The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, Gregory Anthony Powell, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a maximum sentence of 19 years six months after a jury convicted him on one count of attempted voluntary manslaughter and one count of assault with a deadly weapon. The jury also found true the sentencing enhancements that Petitioner personally used a firearm in committing the offenses and that he inflicted great bodily injury. Petitioner raises five claims in this federal habeas petition; specifically: (1) the trial court erred in admitting into evidence the victim's preliminary hearing testimony when the victim was unavailable to testify at trial in violation of Petitioner's right to confront the witnesses against him ("Claim I"); (2) the prosecution removed a juror based on the juror's race in violation of Batson v. Kentucky, 476 U.S. 79, 96 (1986) ("Claim II"); (3) the erroneous jury instruction on attempted manslaughter, which included discussion of implied malice when the crime of attempt requires proving a specific intent to kill, allowed the jury to find Petitioner guilty without the prosecution proving each element of the offense beyond a reasonable doubt ("Claim III"); (4) the trial court erred in imposing the upper term sentence without relying on additional facts proven to the jury ("Claim IV"); and, (5) the trial court erred when it ruled on Petitioner's presentence time credits outside of Petitioner's presence and off the record ("Claim V"). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL BACKGROUND*fn1
Starkisha Green was shot and wounded in the parking lot of the Motel 7 in Vallejo at about 7 p.m. on July 5, 2002. She told a Vallejo police officer, who responded to reports of the shooting, that the man who shot her was an African American named "G". Both Green and Melissa Lujan [also referred to as Lisa], who had driven Green to the motel, later identified the shooter as appellant from photo lineups.
When Lujan's car entered the parking lot of the Motel 7, they encountered a car exiting the parking lot driven by one Nicole Fonseca, with whom Green had a prior altercation. Appellant was a passenger in Fonseca's car.
As the cars pulled alongside each other, Green and Fonseca started arguing, and soon an argument developed between Green and appellant, with Green accusing appellant of stealing some jewelry. As Lujan tried to drive away, Fonseca's car blocked Lujan's car from leaving. Appellant and another African-American male then jumped into the back seat of Lujan's vehicle, whereupon Green tried to get out of the car. While Green was attempting to get out of the vehicle, two shots were fired. Appellant continued to shoot at her as she ran away from the cars.
Green was helicoptered to John Muir Hospital in Walnut Creek, where doctors found two bullets in her, one in her stomach and one in her arm. A .22 caliber bullet was removed from Green's stomach.
The following day, July 6, 2002, another Vallejo police officer stopped appellant for driving without a license plate. A female was in the car with him. Appellant lacked identification. He said his name was John Lashawn Harris, but did not know his own age. The officer arrested him and, thereafter, found a loaded .22 caliber revolver under the right-front passenger seat. The gun held nine bullets, but had four bullets and four empty casings inside. In the passenger's purse was another single round.
On September 19, 2002, the Solano County District Attorney filed an information charging appellant with two counts, the first for attempted murder and the second for assault with a deadly weapon. Both counts included allegations of personal use of a firearm and personal infliction of great bodily injury, as well as an allegation of two prior felony convictions after which appellant had not remained free from prison custody for five years. (Pen.Code, §§ 187, subd. (a), 245, subd. (a)(2), 664, 667.5, subd. (b) & (c)(8), 1192.7, subd. (c)(8) & (23), 1203.095, 12022.5, subd. (a)(1), 12022.53, subd. (b), (c) & (d), 12022.7, subd. (a).)
Appellant pled not guilty and denied the various allegations on September 30, 2002.
The case was tried to a jury over three days starting on May 7, 2003. Lujan, who had driven Green to the motel, testified for the prosecution. Green herself could not be located, according to the prosecution; accordingly, her preliminary hearing testimony was read to the jury.
The prosecution also called the motel's manager, three Vallejo police officers involved in the events of July 5 and 6, 2002, and a deputy sheriff/criminalist who testified regarding the similarity between the bullet recovered from Green's stomach and the .22 revolver found in the car appellant was driving. On the last trial day, the prosecution called the court's own bailiff and a Solano County correctional officer who, in combination, testified that, during the trial, appellant had passed a note to another African-American detainee, one Andre Bryant, asking him to "be my alibi witness" for July 5, 2002. This note was read to the jury.
Appellant's trial counsel presented three witnesses, a motel employee named Summerville and two John Muir Medical Center doctors. Summerville testified that, after Green had been shot, she did not identify the shooter by name or other identification. One of the doctors testified that Green told her she used both heroin and methamphetamine, and the other that she had admitted smoking heroin earlier on July 5, 2002.
The prosecution recalled one of the Vallejo police officers who had previously testified as a rebuttal witness. He testified that, when he interviewed Summerville immediately after the shooting, he recalled Green identifying the shooter as "G."
After a day and a half of deliberation, the jury returned verdicts finding appellant not guilty of attempted murder as charged in count I, but guilty of attempted voluntary manslaughter and also guilty of assault with a deadly weapon as charged in count II. Additionally, it found true each of the charged enhancements, except that relating to the two charged prior felony convictions (for which appellant was imprisoned at the same time). Appellant admitted those.
The trial court denied appellant's motion for a new trial on July 2, 2003; on July 11, 2003, it sentenced him to a total prison term of 19 years and six months. This consisted of the upper term of five years, six months, for attempted voluntary manslaughter, an upper term of ten years for personal use of a firearm, three years for the infliction of great bodily injury, and one year for the prior prison term enhancement. All of these sentences pertained to count I of the information; the court stayed any sentence under count II pursuant to [Penal Code] section 654.
II. 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); Perry v. Johnson, 532 U.S. 782, 792- 93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000). Under section 2254(d)(1), a state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" on the correctness of the state court's decision. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "[A] habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of" the Supreme Court. Harrington v. Richter, 562 U.S. __, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005).
"The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted).
"Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
"When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).
III. ANALYSIS OF PETITIONER'S CLAIMS
In Claim I, Petitioner argues that the prosecution's use of the victim's preliminary hearing testimony at trial violated his constitutional right to confront the witnesses against him guaranteed by the Sixth Amendment. Petitioner does not argue that the use of preliminary hearing testimony violates the Confrontation Clause per se. Rather, Petitioner contends that under the facts of his case, the testimony was inadmissible because Petitioner was not given an adequate opportunity to cross-examine the victim during the preliminary hearing. This argument stems from three rulings the trial court made during the victim's testimony at the preliminary hearing, upholding the prosecutor's objections and limiting the scope of the cross-examination.
Petitioner does not challenge the determination that the witness, whose whereabouts were unknown, was unavailable to testify at his trial. In ruling on Petitioner's Confrontation Clause claim, the California Court of Appeal found as follows:
Before trial, the prosecution moved for permission to read Green's testimony at the preliminary hearing to the jury. This motion (which was opposed by appellant) was accompanied by many pages of exhibits from the files of the district attorney's investigator showing extensive but unsuccessful efforts to subpoena Green in both Vallejo and Sacramento. That investigator testified at a pretrial hearing as to these efforts. The trial court found there was due diligence in attempting to serve Green, a finding which appellant does not challenge here. Rather, appellant argues he did not have an adequate opportunity to cross-examine Green at the preliminary hearing.
That hearing took place on September 9, 2002; appellant was represented by the same counsel that defended him at trial. Green testified for the prosecution as to the events of July 5, 2002, at the Vallejo Motel 7. That direct examination is recorded in approximately 10 pages of the transcript of that hearing. Appellant's counsel's cross-examination of Green covers 12 pages of the same transcript. He got her to admit that she was in possession of heroin on the day in question and that she knew appellant only as "G."
During the course of this cross-examination, the prosecutor made seven objections to questions posed to Green by appellant's counsel; four of them were sustained and the other three overruled. One of the objections sustained was that the question posed was compound-which it clearly was. The other three were sustained on the basis that they sought discovery of issues not directly relevant to the crimes charged and, in one instance, also asked for hearsay.
On appeal, appellant claims his counsel was denied an opportunity to adequately cross-examine Green at the preliminary hearing. More specifically, he contends that the magistrate's "rulings restricting cross-examination at the preliminary hearing denied appellant an adequate opportunity to cross-examine this shaky witness."
The governing statute on this issue provides: "(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and . . . [¶] (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (Evid.Code, § 1291, subd. (a)(2).)
Our Supreme Court's most recent interpretation of this statute was in People v. Zapien (1993) 4 Cal.4th 929, 974-976. There, a convicted defendant contended he had been denied his right to confront an important witness because, based on her assertion of her privilege against self-incrimination, she had been declared unavailable and her preliminary hearing testimony read to the jury. The defendant argued on appeal that his motive for cross-examining that witness at the preliminary hearing "differed materially and substantially" from his motive for doing so at trial, and thus admission of her preliminary hearing testimony was error.
The court, in an opinion authored by then Associate Justice George, disagreed, holding: "Frequently, a defendant's motive for cross-examining a witness during a preliminary hearing will differ from his or her motive for cross-examining that witness at trial. For the preliminary hearing testimony of an unavailable witness to be admissible at trial under Evidence Code section 1291, these motives need not be identical, only 'similar.' [Citation.] Admission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitutions-not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial [citation], but because the interests of justice are deemed served by a balancing of the defendant's right to effective cross-examination against the public's interest in effective prosecution. [Citations.] [¶] Defendant's interest and motive for cross-examining Inez Blanco during the preliminary hearing were sufficiently similar to those existing at trial so as to permit the admission of Blanco's preliminary hearing testimony. On both occasions, Blanco's testimony relating her contacts with defendant the day preceding the murder, defendant's need for money, and the disappearance of Blanco's automobile near the time of the murder, had the same tendency to establish defendant's guilt. Defendant's interest and motive in discrediting this testimony was identical at both proceedings. Defense counsel's testimony that he chose, for strategic considerations, not to vigorously cross-examine Blanco does not render her former testimony inadmissible. As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity. [Citations.]" (People v. Zapien, supra, 4 Cal.4th at p. 975; see also, People v. Smith (2003) 30 Cal.4th 581, 611-612; People v. Samayoa (1997) 15 Cal.4th 795, 849-852; People v. Jones (1998) 66 Cal.App.4th 760, 766-769; People v. Lepe (1997) 57 Cal.App.4th 977, 982-985 (Lepe), disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
As noted above, three substantive objections by the prosecution to defense counsel's preliminary hearing cross-examination of Green were sustained. They were to these questions: (1) "Do you know if Nicole [Fonseca] had any of her stuff located in room 135?" FN3; (2) "Do you know Andre Bryant?"; and (3) "Was that relationship [with Fonseca] based on the drug transactions?"
FN3. Green had testified earlier that she went to the Motel 7 to visit her aunt, who was in room 135.
Appellant argues that precluding defense counsel from getting answers to these questions prevented him from attacking Green's credibility as to, e.g., why she was at the motel at all, her denials that she was there looking for drugs, and her assertion that she did not know why appellant shot her. We disagree. First of all, the trial court was clearly correct in ruling that inquiries during the course of a preliminary hearing which are apparently motivated by a desire for discovery regarding tangential issues are inappropriate. This does not, however, preclude the use of preliminary hearing testimony at trial provided all of the other requirements of Evidence Code section 1291, subdivision (a)(2) are met. (See, e.g., Lepe, supra, 57 Cal.App.4th at pp. 982-985.)
Two of the questions to which objections were sustained (nos.(1) and (3) above) related to whether Green's relationship with Fonseca was connected with drugs.FN4 Appellant contends he should have been permitted to pursue this point to undermine Green's credibility. We are unpersuaded. The jury in this case was well-acquainted with the fact that Green was a regular drug user. She admitted during cross-examination in the preliminary hearing that, contrary to her answer to a question from the prosecutor a few minutes earlier, she was indeed in possession of some "tar heroin" on the day in question. In the actual trial, Lujan, the driver of the car in which Green was riding, admitted on her direct examination that Green had told Lujan she was "looking for . . . drugs" on the day in question. On cross-examination, Lujan admitted seeing Green use both heroin and "meth" that day. Additionally, two John Muir Medical Center doctors were, as noted above, called as defense witnesses. One testified that, after her admission there, Green admitted using both heroin and methamphetamine; the other testified that Green admitted using heroin.
FN4. The third question to which an objection was sustained ("Do you know Andre Bryant?") was clearly lacking in relevance, absent some offer of proof by defense counsel-or even a slight verbal hint to the court-as to who Bryant was, his possible connection with the events of July 5, or some other reason as to why Green's knowledge of him was at all relevant to the issue of who shot her.
Further, defense counsel's closing argument to the jury concentrated heavily on Green's credibility. He cited inconsistencies in her preliminary hearing testimony, her absence from the trial, and the possible impact on her powers of ...