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Christopher Howard v. Raul Lopez

September 14, 2012



Petitioner, a state prisoner, proceeds pro se with a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. At issue are his 2004 convictions for robbery, burglary, and murder in the San Joaquin County Superior Court, case number SF087852B.


The California Court of Appeal, Third Appellate District, summarized the facts underlying the convictions at issue here. Petitioner is the defendant referred to herein:

The victims, Kevin and Sabrina Dahnke, were found shot to death in their home in Lodi. Two handguns, a .44 caliber and a .38 caliber, were involved in the incident.

Investigators were soon contacted by Scott F., who told them that defendants [Christopher Howard Jones and Joel Magana] might have been involved in the killings. Kevin was a known marijuana dealer. According to Scott, Kevin had threatened to "jack" a friend who also sold marijuana. Several people, including Scott and defendant Magana, had talked about making a preemtive move, and Magana said he could get guns.

The direct targets of the alleged "jack" soon dropped their plans, but Magana told Scott that he had obtained guns. A day or two later, Magana approached Scott to ask if he was interested in following through on the original plan. When Scott declined, Magana said he would "get [defendant] to do it with him." Magana and defendant were good friends who were "always together." They both worked the night shift at Wal-Mart.

Two days before the murder, Scott went to defendant's apartment and found defendant and Magana in a bedroom, looking at a .44 caliber and a .38 caliber handgun.

On the night of the murder, Magana called Scott and asked him to meet Magana outside. The two talked on the walkway between their apartments. Magana said he was "going to go shoot Kevin and Sabrina," and he showed Scott some potatoes that he said he was going to put on the barrel of the gun. Scott told him there was "no chance of just robbing them, that he was going to have to kill him. Magana responded, "[H]e's already dead."

During this conversation, defendant was sitting in the passenger's seat of Magana's car.

Magana told a friend that he and defendant were going to be going to work about one hour late.

Magana and defendant drove to the victims' home. At about 11:00 p.m., neighbors of the victims heard gunshots. They did not see anyone, but saw a car matching Magana's parked car in the victims' driveway.

Defendant and Magana drove to the home of defendant's sister in Pittsburgh, California. Her fiance had a reputation as a "gang banger" who sold drugs and arms. Magana called his employer from Pittsburgh and told him that he and defendant were going to be late due to car problems. Neither made it to work that night. Defendant and Magana eventually drove home.

The next morning, a neighbor discovered the victims' bodies. Kevin had been shot four or five times. Sabrina had been shot three times, including once at very close range. A piece of potato was found on the couch.

The same morning, Magana went over to Scott's apartment. Magana was limping and had a large bag of marijuana that he said he had gotten from Kevin. Scott noticed a small amount of blood behind Magana's ear.

Later that day, Scott contacted the police.

Officers arrested defendant and Magana. Testing revealed that both men had small amounts of gunshot residue on their hands. Large quantities of marijuana were found in defendant's apartment and that of Magana. Officers found clothing in a dumpster outside Magana's apartment complex. Bloodstains on a jacket matched Kevin's genetic profile; bloodstains on a pair of tennis shoes matched Sabrina's. This clothing had been worn by Magana. A bloodstain on the passenger's seat of Magana's car also matched Sabrina's genetic profile.

Defendant and Magana were both charged with two counts of murder, robbery, burglary, and conspiracy to commit these crimes. The information also alleged various firearm enhancements and special allegations.

The prosecution theorized that both defendants had been involved in the shootings, each using a different gun.

Defendant did not testify at trial but argued that he had not been involved in these events. Instead, he suggested that Magana had committed the crimes with Scott or the dealer Kevin was allegedly about to "jack."

Magana testified at trial and placed all responsibility for the murders on defendant. He denied shooting either Kevin or Sabrina, and said he had gone with defendant to Kevin's house simply to buy marijuana. He was taken completely by surprise when defendant pulled out a weapon and shot Kevin. He said Kevin lunged toward him and as the two grappled, Sabrina entered the room and threw something at Magana. The two men fell to the floor, and Magana heard several more gunshots.

Magana said he fled the scene and drove away, but came back for defendant, who then held a gun on him and ordered him to drive to Pittsburgh. Magana said he handled the guns when he got them out of the car.

People v. Jones, No. C048432, Respondent's Ex. A ("Ex. A") at 3-6.

A jury convicted petitioner of robbery, burglary, and two counts of murder, and found true various charged firearm enhancements and special circumstances. Ex. A at 1. The trial court sentenced him to state prison for an aggregate sentence of 56 years to life plus two consecutive life sentences without the possibility of parole. Id.

In an unpublished opinion on direct review, the California Court of Appeal, Third Appellate District, held that the trial court erred in failing to conduct the inquiry required under People v. Marsden, 2 Cal.3d 118 (1970)*fn1 and remanded the case to the trial court with directions to conduct a hearing allowing petitioner to explain the reasons why he requested the appointment of new counsel. Ex. A at 40. If good cause was shown, the trial court was to appoint new counsel and set the case for retrial; if good cause was not shown, the trial court was to reinstate the judgment. Id. The trial court held a Marsden hearing, concluded that petitioner did not show good cause for the appointment of new counsel, and reinstated the judgment. Respondent's Exhibit B ("Ex. B") at 2. Petitioner unsuccessfully appealed the denial of his Marsden motion to the California Court of Appeal. Ex. B. He presented two petitions for review to the California Supreme Court which were likewise denied. Lodged Documents ("LD") 6-7 and 13-14. The parties agree that petitioner has exhausted state court remedies on grounds presented.


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.

28 U.S.C. § 2254(d).

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). Under AEDPA, a state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Ybarra v. McDaniel, 656 F.3d 984, 989 (9th Cir. 2011).

II. Analysis of Petitioner's Claims A. Batson-Wheeler Motion

After the prosecutor excused T.M., the sole African-American prospective juror, petitioner objected pursuant to People v. Wheeler, 22 Cal.3d 258 (1978), that the peremptory challenge was improperly motivated by race. On appeal, the California Court of Appeal, Third District, found the following facts:

In her juror questionnaire, T.M. stated she was 33 years old and had an A.A. degree. She worked in hotel special services for Marriott Worldwide Reservations, performing a number of different duties. She responded "N/A" to q question asking whether she rented or owned her residence, and "N/A" to a question asking about the employment history of other adults with whom she resided.

T.M. had no opinions about criminal defense attorneys or prosecutors. She had no prior jury experience, and no law enforcement contacts. However, her brother had been convicted of a drug possession charge and had been placed on probation. T.M. was "unsure" of the details of this offense, but believed her brother was treated fairly. She did not think her brother's situation would have affected her judgment in this case.

T.M. agreed with the legal principles set forth in the questionnaire, and indicated she would apply the same standards for assessing witness credibility to peace officers and other witnesses. One question asked, "Do you believe that it is possible that a defendant charged with a crime might not tell the truth?" but T.M. left this question blank. However, in response to another question, she indicated that she believed that it was possible for any witness to tell the truth and yet lie under oath. She explained: "There are a number of reasons why I feel this way. I feel that there are some people who do not take the oath in a serious manner." She thought she was a good judge of credibility, noting that she was well rounded, well traveled, open minded, and experienced in dealing with many types of people.

In response to questioning by one defense attorney, T.M. said she "absolutely" could be fair, reiterating that she was well rounded and weighed everything out "as far as making any decisions." She said she would not give more weight to a police officer's testimony, and agreed that officers could make mistakes just like anyone else.

After asking general questions of the entire venire, the prosecutor followed up by asking T.M. about several of her responses. She had received three tickets for speeding and said she deserved them all. T.M. had testified in deposition and trial in a case she had brought against an employer after a "run-in." She said she had been confident about her case, but had been nervous reliving the experience and testifying in front of people she did not know.

T.M. affirmed that she could return a guilty verdict if the prosecutor met his burden of proof.

During the second round of peremptory challenges, the prosecutor exercised a peremptory challenge against T.M., and defense counsel objected, citing Wheeler.

At the ensuing hearing, the court noted that T.M. was the only black juror in the jury box, and found defendant had established a prima facie case of discrimination. The court asked the prosecutor to explain his challenge.

The prosecutor responded that he did not know T.M.'s ethnicity when he reviewed her questionnaire but some of her responses had given him concern. He noted that T.M. had responded "N/A" when asked whether she rented or owned her residence, which indicated to the prosecutor that T.M. "probably still lives with her parents and she is 31 [sic] years old. So I had concerns about taking grown-up responsibilities with that answer."

The prosecutor pointed out that T.M.'s brother had been convicted for drug possession, and this case involved drug use. He said he was concerned "about her ability to be fair based on her family history." He added that "after having that concern, I got to the packet on witness credibility where she didn't answer, if you believe it's possible the defendant charged with a crime might not tell the truth. And I didn't see any other questions that she had missed."

The prosecutor then added, "[L]astly, when we were asking her questions, she said that she had sued her employer and taken her case to trial. My feelings, this would cause her to have a natural empathy with people who want to take their cases all the way through trial. [¶] And probably more of anything, based on- based on that concern about her taking her own case in suing an employer and gong all the way through trial, I just didn't feel that she would be the best juror for my case."

Defense counsel responded to these explanations, but the trial court concluded that the prosecutor acted properly in excusing T.M. The court stated, "A peremptory challenge does not have to rise to the level of a challenge for cause. The question in a Wheeler motion is whether or not the challenge was made for racial reasons... [I]f a juror has a relative who's been arrested and convicted for other matters, that is a legitimate reason for the ...

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