the state supreme court's statement of the law
was dictum if it is perfectly clear and unambiguous.*fn25
A determination of state law by a state
intermediate appellate court is also binding in a federal habeas
action.*fn26 This is especially true
where the highest court in the state has denied review of the lower
A petitioner may not transform a state-law issue into a federal one by simply asserting a violation of due process.*fn28 "[The Supreme Court has] long recognized that a mere error of state law is not a denial of due process."*fn29 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn30 "'Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.'"*fn31
Beard's 15 claims fall within seven categories: insufficiency of the evidence (first, second, and third); evidentiary rulings (fourth and twelfth); jury instructions (sixth, seventh, and eighth); improper sentencing (ninth and tenth); prosecutorial error (fifth and eleventh); ineffective assistance of counsel (thirteenth and fifteenth); and judicial bias (fourteenth). To avoid unnecessary duplication and promote clarity, this Court will address Beard's claims in a group by category.
Initially, this Court notes that the Petition filed in this case is terse, and the factual basis for each claim is inadequately developed. The petition must specify all the grounds for relief available to the petitioner and the facts supporting each ground.*fn32 As the Supreme Court has stated:
Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground." See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 ("In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important . . . ."); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 ("'[N]notice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error." (internal quotation marks omitted)). Accordingly, the model form available to aid prisoners in filing their habeas petitions instructs in boldface:
"CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date." Petition for Relief From a Conviction or Sentence By a Person in State Custody, Habeas Corpus Rules, Forms App., 28 U.S.C., P. 685 (2000 ed., Supp. V) (emphasis in original).
A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to "show cause why the writ should not be granted." § 2243. Under Habeas Corpus Rule 4, if "it plainly appears from the petition . . . that the petitioner is not entitled to relief in the district court," the court must summarily dismiss the petition without ordering a responsive pleading. If the court orders the State to file an answer, that pleading must "address the allegations in the petition." Rule 5(b).*fn33
Beard bears the burden of proving a constitutional violation by a preponderance of the evidence.*fn34 Although the Petition in this case is not necessarily so deficient as to require summary dismissal, the paucity of a factual basis to support Beard's claims imposes an increased burden on this Court to search the record for the facts.
A. Insufficiency of the Evidence
As articulated by the Supreme Court in Jackson, the constitutional
sufficiency of the evidence is whether, "after viewing the evidence in
the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime
beyond a reasonable doubt."*fn35 This Court must,
therefore, determine whether the California
court unreasonably applied Jackson. In making this determination, this
court may not usurp the
role of the finder of fact by considering how it would have resolved
any conflicts in the evidence,
made the inferences, or considered the evidence at trial.*fn36
Rather, when "faced with a record of
historical facts that supports conflicting inferences," this court
"must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved
any such conflicts in favor
of the prosecution, and defer to that resolution."*fn37
Ground 1: Lack of Corroborating Evidence
Beard contends that he was convicted of aggravated kidnapping and digital penetration based solely on the uncorroborated testimony of an accomplice. In rejecting Beard's argument, the California Court of Appeal held on direct appeal that there was sufficient corroborating evidence to support both aggravated kidnapping and digital penetration.*fn38
There is no federal constitutional rule requiring corroboration of
Rather, Beard "would have [this Court] abandon [the] time honored rule
that the uncorroborated
testimony of an accomplice is sufficient to convict."*fn40
In this case, Beard's claim is based solely
upon California state law concerning accomplice status and the
requirement of corroboration.
The California Court of Appeal held that there was sufficient corroborating evidence to support the accomplice's testimony under California law. That determination is beyond the purview of this Court in a federal habeas proceeding.*fn41 Having failed to present a question of constitutional dimension, Beard is not entitled to relief under his first ground.
Ground 2: -- Aggravated Kidnapping; Ground 3: -- Rape
In his second ground, Beard contends that, because the victim was only moved about 20 yards, the asportation was insufficient to support a conviction for aggravated kidnapping. Beard was convicted of aiding and abetting his accomplice in committing the rape. In his third ground, Beard argues that, because the testimony of the accomplice was equivocal as to whether the accomplice had penetrated the victim, the evidence was insufficient to establish rape. On direct appeal, the California Court of Appeal rejected Beard's arguments on both issues, holding: Sufficiency of the Evidence [Beard] challenges the sufficiency of the evidence to support his convictions for aggravated kidnapping and rape. His claims are unpersuasive.
A. Kidnapping [Beard] asserts that there was insufficient evidence of asportation to establish that a kidnapping occurred. To the contrary. The victim was unconscious at the log pile and somehow ended up at the wooded area. She did not get there under her own power. Someone moved her to this area, a spot 50 to 85 feet from the original site, down a gully, and into a secluded area away from public view. The asportation element of aggravated kidnapping is met if the victim is moved a distance more than incidental to the commission of the sexual offense, and the movement substantially increased the risk of harm to the victim. (People v. Dominguez (2006) 39 Cal.4th 1141, 1151-1152, 1155.)
That is precisely what happened here. The victim was moved a distance away, to a place that significantly decreased the possibility that she might be seen or rescued. This movement was not merely incidental to the rape. (See People v. Dominguez, supra, 39 Cal.4th at pp. 1153-1154.) More than sufficient evidence established the asportation element of aggravated kidnapping.*fn42
B. Rape [Beard] was convicted of rape of an unconscious person based on the theory that he aided and abetted Branson, the person who actually had sexual intercourse with the victim. [Beard] contends that his conviction must be reduced to attempted rape because there is insufficient evidence of penetration to sustain a conviction on the greater offense. We disagree.
"The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find [Beard] guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.)
A reasonable inference "'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' [Citation.]" (People v. Raley (1992) 2 Cal.4th 870, 891.)
"Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (People v. Jones, supra, 51 Cal.3d at p. 314.)
At trial, Branson testified that he put on a condom and "began to try to have sex with [the victim]. After a minute, I stopped, partly because I couldn't, and partly because I felt it was wrong, so I stopped." He explained that he "[t]ried to insert [his] penis in her vagina," but was not able to do so. When asked whether he knew if the tip of his penis entered the victim's vagina, Branson responded, "Not that I know. It might have. I don't recall it doing that, I mean." Later Branson was asked, "And when you say you tried to have sex with her, did the tip of your penis go [past] the outer lips of her vagina?" Branson replied, "As far as I can remember, no." Counsel asked, "Did the tip of the condom?" Branson answered, "I believe so, yes."
During cross-examination, [Beard's] attorney asked Branson whether he had sex with the victim. Branson responded, "If you call it sex, yes." He later stated that he knew the condom "had been inside her or touched her," and on several occasions admitted having lied when he told officers that he did not have sex with the victim.
A nurse testified that the redness and swelling on portions of the victim's genitalia were consistent with penile penetration. In response to questions from defense counsel, the nurse acknowledged that redness can be caused by infection, but added that infection usually involves more discharge, swelling and redness to a different part of the genital area than seen on the victim.
The victim testified that in the 60 days preceding the assault, she had not had any injury to, or medical treatment of, her genitals and had not had intercourse with anyone.
[Beard] contends that the evidence presented at trial is insufficient to establish that penetration occurred. We disagree.
Rape involves "[a]ny sexual penetration, however slight[.]" (§ 263.) "The penetration which is required is sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina." (People v. Karsai (1982) 131 Cal.App.3d 224, 232, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)
[Beard] focuses his attention on the lack of evidence of vaginal penetration. But, as People v. Karsai makes clear, vaginal penetration is not required for rape; penetration of the external genital organs is sufficient. Here, Branson acknowledged that the tip of his condom penetrated the victim, and the physical examination of the victim disclosed results consistent with penile ...