United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS; ORDER
GREGORY G. HOLLOWS, Magistrate Judge.
INTRODUCTION AND SUMMARY
Petitioner is a state prisoner proceeding, through appointed counsel, with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of failing to update his annual sexual offender registration with two prior strikes and was sentenced to a prison term of 28 years to life in the Placer County Superior Court. Petitioner challenges his conviction and sentence on the following grounds: 1) due process violation by the trial court in instructing the jury that forgetting to register by itself was not a defense; 2) ineffective assistance of counsel for failure to obtain a pre-guilt phase psychological evaluation of petitioner, failure to obtain a post-trial psychological report, and failure to present evidence of petitioner's mental health problems during the guilt phase; 3) violation of Sixth Amendment right to counsel when the trial court failed to conduct a Marsden hearing and appoint him new counsel; 4) due process violation by the trial court in failing to dismiss petitioner's prior strikes; and 5) the 28-year-to-life sentence is grossly disproportionate to the offense and violates the Eighth Amendment's prohibition on cruel and unusual punishment.
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In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
Defendant was charged with failing to register as a sex offender within five working days of his birthday. The pattern instruction for that offense sets forth four elements the People must prove, as follows: (1) defendant had been convicted of a sex offense requiring registration; (2) defendant lived at a particular address; (3) defendant knew he had a duty to register within five working days of his birthday; and (4) defendant willfully failed to register. (CALCRIM No. 1170.)
Defendant had been a sex offender registrant for many years, registered many times, and twice before was convicted of registration violations. For tactical reasons, the defense stipulated he had been convicted of a felony sex offense requiring registration, and that he lived at an address on Main Street in Roseville. This left two jury issues, whether or not defendant actually knew he had to register, and whether his failure to do so was willful.
Defendant was born on March 20, 1965. Roseville police officers Rick Fox and Jude Chabot spoke to him at his Main Street apartment on April 14, 2010. On April 27, 2010, they arrested him. He told the officers he forgot to register and was waiting for the police to send him a reminder notice.
A police department analyst described how the registration records were kept, and testified all registrations are done in person. At every registration, the registrant is advised of the duty to re-register each year within five working days of his (or her) birthday, and the form has a line so stating, which the registrant must initial before signing the form. Defendant had registered four times in Roseville, once as an incoming registrant, once as an annual renewer in 2006, once due to a return to the area, and finally, on April 2, 2009, when he moved to Main Street. Each of the four clerks who assisted defendant to register in Roseville testified and identified the forms he filled out. Two clerks did not remember him. One testified he was coherent and responsive. The last clerk, who registered defendant when he moved to Main Street in 2009, testified she did not recall anything unusual in his behavior or questions.
A Department of Justice analyst identified defendant's statewide registration file, which indicated he did not register after 2009. The file reflected registrations dating back to 1986, and that defendant registered at "CDC, " the former California Department of Corrections, on October 13, 2002, registered at Atascadero State Hospital on September 24, 2003, then again registered at CDC on February 13, 2004. Thus, it shows defendant was in the hospital for a period of about five months; this five-month period was seven years before the instant offense.
Defendant was convicted in 2002 of failing to register, and the jury was instructed this fact could be used to show he knew of his duty to register.
Defendant presented no evidence.
The People argued defendant knew he had a duty to register because he had a prior conviction for failing to register, and had registered many times in the past, including three times as annual renewals after his birthday, and that he had initialed and signed multiple forms reflecting this duty. Willfulness was shown because he knew he had to register, was able to register, but failed to register, and a person cannot "just sit back, not register, and simply claim that it wasn't willful." "[F]orgetting is simply not a defense."
Defense counsel effectively conceded defendant had knowledge of the registration requirement, and in fact emphasized that he had a history of registering, but also pointed to evidence in the exhibits showing defendant had spent time in Atascadero State Hospital, and argued there was a reasonable doubt about whether the fact he did not register this time was willful, or due to a mental health problem leading him to forget, as defendant had told the officers.
When the prosecutor began to counter the defense argument by pointing out the lack of evidence of defendant's mental problems, defense counsel objected.
Outside the presence of the jury, the court overruled the objection, stating "you did argue to the jury that or infer that your client has mental health issues, yet you didn't present any evidence of that for the jury. So I feel that the People can comment on the fact that the defendant never... produced any evidence to demonstrate any mental health issues."
When rebuttal resumed, the prosecutor emphasized the meager evidence of mental health issues, consisting of the fact that about seven years ago defendant was in a state hospital, and emphasized that defendant did not act crazily when questioned by the police, but instead claimed he simply forgot. The prosecutor did not argue evidence of a mental problem could never negate willfulness or actual knowledge.
People v. Holsey, 2012 WL 4857576, at **1-2 (Cal.Ct.App. Oct. 15, 2012).
After petitioner's judgment of conviction was affirmed by the California Court of Appeal, he filed a petition for review in the California Supreme Court. (Resp't's Lod. Doc. 8.) The Supreme Court summarily denied that petition without comment or citation by order dated December 19, 2012. (Resp't's Lod. Doc. 9.)
I. AEDPA Standards
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
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.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been adjudicated on the merits.'" Harrington v. Richter , 131 S.Ct. 770, 785 (2011). Rather, "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." Id. at 784-785, citing Harris v. Reed , 489 U.S. 255, 265, 109 S.Ct. 1038 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington , 131 S.Ct. at 785, citing Williams v. Taylor , 529 U.S. 362, 410, 120 S.Ct. 1495 (2000). "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." Id. at 786, citing Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140 (2004).
Accordingly, "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 . "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id . Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[, ]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade , 538 U.S. 63, 75, 123 S.Ct. 1166 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) - i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins , 546 U.S. 333, 338, 126 S.Ct. 969, 974 (2006).
The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti , 537 U.S. 19, 123 S.Ct. 357 (2002). Specifically, the petitioner "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." Harrington , 131 S.Ct. at 786-87. "Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten , 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin , 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer , 537 U.S. 3, 9, 123 S.Ct. 362, 366 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early , 537 U.S. at 8, 123 S.Ct. at 365. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "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).
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). However, if the state courts have not adjudicated the merits of the federal issue, no AEDPA deference is given; the issue is reviewed de novo under general principles of federal law. Stanley v. Cullen , 633 F.3d 852, 860 (9th Cir. 2012).
II. "Willfulness" Instruction
At trial, the prosecution moved in limine to have the jury instructed that forgetting to register by itself was not a defense to failing to annually update petitioner's registration. The trial court agreed but stated this did not preclude the defense from presenting evidence of substantial mental impairment or other reasons that might have impaired his memory. Petitioner's trial counsel objected that the instruction "has a tendency to misdirect the jury away from the willful definition." The prosecution acknowledged that California law allowed a defense based on such a deteriorating cognitive ability that a person cannot comply with the registration requirements. Resp't's Lod. Doc. 7 at 7.
The trial court instructed the jury with a modified version of CALCRIM NO. 1170, stating the People had to prove defendant "actually knew" he had a duty to register and "willfully failed to annually update his registration" within five working days of his birthday, stating that wilfully meant "willingly or on purpose, " and stating, "[f]orgetting to register by itself is not a defense to a charge of willful failure to register." Resp't's Lod. Doc. 7 at 8.
Petitioner claims that the trial court erred by giving the above-described, modified version of CALCRIM NO. 1170 to the jury. Petitioner argues that this instruction: 1) misstated California law because People v. Barker , 24 Cal.4th 345 (2004) and People v. Sorden , 36 Cal.4th 65 (2005) expressly left undecided whether forgetfulness resulting from a psychological condition might negate the willfulness element in a Section 290 violation; and 2) allowed jurors to find petitioner guilty even if they believed he forgot to register due to his mental impairments, thereby removing an element of the offense that the prosecution had to prove beyond a reasonable doubt.
The California Court of Appeal rejected petitioner's claim reasoning as follows:
A defendant must have actual knowledge of the sex offender registration duties before he or she can be found guilty of having willfully violated them. ( People v. Garcia (2001) 25 Cal.4th 744 , 752.) In People v. Barker (2004) 34 Cal.4th 345 (Barker) , Barker claimed he forgot to register, and therefore did not have the requisite actual knowledge. The California Supreme Court disagreed: "Admittedly, the argument that a person cannot be said to know something if he or she has forgotten it, for whatever reason, does have a superficial plausibility. However, ... [i]t is simply inconceivable the Legislature intended just forgetting to be a sufficient excuse for failing to comply with section 290's registration requirements." ( Barker, supra , 34 Cal.4th at pp. 356-357.) "[C]ountenancing excuses of the sort given by defendant that he just forgot about his registration obligation would effectively "eviscerate" the statute[.]'" (Barker, supra, at p. 358.) Barker declined to address "whether forgetfulness resulting from, for example, an acute psychological condition, or a chronic deficit of memory or intelligence might negate the willfulness required[.]" (Ibid.)
People v. Sorden (2005) 36 Cal.4th 65 (Sorden) clarified the issue. Sorden suffered from severe depression, which he claimed made it difficult for him to remember to register. ( Sorden, supra , 36 Cal.4th at pp. 69-70.) Sorden held that "a defendant charged with violation of section 290 may present substantial evidence that, because of an involuntary condition-temporary or permanent, physical or mental-he lacked actual knowledge of his duty to register." (Sorden, supra, at p. 72, emphasis added.) Such evidence may negate the People's showing of willfulness, provided the mental condition is sufficient to "nullify knowledge of one's registration obligations." (Id. at pp. 69, 73.) "Severe Alzheimer's disease is one example that comes to mind; general amnesia induced by severe trauma is another." (Id. at p. 69.)
In Sorden's case:
"There is no question but that he knew of his duty to register. He simply claimed his depression made it more difficult for him to remember to register. However, life is difficult for everyone. As a society, we have become increasingly aware of how many of our fellow citizens must cope with significant physical and mental disabilities. But cope they do, as best they can, for cope they must. So, too, must defendant and other sex offenders learn to cope by taking the necessary measures to remind themselves to discharge their legally mandated registration requirements. It is simply not enough for a defendant to assert a selective impairment that conveniently affects his memory as to registering, but otherwise leaves him largely functional." ( Sorden, supra , 36 Cal.4th at p. 72.)
In People v. Bejarano (2009) 180 Cal.App.4th 583 (Bejarano) , the jury was instructed: "Only the most disabling conditions may negate the willfulness element of this offense. Some examples would be severe Alzheimer's disease... [and] general amnesia induced by severe trauma. [¶] Severe depression does not excuse a convicted sex offender from the registration requirements of Penal Code section 290.'" ( Bejarano, supra , 180 Cal.App.4th at p. 589.) Bejarano claimed he suffered from depression. (Bejarano, supra, at p. 589.) The Bejarano court agreed the instruction given was erroneous, but not for the reason stated by Bejarano; instead, it "omitted the important notion [from Sorden] that the significantly disabling physical or mental condition had to deprive the defendant of knowledge of his duty to register." (Id. at p. 590.)
There was no evidence at trial that defendant fit within the Sorden category of persons whose mental state negates a showing of actual knowledge of the duty to register. Defendant spent five months at Atascadero State Hospital, ending in February 2004, seven years before he violated the registration requirement; notably, he had successfully registered several times since then. No evidence was presented at trial about why he was sent to Atascadero, and there was no evidence he had any hospitalizations-or even any medical treatment-since his stay at Atascadero ended. Indeed, in the reply brief defendant concedes he "was a nominally functioning member of society."
A trial court must instruct on a defense "only if substantial evidence supports the defense." ( People v. Shelmire (2005) 130 Cal.App.4th 1044 , 1054-1055.) Because there was no evidence meeting the Sorden standard, the trial court properly instructed that forgetting "by itself" was not a defense.
Nor do we accept defendant's view that the instruction permitted the jury to convict him even if it found his mental state precluded actual knowledge. The jury was instructed that, in order to prove willfulness, the People had to show defendant did something "willingly or on purpose." The challenged instruction did not tell the jury to ignore defendant's mental state, it merely stated- correctly-that forgetting to register was not "by itself" a defense. The unrebutted arguments of defense counsel made the defense theory clear. (See People v. Hughes (2002) 27 Cal.4th 287 , 363 ["defense counsel's unrebutted closing argument... emphasized and pinpointed' for the jury the defense theory" that ...