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Garcia v. Stainer

United States District Court, C.D. California

November 12, 2014

SAUL GARCIA, Petitioner,
v.
STAINER, Warden, Respondent

Saul Garcia, Petitioner, Pro se, Tehachapi, CA.

For Stainer, Respondent: E Carlos Dominguez, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SHERI PYM, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.

INTRODUCTION

On March 8, 2012, petitioner Saul Garcia, a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (" Petition"). Petitioner challenges his 2010 convictions in Los Angeles Superior Court for criminal threats.

Following petitioner's voluntary dismissal of one of the grounds he initially raised in the Petition, petitioner asserts three remaining grounds for relief: (1) the prosecution violated a court order by introducing improper evidence regarding prior incidents (Ground One); (2) the evidence was insufficient to support petitioner's convictions (Ground Two); and (3) the trial court erred in admitting evidence of prior incidents of uncharged criminal conduct (Ground Four). Pet. at 5-6.

For the reasons discussed in more detail below, petitioner's claims do not merit habeas relief. It is therefore recommended that the Petition be denied.

II.

STATEMENT OF FACTS[1]

On the afternoon of January 30, 2009, petitioner entered a hardware store at the Norwalk Indoor Swap Meet and spoke to store owners Marco Perez, Sr. and his two sons, Marco Perez, Jr. and Roberto Perez.

According to the Perez men, petitioner demanded some batteries and refused to pay for them. When Marco Perez, Jr. insisted he pay for them, petitioner struck him in the chest. Marco Perez, Sr. and Roberto Perez witnessed the assault and told petitioner to leave. Marco Perez, Jr. testified, as petitioner was leaving he said, " 'I'm going to come back with my homies and kill you all.'" Marco Perez, Sr. testified petitioner said " he was going to go after his homies and come back." Roberto Perez testified petitioner said, " 'I'll come back with my homies, then, and do something to you guys, '" and he also said, " 'I'm going to come back with my homies to beat you guys up.'" Each of the Perez men testified petitioner's threats caused him fear for his own safety.

The People also introduced evidence of prior incidents of uncharged conduct to prove motive and intent: In one incident petitioner drove up and demanded money from a teenager walking on the street. After the teenager surrendered his wallet, petitioner said, " Don't tell anybody. We know who you are. We'll come find you." In another incident petitioner demanded money from a store owner and then refused to leave, saying, " If you don't going [sic ] to give me money, I'm going to shoot you in the head."

Called as a defense witness, Los Angeles County Deputy Sheriff Richard Cortez testified, when they were interviewed, the Perez men quoted petitioner as saying only, " 'I'm going to be back with my gun and my homies.'" Maria Tisnado, a hardware store employee, testified she heard petitioner threaten only " to come back with his homies."

III.

PROCEDURAL BACKGROUND

On March 11, 2010, following a jury trial, petitioner was convicted of three counts of criminal threats (Cal. Penal Code § 422). Lodged Doc. 1 (Clerk's Transcript (" CT")) at 277-79, 363. After petitioner waived his right to a jury trial on his prior strikes, the trial court found true the allegations under California's Three Strikes Law that petitioner suffered three prior strike convictions (Cal. Penal Code § 1170.12), one of which the trial court subsequently struck. Lodged Doc. 2 (Reporter's Transcript (" RT")) at 716-18, 1227-28. On April 26, 2010, the trial court sentenced petitioner to a term of twelve years in prison. CT at 363-64; RT at 1232.

On appeal, petitioner's appellate counsel failed to identify any arguable issues and so requested that the California Court of Appeal conduct an independent review under People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979). Lodged Doc. 3. Petitioner submitted a handwritten supplemental brief in which he challenged his convictions for insufficient evidence. Lodged Doc. 4 at 4. After reviewing the entire record, the California Court of Appeal found that no meritorious issues existed and, on February 23, 2011, affirmed petitioner's conviction in a reasoned, unpublished decision. Lodged Doc. 4. It appears from the record before this court that petitioner did not submit a petition for review to the California Supreme Court.

On May 10, 2011, petitioner filed a petition for writ of habeas corpus in the California Supreme Court asserting as his grounds for relief ineffective assistance of counsel as well as that the prosecution violated a court order by improperly introducing evidence of prior incidents. Lodged Doc. 5 at 3-4, 10-12.[2] On October 12, 2011, the California Supreme Court denied the petition, citing In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513 (1953), and In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793 (1949). Lodged Doc. 6.

Meanwhile, on June 20, 2011, petitioner filed his first federal habeas petition in this court in case number CV 11-5225-DSF (SP). While that federal petition was still pending, on October 17, 2011 petitioner filed a second petition for writ of habeas corpus in the California Supreme Court, which, liberally construed, asserted the following grounds for relief: (1) there was insufficient evidence to support petitioner's conviction; (2) the trial court erred, in violation of petitioner's right to due process, by admitting evidence of prior incidents; and (3) the prosecution engaged in misconduct by introducing improper evidence regarding prior incidents in violation of a court order, resulting in a violation of petitioner's right to due process. Lodged Doc. 7 at 3-11.

On December 12, 2011, this court dismissed petitioner's first federal habeas petition without prejudice, stating that he was free to reassert his claims in a second habeas petition once he had exhausted his state court remedies and his state habeas proceedings had concluded. Garcia v. Stainer, 2011 WL 7095490, at *3 (C.D. Cal. Dec. 12, 2011). On February 15, 2012 the California Supreme Court denied petitioner's second petition for writ of habeas corpus, citing In re Dixon, 41 Cal.2d at 759, and In re Lindley, 29 Cal.2d 709, 723, 177 P.2d 918 (1947).

On March 8, 2012, petitioner filed the instant federal habeas Petition. On April 10, 2012, respondent moved to dismiss the Petition as mixed, contending that Ground Three, an ineffective assistance of counsel claim, was unexhausted because it was presented to the California Supreme Court in a procedurally defective manner. On April 26, 2012, petitioner voluntarily dismissed Ground Three and elected to proceed on his remaining three claims.

IV.

STANDARD OF REVIEW

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"). AEDPA provides that federal habeas relief " 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." 28 U.S.C. § 2254(d)(1)-(2) (emphasis added).

In assessing whether a state court " unreasonably applied" Supreme Court law or " unreasonably determined" the facts, the federal court looks to the last reasoned state court decision as the basis for the state court's justification. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Here, the California Court of Appeal's opinion on February 23, 2011, stands as the last reasoned decision on the merits of Ground Two.

The last state court decision on Grounds One and Four is the February 15, 2012 order of the California Supreme Court denying petitioner's second state habeas petition. Insofar as the California Supreme Court's bases for rejection of Grounds One and Four could arguably be considered procedural rather than substantive, de novo review by this court is required. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In this case, the issue is moot because the result with regard to these claims is the same regardless of whether they are reviewed de novo or under the deferential AEDPA standard applicable to claims previously adjudicated on the merits. Accordingly, affording petitioner the benefit of the doubt as to the appropriate standard, Grounds One and Four are considered here de novo.

V.

DISCUSSION

A. Petitioner Is Not Entitled to Relief on His Prosecutorial Misconduct Claim

In Ground One, petitioner contends that the prosecution violated a court order by introducing improper character evidence regarding prior incidents of criminal conduct, thereby resulting in prejudice to petitioner. Pet. at 5. For multiple reasons, this claim does not merit habeas relief.

1. Ground One Is Procedurally Defaulted

Respondent contends that Grounds One is procedurally defaulted. Answer at 8-11. Specifically, respondent argues that Ground One is procedurally defaulted because it was presented in petitioner's second habeas petition to the California Supreme Court and subsequently rejected by that court with citation to In re Dixon. See Lodged Docs. 7, 8.

A federal court may not review a claim if a state court dismissed the claim on an adequate and independent state law ground. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). For this procedural bar to apply, the opinion of the last state court rendering a judgment in the case must clearly and expressly state that its judgment rests on a state procedural bar. Harris v. Reed, 489 U.S. 255, 264 n.10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Further, " the application of the state procedural rule must provide 'an adequate and independent state law basis' on which the state court can deny relief." Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000) (quoting Coleman, 501 U.S. at 729-30).

A California court's citation to In re Dixon signifies that a claim was denied on habeas review because it could have been, but was not, raised on direct appeal. In re Dixon, 41 Cal.2d at 759; see In re Robbins, 18 Cal.4th 770, 778 n.1, 814 n.34, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998). As noted above, petitioner's second writ of habeas corpus in the California Supreme Court asserted the following claims: (1) there was insufficient evidence to support petitioner's conviction; (2) the trial court erred, in violation of petitioner's right to due process, by admitting evidence of petitioner's prior convictions; and (3) the prosecution engaged in misconduct by introducing improper character information regarding a prior conviction, in violation of a court order, resulting in a violation of petitioner's right to due process. Lodged Doc. 7 at 3-11. The California Supreme Court denied the petition, with citation to both In re Dixon and In re Lindley . Lodged Doc. 8. Citation to In re Lindley stands for the proposition that an insufficiency of evidence claim must be raised on direct appeal and not in a habeas action. Carter v. Giurbino, 385 F.3d 1194, 1196 (9th Cir. 2004); see In re Lindley, 29 Cal.2d at 723. Thus, the citation to Lindley must pertain to the insufficient evidence claim. As such, the California Supreme Court clearly denied petitioner's remaining claims -- which correspond to Grounds One and Four in the instant Petition -- pursuant to In re Dixon . Lodged Doc. 8.

Because respondent has met the burden of pleading and proving the procedural bar is adequate and independent, the burden shifts to petitioner to show cause for the default and actual prejudice resulting from the alleged constitutional violation, or that failure to consider the claim will result in a fundamental miscarriage of justice. Carter, 385 F.3d at 1198 (citing Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003)); see also Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). Here, petitioner has made no showing as to the cause for the default, actual prejudice, or that the failure to consider his claims will result in a fundamental miscarriage of justice. Accordingly, Ground One is procedurally defaulted.

2. Ground One Also Fails on Its Merits

A petitioner's due process rights are violated when prosecutorial misconduct " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)); Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000). To determine whether the misconduct violated due process, a reviewing federal habeas court must consider the misconduct in light of the entire proceedings. See, e.g., Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991) (examining the prosecutor's remarks in context of the entire trial). Even if the prosecutor's conduct violates due process, habeas relief will only be granted if the petitioner can establish that the misconduct had a substantial and injurious effect or influence in determining the jury's verdict. Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (applying harmless error test of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), to prosecutorial misconduct claims).

The trial court here did not preclude the parties from referencing either of the prior incidents of uncharged criminal threats. The prosecution argued, pretrial, that evidence of the prior incidents -- which involved uncharged threats made by petitioner in connection with two separate incidents in which he sustained convictions for resisting an officer and robbery -- was relevant to show petitioner's intent with respect to the criminal threats charges petitioner faced in the underlying case here. RT at 8-10. Defense counsel objected to admission of the evidence on multiple grounds, including that the incidents were not similar to the instant offense and were more prejudicial than probative. Id. at 10, 14. After acknowledging the potential prejudice to the petitioner of revealing to the jury that he had previously sustained a conviction of moral turpitude, the trial court ruled that the prosecution could not reference a " robbery or conviction" but could solicit testimony concerning petitioner's conduct and statements made at the time of the incidents. Id. at 17-18.

Petitioner asserts that the prosecution " openly used, " and allowed a witness to use, the term " robbery" in violation of a direct order by the trial court. Pet. at 5. Petitioner does not cite to anything in the record to support his claim, and the court has found no evidence in the record that the prosecution committed misconduct.

At trial, the prosecution solicited testimony from both Jeffrey Lemos, the then-teenaged boy involved in the first incident (RT at 386-95, 399-401), and Alamin Sabazali, the store owner involved in the second incident. Id. at 438-44. Both witnesses described in detail the events that had occurred during the incidents, as permitted by the trial court's order. Id. at 386-95, 399-401, 438-44. Neither witness violated the terms of the order by using the term " robbery" in reference to petitioner's conduct or by mentioning a subsequent conviction. Id. Nor is there any evidence in the record of the prosecutor using the term " robbery" to describe the prior incidents in the presence of the jury. Id. at 386-95, 399-401, 430-44, 690-92.

The record does reveal one instance of the term " robbery" having been used by a witness for the prosecution in reference to a prior incident. The direct examination of Lieutenant Robert Norris, the deputy sheriff involved in the follow-up investigation of the Lemos incident, began as follows:

[The Prosecution]: On December 4, 1994, did you receive information that required you to do some follow-up work?
[Lieutenant Norris]: I did.
[The Prosecution]: And what was it that you received?
[Lieutenant Norris]: I read a crime broadcast that a robbery had occurred.
[Pet. Attorney]: Objection, your Honor.
[The Court]: Overruled

RT at 431. Although Lieutenant Norris's mention of a " robbery" appears to have violated the pre-trial order, there is nothing in the record to indicate the prosecution was seeking to elicit a mention of the term " robbery." Indeed, the record supports a contrary inference, given that the two lay witnesses avoided mentioning the term. While the prosecution's broad question to Lieutenant Norris was perhaps not as careful as it might have been, it appears this line of questioning was an inadvertent mistake and not misconduct. See, e.g., U.S. v. Carrillo, 16 F.3d 1046, 1050 (9th Cir. 1994) (finding that the prosecutor's " misstatement has earmarks of inadvertent mistake, not misconduct"). To the extent petitioner objects to the trial court's admission of the evidence over defense counsel's objection at trial, he is making a claim of trial court error, discussed in Section V.C.2 below, and not of prosecutorial misconduct.

Even if there was misconduct, it was harmless. Lieutenant Norris's testimony was the only mention of the term " robbery" in the presence of the jury in relation to the prior incidents. The jury had already heard Lemos's testimony, which described in some detail the events that had transpired between himself and petitioner, and which included no reference to the term " robbery" and no discussion of any conviction by either Lemos or the prosecutor. RT at 386-95, 399-401. Lieutenant Norris himself did not mention, and the prosecutor did not ask, whether petitioner was ultimately convicted of a crime for his part in the Lemos incident. Id. at 430-34, 436-37. The prosecution did not mention the term " robbery" in connection with the prior incidents in either its opening or closing statements. RT at 313-17, 684-94. As such, there is no indication the use of the prohibited term by Lieutenant Norris had a substantial and injurious effect on the verdict. See Brecht, 507 U.S. at 637-38.

This is particularly so because any risk of prejudice to petitioner was mitigated by limiting instructions as to the proper use of the evidence. Prior to the admission of the testimony, the jury was admonished that evidence of prior offenses could only be considered if the prosecution proved, by a preponderance of evidence, that petitioner in fact committed the uncharged offenses. RT at 384. The jury was further instructed that it could only consider the evidence for the limited purpose of deciding whether or not petitioner acted in the instant case with the intent that his statement be taken as a threat, whether or not he knew that his statement would be taken as a threat, and whether or not he had a plan to commit the offense alleged in the instant case. Id. A jury is presumed to follow the instructions it is given. Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000).

For all of these reasons, petitioner is not entitled to relief on Ground One.

B. Petitioner Is Not Entitled to Relief on His Insufficient Evidence Claim

Petitioner contends in Ground Two that there was insufficient evidence to support his convictions for criminal threats in violation of California Penal Code § 422.[3] Pet. at 5. Petitioner specifically contends that each of the Perez men testified that petitioner made a threat to kill, but that this was never documented and they only " thought" that was what petitioner had said. Id. Petitioner states that none of the witnesses at trial were able to confirm whether or not a criminal threat was ever stated. Id. The California Court of Appeal rejected this claim on the merits. See Lodged Doc. 4 at 4. This court concludes, based upon an independent review of the record, that petitioner is not entitled to habeas relief on this claim.

It is well established that sufficient evidence exists to support a conviction if, " 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." [4] Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In considering a claim of insufficient evidence, a federal habeas court " must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995); see also Jackson, 443 U.S. at 319, 324, 326. " If confronted by a record that supports conflicting inferences, federal habeas courts must presume -- even if it does not affirmatively appear in the record -- that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. A jury's credibility determinations are therefore entitled to near-total deference under Jackson." Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (per curiam) (internal quotation marks and citations omitted).

Furthermore, under AEDPA, the court applies " the standards of Jackson with an additional layer of deference" to the state court's decision. Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005). The court must determine " whether the decision of the California Court of Appeal reflected an 'unreasonable application of' Jackson and [ In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), ] to the facts of this case." Id. at 1275 (citations omitted). Thus, a federal habeas petitioner " faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Id. at 1274.

Since the Jackson standard is " applied with explicit reference to the substantive elements of the criminal offense as defined by state law, " the court begins with California law. See Jackson, 443 U.S. at 324 n.16. In California, to be found guilty of criminal threats, the prosecution must prove five distinct elements: (1) the defendant willfully threatened to commit a crime that would result in death or great bodily injury to another person; (2) the defendant made the threat with the specific intent that the statement be taken as a threat, even if the defendant had no intent of actually carrying it out; (3) the threat -- which may be made verbally, in writing, or by electronic communication device -- was on its face and under the circumstances in which it was made so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and immediate prospect of execution of the threat; (4) the threat actually caused the person threatened to be in sustained fear for his or her own safety or for his or her immediate family's safety; and (5) the threatened person's fear was reasonable under the circumstances. See People. v. Toledo, 26 Cal.4th 221, 227-28, 109 Cal.Rptr.2d 315, 26 P.3d 1051 (2001).

Here, petitioner contends that none of the witnesses at trial was able to confirm that a criminal threat was ever stated. Pet. at 5. But viewing the evidence in the light most favorable to the prosecution, it is clear that a rational trier of fact could have found beyond a reasonable doubt that petitioner was guilty of making criminal threats. The record shows that petitioner had a history of intending his words and actions to be taken as a threat. Indeed, both of the prior incidents introduced at trial involved similar threats. First, petitioner demanded money from a teenaged Lemos and, after Lemos offered petitioner all of the cash in his wallet, petitioner told him, " Don't tell anybody. We know who you are. . . . We'll come find you." RT at 390-93. Some years later, petitioner demanded that store owner Sabazali give him money from the register in his Super 92cent Store. Id. at 438-40. As Sabazali was attempting to call the police, petitioner told him, " If you don't going [sic] to give me money, I'm going to shoot you in the head." Id. at 442.

With respect to the instant offense, all three Perez men testified that petitioner had demanded that Marco Perez Jr. give him batteries for free from the Perez family's hardware store. Id. at 327-28, 365, 404. After Marco Perez Jr. refused to hand over the batteries for free, petitioner asked him, " Don't you know who I am?" and then hit him in the chest. Id. at 329, 365, 404. Petitioner was then asked to leave. Id. at 331, 405. According to Marco Perez Jr., petitioner then stated, " I'm going to come back with my homies and kill you all." Id. at 332. According to Marco Perez Sr., petitioner stated that " he was going to go after his homies and come back." Id. at 367. Roberto Perez testified that petitioner had stated, " I'll come back with my homies, then, and do something to you guys, " as well as, " I'm going to come back with my homies to beat you guys up." Id. at 406. Roberto Perez also testified that petitioner had stated, " I'll get my homies and come back" . . . " and kill or beat you guys up, " but that it had " been awhile" and he could not remember the precise phrasing. Id. at 407. All three Perez men testified that they feared for their safety and believed that petitioner would carry out his threat. Id. at 322-23, 368, 407-08.

The testimony of a single witness, if believed, is sufficient to prove a fact. U.S. v. Jones, 425 F.2d 1048, 1055 (9th Cir. 1970). Thus, given the evidence of petitioner's prior incidents, as well as the testimony of the Perez men, the foregoing evidence is more than sufficient to satisfy the elements of Penal Code § 422.

The court notes that hardware store employee Maria Tisnado testified that she only heard petitioner threaten that he would " come back with his homies." RT at 641. Deputy Sheriff Richard Cortez testified that the Perez men had quoted petitioner as saying only, " I'm going to be back with my gun and my homies." Id. at 628-30. To the extent petitioner's challenge to the sufficiency of the evidence depends on an attack on the credibility of the Perez men, however, it is well settled that credibility determinations are the province of the jury. See Bruce, 376 F.3d at 957. A federal court in a habeas corpus proceeding cannot redetermine the credibility of witnesses whom the federal court has not observed. Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). Rather, this court " must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." Walters, 45 F.3d at 1358.

The court thus concludes that the evidence presented at trial was sufficient for a rational jury to conclude beyond a reasonable doubt that petitioner was guilty of making criminal threats. Accordingly, the California Court of Appeal's denial of this claim did it involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court, nor was it an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Petitioner is therefore not entitled to habeas relief on this claim.

C. Petitioner Is Not Entitled To Relief on His Wrongly Admitted Evidence Claim

In Ground Four, petitioner contends that the trial court erred in admitting the prior incidents evidence. Pet. at 6. Like the related Ground One claim, petitioner's Ground Four claim does not warrant relief for several reasons.

1. Ground Four Is Teague- Barred

Respondent contends that Ground Four is barred by the anti-retroactivity doctrine set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Answer at 12-15. The court agrees.

In Teague, the Supreme Court held that a new rule of constitutional law generally cannot be applied retroactively on collateral review. Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). Rather, it is generally only available on direct review. Id. " [A] case announces a new rule when it breaks ground or imposes a new obligation on the States or the Federal Government, " or " if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301; accord Stringer v. Black, 503 U.S. 222, 228, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). There are only two exceptions to the nonretroactivity rule: (1) if the rule forbids criminal punishment of primary, individual conduct; or (2) if the rule is a " watershed" rule of criminal procedure. Teague, 489 U.S. at 307.

To assert a Teague claim: (1) the state must identify Teague as an issue; (2) the new rule of constitutional law that falls within its proscription should be articulated; (3) the reasons why such a rule would not have been compelled by existing precedent should be explained with particular reference to the appropriate universe of precedent; and (4) an argument should be made why the rule contended for is not within one of Teague 's exceptions. Arredondo v. Ortiz, 365 F.3d 778, 781-82 (9th Cir. 2004). Respondent here has met these requirements.

The court agrees with respondent's analysis that granting relief on these claims would require the court to announce a new rule of constitutional law -- " that the admission of prior crimes evidence violates the federal Constitution." Answer at 14. Indeed, the United States Supreme Court has expressly declined to decide whether the introduction of evidence of prior bad acts to show propensity to commit a crime violates due process. See Estelle v. McGuire, 502 U.S. 62, 75 n.5, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (" [W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of 'prior crimes' evidence to show propensity to commit a charged crime."); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008) (" The Supreme Court has expressly reserved the question of whether using evidence of the defendant's past crimes to show that he has a propensity for criminal activity could ever violate due process."). Thus, the court finds that petitioner seeks the benefit of a new, never-before-announced rule regarding the proscription of the admission of prior crimes evidence that would be retroactive to this claim.

Such a new rule would not fit within either of the two narrow exceptions to the Teague non-retroactivity rule. First, the proposed new rule is obviously not one that places a class of private conduct beyond the power of the State to proscribe, or addresses a substantive categorical guarantee accorded by the Constitution, or de-criminalizes a class of conduct. See Teague, 489 U.S. at 311. Second, the proposed new rule does not fit within the exception for " watershed rules of criminal procedure, implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (internal quotation marks and citation omitted). To qualify for this second exception, a new rule must meet two conditions: (1) it must relate to the accuracy of the conviction; and (2) it must also " alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) (internal quotation marks and citation omitted); see also Butler v. McKellar, 494 U.S. 407, 416, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) (this exception is meant to apply to those procedures without which the accuracy of a conviction would be seriously diminished). Here, petitioner's proposed rule would not be a " watershed" rule that is considered essential to our concepts of ordered liberty, such as the right to counsel in a criminal case. Id. at 495; Teague, 489 U.S. at 307.

Because granting petitioner's claim would require the creation of a new constitutional rule that would not fall within a Teague exception, Teague bars Ground Four.

2. Ground Four is Procedurally Defaulted and, In Any Event, Is Not Cognizable and Fails on Its Merits

Even if it were not Teague -barred, petitioner's claim that the trial court erred in admitting evidence of prior incidents involving threats made by petitioner fails for multiple other reasons. First, and as noted above, a federal court may not review a claim if a state court dismissed the claim on an adequate and independent state law ground. Coleman, 501 U.S. at 729. Thus, for the same reasons noted above in Section V.A.1's analysis of Ground One, Ground Four is also procedurally defaulted.

Next, the court concurs with respondent that this claim is not cognizable on federal habeas review because it exclusively involves the interpretation and/or application of state evidentiary rules.[5] Answer at 16. Whether evidence was " incorrectly admitted . . . pursuant to California law . . . is no part of a federal court's habeas review of a state conviction." Estelle, 502 U.S. at 67 (internal quotation marks and citation omitted). " '[F]ederal habeas relief does not lie for errors of state law.'" Id. (citations omitted). To obtain federal habeas relief, petitioner must show that the admission of evidence rendered the trial so fundamentally unfair that it violated federal due process. Id. at 67-68; Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009).

Here, petitioner claims that evidence of a robbery was " wrongfully introduced" and that " prosecutors explained a robbery that defendant served time for." Pet. at 6. It is not clear to the court whether petitioner wholly objects to the admission of the prior incidents evidence of a robbery and uncharged criminal threats, or whether he is specifically referring to Lieutenant Norris's mention of the term " robbery" in violation of the trial court's order, as discussed above in Section V.A.2. Moreover, petitioner does not assert a violation of his right to due process, and instead implies that he suffered a violation of his right to be free from double jeopardy since he already served time for the prior robbery. Pet. at 6. Double jeopardy is plainly not at issue here. See U.S. Const. amend. V (" nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb"). Assuming petitioner had asserted a violation of his right to due process, however, this claim still does not merit habeas relief.

There are no controlling Supreme Court decisions holding that the admission of prior crimes evidence violates due process. Holley, 568 F.3d at 1101 (" The Supreme Court . . . has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ."). As such, there is no clearly established Supreme Court law directly addressing this issue, and therefore the state court's decision on this issue cannot be contrary to, or an unreasonable application of, federal law. See Wright v. Van Patten, 552 U.S. 120, 125-26, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008); Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).

Furthermore, the admission of evidence violates due process only if there is no permissible inference the trier of fact can draw from it. Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005); Houston v. Roe, 177 F.3d 901, 910 n.6 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). That was not the case here.

" [T]he prosecution must prove all the elements of a criminal offense beyond a reasonable doubt" ( Estelle, 502 U.S. at 69), and as noted above, to convict petitioner of making criminal threats under California law, the prosecutor was required to establish, inter alia, that petitioner willfully threatened to commit a crime that would result in death or great bodily injury to another person, and made the threat with the specific intent that the statement be taken as a threat, even if he had no intent of actually carrying it out. See Toledo, 26 Cal.4th at 227-28. Evidence of petitioner's prior threats was particularly probative of petitioner's intent here in light of the similar manner in which petitioner made his threats in both prior incidents. For example, with regard to the first incident, Lemos testified that petitioner demanded money from him and then, after receiving it, told him, " Don't tell anybody. We know who you are. . . . We'll come find you." RT at 393. In the second incident, Sabazali testified that petitioner demanded money from him, and that after he told petitioner to leave the store, petitioner stated, " If you don't going [sic ] to give me money, I'm going to shoot you in the head." Id. at 442. In short, both prior offenses involved remarkably similar threats to those made in the instant case. Even Lieutenant Norris's mention that he was following up on a robbery call, while arguably prejudicial, does not alter the conclusion that there were permissible and pertinent inferences the jury could draw from the prior incidents evidence.

In addition, and as also set forth above with respect to Ground One, the trial court provided the jury with a limiting instruction, stating that evidence of prior offenses could only be considered if the prosecution proved, by a preponderance of evidence, that petitioner had in fact committed the uncharged offenses. RT at 384. The jury was also instructed that it could only consider the evidence for the limited purpose of deciding whether or not petitioner acted in the instant case with the intent that his statement be taken as a threat, whether or not he knew that his statement would be taken as a threat, and whether or not he had a plan to commit the offense alleged in this case. Id. Again, a " jury is presumed to follow its instructions." Weeks, 528 U.S. at 234.

In short, because the evidence of petitioner's uncharged threats was relevant to show intent, the jury had the opportunity to assess the credibility of the witnesses who testified about petitioner's prior incidents, and the jury was provided with a limiting instruction, the admission of such evidence did not violate due process. For this and the other reasons stated, petitioner is not entitled to federal habeas relief on this claim.

VI.

RECOMMENDATION

IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.


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