ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner, proceeds pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue are his 2007 convictions on charges of murder during the commission of a robbery with use of a car as a deadly weapon, robbery, and taking and driving a vehicle which was the personal property of another person. For these offenses, the trial court sentenced petitioner to life in prison without the possibility of parole.
Stephan Elaine Brophy lived in a condominium owned by her mother. Two of her adult children, Tristan and Kendrick Holliday, lived with her. The condominium had three bedrooms, but Kendrick usually slept in the living room. The bottom floor had a sliding glass door that opened to a patio. The patio was surrounded by a six-foot fence. A gate in the fence led to the parking lot.
The condo had two designated parking spaces, one of which was covered. Both Tristan and Kendrick had cars. Brophy did not own a car, but sometimes used Tristan's car; she did not use Kendrick's car. Kendrick usually parked in the shaded spot. At the time of the crime, Brophy was using Tristan's car and had parked in the shaded spot, which she preferred, so Kendrick parked in the second, or guest, spot.
Kendrick owned a Toyota Tercel. He bought the car for $2,400 in cash. His mother and grandparents helped him pay for it. The car had recently been stolen and vandalized. Minors had taken it for a joy ride and trashed it. The steering column had been damaged and Kendrick used a screwdriver to start the car. The locks were difficult to work so he did not lock it.
The car was registered in Kendrick's name. His mother was listed on the insurance "just in case," but she never drove it. She borrowed the car once or twice but was afraid to tell her son because the car was hard to drive and he would worry. Kendrick let his sister drive the car once when she was learning to drive a stick shift, but for the most part, only he drove it.
On the morning of July 10, 2005, Tristan was out of town visiting her father and Kendrick was asleep in the living room. Neighbors heard voices in the parking lot. They heard a woman yelling, "get out of that car," and then screeching tires.
When police arrived, Brophy was on her back in the center of the parking lot. A gelatin-like fluid was coming out of her right ear and there was a tire mark across her torso. There was a skid mark in the street.
That morning J.B. was leaving the Beverages and More Store on Sunrise Boulevard when he saw a light colored Tercel speed down the road and make an illegal U-turn. He had just picked up his daughter from a nearby hospital and she mentioned someone was brought in with a broken skull. He thought the speeder might be connected to that, so he contacted the police. J.B. identified defendant as the driver and had selected his picture from a lineup.
The Tercel was found shortly after noon in the North Highlands area. CSI processed the car and found defendant's palm print on the driver's window.
T.E., a convicted felon with a long criminal history, testified someone named Curtis came to the apartment where he was staying. Curtis said he was trying to steal some lady's car and he ran over her because she tried to stop him. T.E. was in jail facing a drug felony with two strikes. The charge was reduced to a misdemeanor. The parties stipulated T.E. received no consideration for his statement or testimony.
Mark Super, a forensic pathologist, performed an autopsy on Brophy. She was five-foot six-inches tall and weighed 264 pounds. She had a large abrasion on the back of her head and a fractured skull. She had subdural hematoma, bruising over her body, and a fractured right ankle. The cause of death was blunt force head, thoracic and right leg injuries. The injuries were consistent with being run over. The most significant injury medically was to the head.
David Dowty, a member of the California Highway Patrol Multi-Disciplinary Accident Investigation Team and a certified expert in collision reconstruction, gave an opinion as to what happened. In his opinion, Brophy was behind the car when it backed up and hit her. She fell to the ground, striking her head, and the car ran over her. Based on the skid marks, Dowty believed the car had accelerated rapidly. The driver would have been able to feel the impact.
In 2000, Officer Jason Warren stopped defendant when he was speeding. The car he was driving was stolen.*fn2 Defendant pleaded guilty to vehicle theft.
I. Standards for a Writ of Habeas Corpus
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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas 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. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
A. CALCRIM No. 521 and Adequacy of Record of Jury Instructions Petitioner challenges the adequacy of the trial record as to the exact jury instructions given. He further claims the existence of a discrepancy as to whether the word "AND" was omitted from CALCRIM No. 521 requires reversal. The California Court of Appeal set forth the applicable background to this claim:
After closing arguments, copies of the written jury instructions were distributed to the jurors. The court began to read the instructions. After a few instructions were read, the court stopped and called for a sidebar. After the unreported discussion, the court asked the parties to stipulate that the court reporter need not transcribe the instructions. The parties agreed and the remaining instructions were read off the record.
The clerk's transcript on appeal contains a set of written instructions labeled "Jury Instructions Given." These instructions begin with Judicial Council of California Criminal Jury Instructions (2006--2007) (CALCRIM) No. 200, on the duties of judge and jury, and continues through CALCRIM No. 3590, the final instruction on discharge of jury.
The record contains two versions of CALCRIM No. 521 on degrees of murder. The first version is titled: "521. People's Pinpoint-Murder: Degrees[.]" This instruction explains defendant is being prosecuted for first degree murder under two theories: willful, deliberate, and premeditated murder, and felony murder in the commission of a robbery. For murder during the commission of a robbery, the instruction provides: "To prove that the defendant is guilty of first degree murder under this theory, the People must prove; [¶] 1. That the defendant committed robbery; [¶] 2. That the defendant intended to commit robbery; [¶] AND[.]" At this point the instruction ends.
The next page is another version of CALCRIM No. 521. The heading on this instruction reads: "This instruction was drafted by the People. The defense objected to the title of 'People's Pinpoint' going to the jury, so the following heading was given to the jury in their packet. [¶] 521. Court's Instruction-Murder: Degrees[.]" The remainder of this instruction is the same as the previous page, except the word "AND" is missing. On page 197 is the remainder of the instruction, beginning with: "3. That while committing robbery, the defendant did an act that caused the death of another person."
As noted above, this set of jury instructions includes the final instruction to be given upon discharge of the jury, CALCRIM No. 3590, as well as an instruction to the alternate jurors. Presumably, these instructions were not given to the jury when they began deliberations.
On August 2, 2007, appellate counsel wrote the superior court asking to augment the record to include the packet of instructions actually provided to the jury. The court clerk declared the instructions in the file were the official set and the only saved set. Appellate counsel then moved to settle the record, pointing out the problems, noted above, with the set of instructions in the clerk's record.
The motion was granted. The trial court was ordered "to hold a hearing forthwith to provide a verbatim record of the oral instructions provided to the jury and a reliable exact duplicate of the written instructions viewed by the jurors."
The trial court held a hearing; present were the judge who presided at trial, the court clerk, defense counsel David Muller, and Robert Gold from the district attorney's office. The assistant district attorney who tried the case, Mark Curry, was not present; he had been appointed to a ...