FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on March 5, 2010 in the Sacramento County Superior Court on the charge of first degree murder with a lying in wait special circumstance along with a sentencing enhancement for intentional discharge of a firearm and causing great bodily injury to the victim.
Petitioner seeks federal habeas relief on the following grounds: (1) the evidence admitted at his trial was insufficient to support his conviction for murder while lying in wait; (2) the trial court violated his right to due process in admitting evidence of uncharged acts of domestic violence; (3) the trial court violated his right to due process in excluding from evidence statements he made in an application for a restraining order against one of his victims; (4) jury instruction error violated his right to due process; (5) the lying-in-wait special circumstance allegation was applied in an unconstitutionally vague and arbitrary manner; and (6) cumulative error at his trial violated his right to due process. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
Defendant Ronald Mitchell shot and killed Laprea Tyson, and shot and wounded Tyson's mother, Blanche Brisco, when the two women went to defendant's house to retrieve a skateboard defendant had taken from Blanche Brisco's 13 year-old son, Malik. There was evidence that defendant took the skateboard in order to lure Blanche Brisco, with whom he was having a relationship, to his house. After telling the women to wait by the front door because he had something to give Brisco, defendant opened his door and immediately began shooting.
A jury convicted defendant of the first degree murder of Laprea Tyson, and found as a special circumstance that he committed the murder while lying in wait. The jury also found true an enhancement to count one that defendant intentionally and personally discharged a firearm in the commission of the offense, causing great bodily injury to the victim. The trial court sentenced defendant to life without the possibility of parole for the murder with special circumstances, plus 25 years to life for the enhancement. The jury also convicted defendant of the attempted murder of Blanche Brisco, and found that he intentionally and personally discharged a firearm in the commission of the offense, causing great bodily injury to the victim. For this crime, the trial court sentenced defendant to a consecutive term of 14 years to life, plus 25 years to life for the firearm enhancement. Defendant thus received life without the possibility of parole, plus 64 years to life. He argues there was insufficient evidence to support the lying-in-wait special circumstance, the trial court erred in admitting evidence of his prior acts of domestic violence, the trial court erred in excluding prior consistent statements he made in an application for a restraining order, the jury instructions on the lying-in-wait special circumstance and contrived self defense were erroneous, the instruction regarding other domestic violence violated due process and jury trial standards, and the lying-in-wait special circumstance is unconstitutionally vague as applied to him.
We find no error and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND The shooting occurred shortly after midnight on July 16, 2008. Brisco had begun dating defendant a little over a year earlier. She was still married to Ken Frazier, but they had separated. Brisco and her family lived across the street from defendant. She had four children: 13 year-old Malik, 17 year-old Roosevelt, 18 year-old Andrea, and 20 year-old Laprea.
On the afternoon before the shooting, Brisco got off of work at 3:00 p.m. Defendant drove her home, and they sat around talking, listening to music, and playing cards on his front porch. They did not argue. Brisco went home around 5:00 or 6:00 p.m. Laprea and Frazier showed up a couple of hours later. Defendant was sitting on his front porch when the two walked up, and defendant said, "that nigger over there again." Brisco answered that he (Frazier) was visiting.
Around 8:00 or 9:00 p.m., defendant came over to Brisco's house, knocked on the door and tried to push his way in. He said he wanted to talk to Brisco. Laprea answered the door. She told defendant that Brisco did not want to be bothered. Defendant told her, "tell your mom to come across the street. I've got something for her."
Brisco sat up a while in her bedroom talking to Frazier. Brisco told Frazier that she did not want to "mess around" with defendant anymore because he was "doing too much stuff[.]" As she was telling Frazier this, she kept hearing something on the side of the house, and she thought defendant was listening in on their conversation, but she did not know for sure. She got up to check on the others in the house. Her sons, Roosevelt and Malik, and her niece and nephew were all asleep in the living room.
Brisco and Frazier kept talking, and eventually dozed off in the bedroom. Shortly after midnight, defendant knocked loudly on Brisco's front door and opened it. Defendant asked where Brisco was, and he was told she was in the bedroom. Everyone in the living room, including Laprea, told defendant to go home. Defendant kept yelling that he needed to talk to Brisco. Defendant said, "I could have killed all of you, mother fuckers." Defendant was belligerent, and told them to wake up Brisco, to tell the bitch to come to the door, and to tell her to come across the street because he had something for her. Defendant left, but he took with him a skateboard that belonged to Malik. Laprea asked defendant to give the skateboard back, but defendant said, No, tell your mother to come get it."
Laprea woke up her mother and told her what had happened. Both women went across the street to defendant's house. Laprea was ahead of her mother, and was already on defendant's porch when Brisco left the house. Dabyus, Brisco's nephew, went over with Brisco. He stayed on the bottom step, while Brisco and Laprea went up on the front porch. Laprea was holding a stick. She told defendant to open the damn door so she could get her brother's skateboard. Roosevelt went up to the porch to try to get Laprea to get off the porch.
Defendant's front door was open, but his security screen was closed. The women could see the skateboard inside the house. Brisco told defendant to open the door and give her the skateboard. Defendant said, "I'm going to open it, hold on, just a minute. I'm gonna open it, you gonna see, I'm going to open it." Brisco told him to quit playing and open the door. Defendant responded, "I'm going to show you, I'm going to open the door in a minute." He said, "Just wait, you'll see what is taking so long." Brisco estimated that they were outside trying to get defendant to open the door for 10 to 15 minutes, however Roosevelt thought defendant only went inside for about two minutes. Defendant kept telling Brisco that he was coming, and that he would be there in a minute. The next thing Brisco knew, the door opened and defendant started shooting. He shot Laprea in the head, and she fell to the ground. He shot Brisco, but she ran away, bleeding. Defendant fired the gun four or five times.
Laprea died of two gunshot wounds to the head. Brisco received a bullet wound to the right side of her chest. She suffered a significant amount of internal bleeding, and her surgeons were unable to remove the bullet.
Over defendant's objection, the trial court allowed several witnesses to testify to prior acts of violence committed by defendant.
Marietta Gray Gray married defendant in August 2000. She decided to get a divorce about four months later. When she told defendant she wanted a divorce, he went into a rage. On December 5, 2000, she was driving down Franklin Boulevard around 9:00 a.m., when defendant started chasing her in his car. He kept bumping her bumper, and he hit the side of her car. She drove a few blocks, jumped out of the car, and screamed that he was trying to kill her. Gray ran into a meat company, and defendant chased after her. By then, the police had arrived.
Williams lived across the street from defendant. She had witnessed arguments between defendant and Brisco. On one occasion before the shooting, she heard defendant tell Brisco, "I'll kill you bitch." She also saw defendant break Brisco's window. She could not remember what he said when he broke the window, but his tone of voice was mad.
Charles Brisco Charles is Blanche Brisco's brother. On August 20, 2007, Charles was at his sister's house when defendant came over to talk to Blanche Brisco. Defendant was angry at her because she owed him money. Charles Brisco told defendant he had to leave. Charles and Laprea were standing outside. Defendant got in his truck, drove to the corner of the block, then came back and tried to run over Charles Brisco and Laprea. A police officer happened to be driving by and saw the whole thing, but Charles did not want to press charges.
Zina Tarver Zina Tarver is Blanche Brisco's sister. In December 2007, defendant came to her home. She heard him screaming a bad word, and the windows in her car were broken. She filed a police report. One time defendant left a message on her answering machine saying he was a walking time bomb and that he was going to kill the whole family.
Blanche Brisco Brisco testified to several of defendant's prior acts of violence. She testified that the time he broke Tarver's car windows, she was at Tarver's house, and he came over and started calling her names. He drove off for about 10 minutes, then drove back and broke Tarver's car window. Although he denied breaking the window at the time, he later admitted doing it. Another time when she was at Tarver's, he left a message on the phone, saying he would "kill all you F'ing Briscos . . . and your blind ass momma."
Another time in July 2007, defendant wanted Brisco to go somewhere with him, but she did not want to go. He got angry, grabbed her throat, started choking her, and put her in a headlock. Laprea saw them, told defendant to let her mother go, then picked up a bike wheel and hit him in the mouth with it. The police were called on this occasion, but no one was arrested.
On another occasion, they got into an argument when Brisco would not do something defendant wanted her to do. He hit her in the mouth and knocked out a tooth. Another time he broke a window in her apartment when they got into an argument. Laprea broke out one of his windows in retaliation.
Defendant testified in his own defense. He admitted firing a revolver, but claimed it was in self defense. He claimed he was afraid for his life because there was a mob coming at his door with knives and sticks and a gun. (Opinion at 1-8.)
II. Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 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.*fn2
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (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.'"). "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." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S. Ct. 1088, 1091 (2013).
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 § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853.
Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
A. Sufficiency of the Evidence
Petitioner's first claim is that there was insufficient evidence introduced at his trial to support the lying in wait special circumstance finding by the jury in connection with the murder of Laprea Brisco. (Doc. No. 1 (hereinafter Pet.), at 6.) Specifically, petitioner argues that there was insufficient evidence of "any substantial period of watching and waiting for an opportunity to act." (Id.) He claims that he was "retrieving and/or loading" his gun in order to "enable him to shoot" while Blanche and Laprea were waiting outside his front door, and that this circumstance "does not fairly bespeak a substantial period of watching and waiting." (Id.)
The California Court of Appeal rejected petitioner's insufficiency of the evidence argument with respect to the lying in wait finding, reasoning as follows:
Defendant contends the evidence was insufficient to support the lying-in-wait special circumstance. An intentional murder must include: "'(1) a concealment of purpose, [and] (2) a substantial period of watching and waiting for an opportune time to act[.]'" (People v. Sims (1993) 5 Cal.4th 405, 432, quoting People v. Morales (1989) 48 Cal.3d 527, 557.) Prior to 2000, the special circumstance also required a finding that the attack occur immediately after the period of watching and waiting. However, Proposition 18, effective March 8, 2000, changed the wording of the special circumstance to require that the murder occur "by means of" lying-in-wait instead of "while" lying-in-wait. This "eliminate[d] the immediacy requirement that case law had placed on the special circumstance." (People v. Superior Court (Bradway) (2003) 105 Cal. App.4th 297, 307.) Defendant contends the second element, a substantial period of watching and waiting, was missing here.
Defendant argues this was merely an escalating situation, and defendant's delay before shooting was attributable to his retrieving and/or loading a weapon as the women approached. He argues that doing things to enable him to shoot does not establish a period of watching and waiting.
There is no precise period of time that a defendant must watch and wait for an opportunity to act in order to satisfy the second element. (People v. Moon (2005) 37 Cal.4th 1, 23.) The purpose of this element [sic] "is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse." (People v. Stevens (2007) 41 Cal.4th 182, 202.) The period of time need merely be long enough to show a state of mind equivalent to premeditation or deliberation. (Ibid.)
Defendant's actions show a substantial period of watching and waiting. After luring the victims to his door by taking Malik's skateboard and telling Laprea that Brisco would have to come get it, defendant then waited out of sight inside his house until Brisco was on his front porch, continually telling the victims to wait outside his door. He immediately started shooting when he came out of the door.
Whether the victims waited at the door for two minutes or 20 minutes, defendant was using subterfuge to get them and keep them in a vulnerable position until he could start shooting. This was clearly an act of deliberation, and there is no merit to defendant's claim that the evidence does not support a substantial period of watchful waiting.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a conviction if, "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." Coleman v. Johnson, ___ U.S. ___, 132 S. Ct. 2060, 2064 (2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "[T]he dispositive question under Jackson is 'whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). A reviewing court may set aside a jury verdict on the ground of insufficient evidence only if "no rational trier of the fact could have agreed with the jury." Cavazos v. Smith, 565 U.S. 1, ___, 132 S. Ct. 2, 4 (2011).
In conducting federal habeas review of an insufficiency of the evidence claim, all of the evidence must be considered "in the light most favorable to the prosecution." Johnson, 132 S. Ct. at 2064. See also Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). "A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to grant relief, the federal habeas court must find that the decision of the state court rejecting an insufficiency of the evidence claim reflected an objectively unreasonable application of Jackson and Winship to the facts of the case. Ngo, 651 F.3d at 1115; Juan H., 408 F.3d at 1275 & n.13. Thus, when a federal habeas court assesses a sufficiency of the evidence challenge to a state court conviction under AEDPA, "there is a double dose of deference that can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). The federal habeas court determines sufficiency of the evidence in reference to the "substantive elements of the criminal offense" as defined by state law. Jackson, 443 U.S. at 324 n.16; Chein, 373 F.3d at 983.
After reviewing the state court record in the light most favorable to the jury's verdict, this court concludes that there was sufficient evidence introduced at petitioner's trial from which a rational trier of fact could have found that the lying in wait special circumstance allegation was true. For the reasons explained by the California Court of Appeal, the evidence introduced at petitioner's trial was sufficient to support the jury finding under state law that petitioner committed the murder after a deliberate and substantial period of lying in wait. Petitioner's actions in luring the victims to his front door and then causing them to wait there for a sustained period of time while he prepared to shoot, fully supports the state court's finding that the evidence was sufficient for the jury to find that petitioner did not act out of impulse, but had time to premeditate and deliberate.
Petitioner has failed to show that the state courts' rejection of his insufficiency of the evidence argument was an objectively unreasonable application of the decisions in Jackson and Winship to the facts of this case. He has also failed to overcome the deference due to the state court's findings of fact and its analysis of this claim. Accordingly, petitioner is not entitled to federal habeas relief on ...