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Camitt Doughton v. Warden Mcdonald

April 12, 2013

CAMITT DOUGHTON, PETITIONER,
v.
WARDEN MCDONALD, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 convictions for the following crimes: 1) Count 1: first degree murder in commission of a robbery, i.e. felony murder (Cal. Penal Code §§ 187(a), 211, 190(a)(17)); use of a firearm during the felony murder causing great bodily injury to Larry Elliott (Cal. Penal Code § 12022.53(d)); 2) Count 2: robbery of Larry Elliott in an inhabited dwelling (Cal. Penal Code § § 211, 213(a)(1)(A)); use of a firearm during the robbery causing great bodily injury to Larry Elliott (Cal. Penal Code § 12022.53(d)); 3) Count 3: robbery of Heidi Mackelvie in an inhabited dwelling (Cal. Penal Code § 211, 213(a)(1)(A)); use of a firearm during this robbery (Cal. Penal Code § 12022.53)); and 4) Count 4: possession of a firearm by a convicted felon (Cal. Penal Code § 12021(a)(1)). (Court Reporter's Transcript ("CT") at 573-76.)

For count one, petitioner was sentenced to life without the possibility of parole for the murder conviction plus 25 years for the firearm enhancement. (CT at 93-95.) Petitioner was sentenced to 6 years for count three, plus 10 years for the firearm enhancement. (Id.) Petitioner was sentenced to 2 years on count four. (Id.) The sentences for counts three and four were to run concurrent to his life sentence. (Id.) Petitioner's sentence on count two and its firearm enhancement was stayed. (Id.)

This action is proceeding on the amended petition filed June 1, 2012. (Dkt. No. 11.) Petitioner challenges his conviction on the following grounds: 1) denial of right to cross-examine an adverse witness; 2) jury instruction error (two claims); 3) impermissibly suggestive identification by witness; 4) ineffective assistance of counsel; 5) ineffective assistance of appellate counsel; and 6) insufficient evidence.

After carefully reviewing the record, the undersigned recommends that the petition be denied.

II. Standards for a Writ of Habeas Corpus

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 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

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, 405-06 (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.'") (internal citations omitted). "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, 131 S. Ct. 770, 786 (2011).

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). If there is no reasoned decision, "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." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "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)).

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "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 v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[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 this Court." Id. at 786.

III. Factual Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the undersigned finds this summary to be substantially accurate. With the inaccuracies noted below, the state appellate court's factual summary is adopted herein:

On the evening of December 9, 2004, Kobra Turner drove her boyfriend, Edward Quintanilla, to a Value Inn Motel in Sacramento. Doughton, [Deandre] Scott, and Danny Hampton arrived at the motel shortly thereafter. Approximately 15 minutes later, Quintanilla called Turner and asked her to give Scott a ride. Turner drove Scott to his house, where he spent a few minutes inside before being driven back to the Value Inn.

Later that evening, the four men set out from the motel in two cars, one driven by Scott and the other by Turner. The drivers parked their cars at a park near the home of Larry Elliott.

Elliott was expecting Hampton to come by to purchase marijuana. Hampton and Doughton told Scott and Quintanilla that they "were going up to the house and said they would call when they knew the guy was there."

A few minutes later, Quintanilla received a call on his cell phone. He said they would be "right there" and gave the phone to Turner. Quintanilla and Scott left their cars and walked into the park.

Hampton and Doughton found Elliott in his garage making music with James Willis and George Porter. Hampton and Doughton expressed interest in buying marijuana and smoked a sample at Elliott's invitation.

About seven minutes after Hampton and Doughton arrived, Quintanilla and Scott rushed into the garage wearing black ski masks. Doughton brandished a revolver.*fn1 Willis became scared and got down on the ground.

One of the assailants began hitting Elliot. Elliott yelled out, "Stop, ya'll are killing me." One of the masked men shouted, "[W]here's the money? Where's the weed? Where's the keys to [the] car?" Elliott responded that he did not have any money because he had just spent it on a truck. While Elliott was being beaten in an effort to obtain the location of his stash of drugs and money, the other assailants entered the house.

Elliott's girlfriend, Heidi Mackelvie, awoke from a nap to find a semi-automatic gun held to her head. Mackelvie also saw two masked men rummaging around the house. Mackelvie immediately complied with an order to lie on the floor. Mackelvie and Elliott had a one-year-old son who was sleeping in one of the bedrooms. She pleaded for her son to be left alone, and one of assailants responded that he would not bother the baby. Doughton repeatedly demanded that Mackelvie tell him "where the money is." Mackelvie retrieved $140 from her purse and handed it to him.

Mackelvie heard someone from the garage say, "If somebody doesn't tell me where the fuck the money is, somebody is gonna get popped." When the masked men left her alone for a moment, Mackelvie got up and ran to a neighbor's house to call the police.

In the garage, one of the assailants told Elliott that he was going to get shot if he said another word. Scott, Quintanilla, and Hampton left while Doughton remained in the garage. Willis heard Doughton say, "I told you not to look up." Willis then heard a gunshot. Doughton came up behind Willis and warned him not to say anything. Doughton left the garage and ran toward the park.

Elliot died of a gunshot wound to his head.

Turner had been waiting for about 20 minutes when Quintanilla and Scott came running toward the car. A few moments later, Hampton and Doughton also came running. Quintanilla got into Turner's car with a tall plastic bucket and said, "Go, go, go." Once in the car, Quintanilla asked, "Who capped him?" Both cars drove to Quintanilla's house, and they all went inside. A few hours later, Turner noticed that the other men had departed.

The next day, Doughton and Hampton showed up at the apartment of Brandi Cummings in Tracy, California. Hampton was carrying a small backpack inscribed with the name of Quintanilla's brother. Hampton left the next morning, but Doughton stayed with Cummings for several more days. Doughton and Hampton left the backpack behind. A subsequent search of the backpack by the police revealed items including several plastic bags containing marijuana packaged for sale. Doughton's fingerprint was on one of the bags.

On December 12, 2004, Quintanilla traveled by bus to La Grande, Oregon. Turner followed him a few days later. After Quintanilla told Turner what had happened at Elliott's house, Turner convinced him to surrender to the police. Doughton and Hampton were arrested in Sacramento, California, on December 17, 2004. Scott was arrested in Phoenix, Arizona, on February 3, 2006. Scott did not have permission to be in Arizona. (Respondent's Lodged Document 18 at 2-5.)

IV. Discussion A. Claim 1: Denial of Right to Cross-Examine Witness

Petitioner alleges that he was denied his right to cross-examine prosecution witness James Willis regarding his previous involvement in a shooting incident. Petitioner alleges that the trial court's order to exclude evidence of the shooting evidence violated his Sixth Amendment right to confront adverse witnesses. On appeal, the California Court of Appeal denied this claim for the reasons stated herein:

Doughton contends the trial court abused its discretion in excluding evidence that Willis was involved in a shooting accident prior to the fatal shooting in this case. We disagree.

A Willis testified that he heard a gunshot immediately after Doughton said to Elliott, "I told you not to look up." Doughton then came up behind Willis and threatened, "Don't tell nobody." Willis looked up to see Doughton running away and a pool of blood on the garage floor. With a surge of adrenaline, Willis "just ran."

When the prosecutor asked why he ran, Willis responded: "I never really seen nothing like that, so, kind of shocking. So I just-just ran."

During cross-examination, Doughton's counsel sought to cast Willis as another accomplice to the robberies. Defense counsel also returned to the question of why Willis ran away: "Q. You indicated that you were pretty upset because you didn't know what to do, so you ran off because nothing like this had ever happened before, is that right?

"A. [by Willis] Yes. "Q. You'd never experienced anything like this before? "A. Yes. "Q. Never experienced any gunplay before? "A. Not like that. "Q. Not like that? "A. To the resulting in death or major injuries. "Q. So that, of course, excludes the time you got shot in the ankle on October 3rd, 2003? "[The prosecutor]: Objection, your Honor, objection, relevance. "THE COURT: Sustained."

Later, outside the presence of the jury, the trial court held an Evidence Code section 402 hearing. FN2 During the hearing, Willis testified that he had been shot in October 2003 by a female cousin. His cousins had gotten into an argument that escalated in tension. When Willis tried to break up the fight, he got caught in the crossfire and was accidentally shot in the ankle. Willis explained that the 2003 shooting was not "as dramatic" as Elliott's murder because he was "just an innocent bystander" who got caught in the line of fire.

FN2. Subdivision (b) of Evidence Code section 402 provides, "The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests."

Doughton's counsel sought to introduce evidence of the 2003 shooting to show that Willis was naturally calm around gunshots and his reason for running after Elliott's death was due to Willis's role as an accomplice. The trial court rejected the argument and excluded the testimony. The court explained: "I'm not going to allow the evidence nor the questioning regarding that October '03 incident in which Mr. Willis indicated he was shot in the ankle. I do not see the probative value whatsoever. It's not connected to anything involving this case. It's not connected to any of the parties in this case. It's not connected to Mr. Hampton. It's not connected to the decedent, nor his girlfriend, nor [Porter]. It has nothing to do with the drugs. It has nothing to do with the sales of drugs. [¶] It appears to be just a random act, as the testimony indicated, in which Mr. Willis was shot when he appeared at a scene involving girl cousins fighting. So I do not see the probative value. So I'll disallow any evidence on that."

B

A trial court's exclusion of evidence offered for impeachment is reviewed for abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 705.) On this point, we have explained the "abuse of discretion standard requires the reviewing court to uphold the exclusion of evidence unless the reviewing court finds the trial court acted arbitrarily, capriciously, or in a patently absurd manner and that the exclusion of the evidence resulted in a manifest miscarriage of justice." (People v. Foss (2007) 155 Cal.App.4th 113, 125; see also People v. Ledesma, supra, at p. 705)

We find no abuse of discretion in the trial court's exclusion of evidence regarding Willis's involvement in the 2003 shooting. The 2003 shooting was unrelated to the shooting of Elliott. The accidental nature of the 2003 shooting stands in contrast to the deliberate taking of Elliott's life. Willis's statement that he ran after seeing a pool of blood on the garage floor would not have been undermined by the fact that he did not panic after being accidentally shot in the ankle by a family member. The trial court did not err in determining evidence of the 2003 shooting to be nonprobative in this case.

C Even if the trial court had erred in excluding the evidence of the 2003 shooting, we would affirm nonetheless. Willis's testimony was not necessary to prove that Elliott was murdered by a gunshot to his head. Willis's testimony was also not necessary to prove Doughton was one of the robbers. Both Turner and Mackelvie identified Doughton as one of the robbers. Mackelvie, in particular, expressed confidence in her identification of Doughton as the one who put a gun to her head. Although Willis's testimony painted a more complete picture of the tragic events in Elliott's garage, it was corroborated as to the robbery by Turner and Mackelvie and as to the murder by the forensic pathologist. Although Doughton seeks to cast doubt on the strength of the testimony by Turner and Mackelvie, we do not reweigh the evidence on appeal. (People v. Hatch (2000) 22 Cal.4th 260, 272 .) Viewed in a light most favorable to the judgment, the evidence adduced at trial sufficed to convict Doughton even if his counsel had succeeded in entirely discrediting Willis. Even if the trial court had erred in excluding evidence of the 2003 shooting involving Willis, the absence of the error would not have yielded a result more favorable to Doughton. (People v. Watson (1956) 46 Cal.2d 818, 836.) (Respondent's Lodged Document No. 18 at 5-9.)

Standard for Review of State Court Opinion

On habeas review, the federal court "look[s] to the last reasoned decision of the state court as the basis of the state court's judgment." Womack v. Del Papa, 497 F.3d 998, 1002 (9th Cir. 2007). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Merolillo v. Yates, 663 F.3d 444, 453 (9th Cir. 2011), quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

The California Supreme Court denied petitioner's petition for review without comment or citation. (Respondent's Lodged Document No. 20.) Accordingly, the undersigned "looks through" the California Supreme Court's summary denial of the petition for review and examines the California Court of Appeal's opinion, the last reasoned state court opinion.

The California Court of Appeal did not address the merits of petitioner's Sixth Amendment claim in its reasoned opinion. "When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits -- but the presumption can in some limited circumstances be rebutted." Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013). When the state precedent incorporates the related constitutional right, then the presumption that the state court adjudicated the federal claim is not rebuttable. Id. at 1094-95.

In the instant case, the California standard for evaluating the exclusion of evidence offered to impeach a prosecution witness is very close to the federal standard for evaluating whether the exclusion of impeachment evidence violated the Confrontation Clause. Both standards involve consideration of the relevancy of the excluded evidence and whether "legitimate interests" weigh in favor of exclusion. See People v. Ledesma, 39 Cal.4th 641, 705 (2006), citing Delaware v. Van Arsdall, 475 U.S. 673, 679-80 (1986); People v. Rodriguez, 20 Cal.4th 1, 9-10 (1999); Wood v. Alaska, 957 F.2d 1544, 1549--50 (9th Cir. 1992) citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Accordingly, the undersigned presumes that the California Court of Appeal considered petitioner's federal claim.

A federal court lacking a written opinion from a state court addressing the merits of a federal claim undertakes an independent review of the record. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); see also Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)

("Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law.") Nonetheless, the federal court must "still defer to the state court's ultimate decision." Pirtle, 313 F.3d at 1167. Thus, the undersigned conducts an independent review of petitioner's Sixth Amendment claim giving deference to the denial of this claim by the state courts. See Delgado, 223 F.3d at 982.

Analysis

The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to cross-examine adverse witnesses in order to test their credibility and the truth of their testimony. Davis v. Alaska, 415 U.S. 308, 315--16 (1974). Therefore, under some circumstances, restrictions on the scope of a defense attorney's cross-examination of a prosecution witness may violate the defendant's right to confront witnesses. Delaware v. Fensterer, 474 U.S. 15, 18--19 (1985). Similarly, a defendant has the right under the Due Process Clause to call witnesses on his own behalf, and the exclusion of a witness whose testimony possesses impeachment value may violate that right. Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003). The Constitution, however, does not guarantee a defendant the right to impeach a witness in whatever way and to whatever extent he or she wishes. Fensterer, 474 U.S. at 20. Trial judges retain wide latitude to impose reasonable limits on impeachment based on concerns about, among other things, harassment, prejudice, confusion of the issues, repetition, or marginal relevance. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992). All that the Constitution demands is substantial compliance with the purpose behind the confrontation requirement-that is, that the prosecution's evidence be subjected to rigorous testing before the trier of fact. Walters v. McCormick, 122 F.3d 1172, 1176 (9th Cir. 1997).

In determining whether petitioner's confrontation rights were violated, the court conducts a two-part inquiry. See Wood v. Alaska, 957 F.2d 1544, 1549--50 (9th Cir. 1992).

First, the court considers whether the excluded evidence is relevant. If the excluded evidence is not relevant, there is no constitutional violation. If the excluded evidence is relevant, the court then considers whether other legitimate interests outweigh the defendant's interest. See Wood, 957 F.2d at 1550. Further, if a constitutional error occurred, habeas relief is warranted only if such error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

The undersigned has reviewed the portion of the transcript where the trial court conducted the hearing pursuant to California Evidence Code § 402 to determine the relevancy of Willis's involvement in the previous shooting. (Reporter's Transcript ("RT") at 786-97.) The trial court ruled that the evidence regarding the October 2003 shooting where Willis was shot in the ankle had no "probative value whatsoever." (Id. at 798.) As noted by the California Court of Appeal, the trial court ruled that the shooting was not connected to any of the parties in petitioner's case and had nothing to do with drugs. (Id. at 798-99.) The trial court ruled that the October 2003 shooting was a random act where Willis was shot when he appeared at a scene where his girl cousins were fighting. (Id.)

In his direct appeal in state court, petitioner argued that evidence of the October 2003 shooting was relevant because it tended to contradict Willis's claim that in December 2004, i.e., during the robbery and murder of Larry Elliott, he ran away because he had never experienced gun violence like that before. (Respondent's Lodged Document 15 at 9.) As noted by the trial court, the October 2003 incident was different from the shooting involved at petitioner's trial. The October 2003 shooting was a random act which occurred when his girl cousins were fighting. Because of the differences in the shootings, evidence of the October 2003 shooting would not have impeached Willis's testimony that he ran away after Elliot was shot because he had never experienced gun violence like that before.

In his direct appeal in state court, petitioner also argued that evidence of the October 2003 shooting was relevant because it impeached Willis "by contrast." (Id.) Petitioner argued that at the 402 hearing, Willis testified that at the time of the October 2003 shooting, he was outside when someone came up to him and told him that his female cousins were fighting around the corner. (Id.) Willis testified that he walked up to the crowd and ordered his cousins home. (Id.) As they were leaving, Willis turned around and looked to see what was going on. (Id.) That moment is when guns were pulled out and he got shot. (Id.) Willis ran after he was shot because he was trying to get help for his foot. (Id.)

In his direct appeal, petitioner argued that in the October 2003 incident, Willis showed a "steadiness in a volatile situation when he confronted the crowd. This gave way to flight only in the face of actual gun danger." (Id.) Petitioner argued that yet on December 9, 2004, when all the gun danger dissipated, Willis fled, failing to help his friends or the police under less threatening circumstances. (Id. at 9-10.) Petitioner argued that evidence that Willis ran away after the "less threatening" 2004 shooting incident supported a defense theory that Willis was an accomplice.

Petitioner's argument that the 2003 shooting incident constitutes impeachment "by contrast" is a stretch. Petitioner's characterization of the circumstances of the 2004 shooting incident as "less threatening" than the 2003 shooting incident is not persuasive. The 2003 shooting did not involve a robbery where someone was intentionally shot in the head. Petitioner's argument that the 2003 shooting was impeachment by "contrast" is not supported by the record.

For the reasons stated by the California Court of Appeal addressing petitioner's related state law claim, the undersigned finds that evidence of the of the 2003 shooting was unrelated to the shooting at issue in petitioner's trial. Because this excluded evidence was not relevant, no constitutional violation occurred. Accordingly, after conducting an independent review of the record, the undersigned finds that the denial of petitioner's Sixth Amendment claim by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority.

B. Claims 2 and 3: Jury Instruction Error

Legal Standard for Jury Instruction Error A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71--72 (1991). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle, 502 U.S. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("'[I]t must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some [constitutional right].'"). However, the defined category of infractions that violate the fundamental fairness inherent in due process is very narrow: "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Estelle, 502 U.S. at 73.

A habeas petitioner is not entitled to relief unless the instructional error "'had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other words, state prisoners seeking federal habeas relief may obtain plenary review of constitutional claims of trial error, but are not entitled to habeas relief unless the error resulted in "actual prejudice." Id. (citation omitted).

Instruction Regarding Flight

Petitioner argues that the trial court erred by giving an instruction regarding flight. The California Court of Appeal denied this claim for the reasons stated herein:

Defendants contend the trial court erred in instructing the jury with CALCRIM No. 372 regarding flight. Scott argues that there was no substantial evidence to support the giving of the instruction. Doughton contends the instruction "is argumentative, casting the evidence in the light most prejudicial to the defendant, and thereby denying due process...." We reject the contentions.

A

During the jury instruction conference, the prosecution requested a flight instruction on grounds that it was required by section 1127c. FN3 Over objection by Scott and Doughton, the trial court gave CALCRIM No. 372 as follows:

FN3. Section 1127c provides: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given." "If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."

B The California Supreme Court has "construed section 1127c 'as mandating a rule that if there is evidence identifying the person who fled as the defendant, and if such evidence is relied on as tending to show guilt, then a flight instruction is proper.' (People v. Roberts (1992) 2 Cal.4th 271, 310.) 'A flight instruction is proper whenever evidence of the circumstances of [a] defendant's departure from the crime scene ... logically permits an inference that his movement was motivated by guilty knowledge.' (People v. Turner [ (1990) ] 50 Cal.3d [668,] 694.)" (People v. Abilez (2007) 41 Cal.4th 472, 521-522.) **** C Doughton acknowledges, "it is futile to argue that his excursion to Tracy did not support a flight instruction in the instant case." Nonetheless, he argues CALCRIM No. 372 violated his due process right to a fair trial. Specifically, Doughton contends the instruction violates a defendant's right to due process by emphasizing evidence of flight. We disagree.

In allowing a permissible inference of consciousness of guilt from evidence of flight, CALCRIM No. 372 does not give undue weight to evidence of flight. In People v. Mendoza(2000) 24 Cal.4th 130, at page 180, the California Supreme Court held "A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." Thus, allowing "a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt" does not violate due process. (Ibid.; see also People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157-1158.) Moreover, as the Attorney General points out, even if the jury relied on CALCRIM No. 372 to infer consciousness of guilt, the instruction cautioned that evidence of flight alone failed to support a conviction.

The jury was also instructed with CALCRIM No. 200. In pertinent part, the instruction states: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give you a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." Thus, the jury was not required to find that defendant fled or that his flight proved consciousness of guilt.

The jury was properly instructed on the permissible inference that, if jurors found evidence of flight, they could infer consciousness of guilt. Accordingly, we reject Doughton's due process challenge to CALCRIM No. 372. (Respondent's Lodged Document 18 at 10-14).

The California Court of Appeal was the last state court to issue a written opinion addressing this claim. While the California Court of Appeal cited no federal law in analyzing petitioner's due process claim, it cited People v. Mendoza, 24 Cal.4th 130 (2000). In Mendoza, the California Supreme Court applied federal law in determining whether the flight instruction contained a permissive inference of consciousness of guilt. See Mendoza, 24 Cal.3d at 180 (cases cited therein).

The citation to Mendoza indicates that the California Court of Appeal considered the merits of petitioner's federal claim challenging the flight instruction. Although the California Court of Appeal did not analyze the federal claim in its reasoned opinion, the undersigned conducts an independent review of the record, giving deference to the denial of this claim by the state courts. See Delgado, 223 F.3d at 982.

CALCRIM No. 372 expressly provided that evidence of flight was not, by itself, sufficient to support a finding of guilt. (See Supplemental Clerk's Transcript at 36.) Thus, contrary to petitioner's contention, this instruction did not create an impermissible mandatory presumption regarding consciousness of guilt; nor did it relieve the prosecution of its burden of proving every element of the crimes at issue beyond a reasonable doubt. See Francis v. Franklin, 471 U.S. 307, 314--15 (1985) (permissive instructions do not violate due process if suggestive inference is supported by reason and common sense in light of facts presented).

After independently reviewing the record, the undersigned finds that the denial of this claim by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

Instruction Regarding Reasonable Doubt

Petitioner challenges the jury instruction regarding reasonable doubt, CALCRIM No. 220. (See Supplemental Clerk's Transcript at 15.) The California Court of Appeal rejected this claim for the reasons stated herein:

The trial court instructed the jury with CALCRIM No. 220 as follows: "The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because he [ sic ] has been arrested, is in custody, charged with a crime, or brought to trial.

A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, he [ ...


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