United States District Court, N.D. California
For Bruce Oliver Braun, Petitioner: John J. Jordan, LEAD ATTORNEY, Law Office of John J. Jordan, San Francisco, CA.
For Kim Holland, Defendant: Gregory A. Ott, LEAD ATTORNEY, California State Attorney General's Office, San Francisco, CA.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
BETH LABSON FREEMAN, United States District Judge.
Petitioner, a state prisoner who is represented by counsel, seeks federal habeas relief under 28 U.S.C. § 2254 from his state convictions on grounds that (1) the admission of propensity evidence at trial violated his right to due process; (2) the jury instructions on the use of that propensity evidence lessened the burden of proof; (3) defense counsel rendered ineffective assistance both at the trial and pleading stages; and (4) there was cumulative error. Because none of these claims warrant habeas relief, the petition is DENIED.
Petitioner challenges two sets of convictions. The first occurred in 2007, when a Sonoma County Superior Court jury found petitioner guilty of three counts of committing lewd acts with a child (Jane Doe 1, the eight year old daughter of petitioner's friend). The second also occurred in 2007 when, pursuant to a plea agreement, petitioner pleaded no contest to one count of committing a lewd act with a child (Jane Doe 2, the 10 year old daughter of petitioner's roommate). Consequent to these convictions, petitioner was sentenced to a total term of 12 years in state prison. He sought, but was denied, relief on direct and collateral state judicial review. This federal habeas petition followed. (Ans. at 1.)
Evidence presented at the Jane Doe 1 trial showed that in 2004 petitioner touched her breasts and vagina, and other parts of her body, with his penis and hands. Jane Doe 2 also testified at this trial. She testified that petitioner would lie on top of her and rub his genitals against hers while the pair were clothed. She also testified that she once woke to find petitioner masturbating in her room, and that she sometimes saw petitioner masturbating on the floor of his room while looking at her bedroom door. (Ans., Ex. I (State Appellate Court Opinion) at 2-4.)
STANDARD OF REVIEW
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (" AEDPA"), this Court may entertain a petition for writ of habeas corpus " in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court 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 the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
" Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. 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 411. A federal habeas court making the " unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was " objectively unreasonable." Id. at 409.
I. Admission of Propensity Evidence at Trial
At the trial on the charges relating to Jane Doe 1, Jane Doe 2 testified about the (then uncharged) sexual acts petitioner committed with her (Jane Doe 2). Petitioner claims that this testimony constituted impermissible character or propensity evidence. Its admission at trial therefore violated his right to due process and was prejudicial. (Second Am. Pet., Mem. of P. & A. at 12.) The state appellate court rejected this claim, finding that the testimony was properly admitted under a state evidence rule that allows for the introduction of evidence of prior sexual offenses to prove a defendant's conduct on a particular occasion:
[Petitioner] contends the trial court abused its discretion in admitting Jane Doe 2's testimony under Evidence Code [footnote omitted] section 1108 in the Jane Doe 1 case.
As a general rule, evidence of uncharged crimes is inadmissible to prove a [petitioner]'s conduct on a particular occasion. (§ 1101.) The Legislature has created an exception to this rule, however, in section 1108, which provides in pertinent part: (a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Our Supreme Court upheld the constitutionality of section 1108 against a due process challenge in People v. Falsetta (1999) 21 Cal.4th 903, 910-922, 89 Cal.Rptr.2d 847, 986 P.2d 182 ( Falsetto ), relying in part on the trial court's discretion to exclude unduly prejudicial evidence.
[Petitioner] contends that under the facts of this case, the trial court abused its discretion under section 352 [footnote omitted] in admitting Jane Doe 2's testimony pursuant to section 1108. He argues that the People's case was weak and that in the circumstances, Jane Doe 2's testimony was likely to be the deciding factor in the case. He relies for this argument on People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43 ( Antick ), disapproved on another ground in People v. McCoy (2001) 25 Cal.4th 1111, 1123, 108 Cal.Rptr.2d 188, 24 P.3d 1210. There, the trial court had admitted evidence of a prior uncharged burglary for the purpose of identifying the defendant as an accomplice in the charged crimes. ( Antick, supra, 15 Cal.3d at p. 92.) The Court of Appeal concluded the evidence should have been excluded, noting that there were no distinctive common marks shared by the charged and uncharged crimes to justify the admission of the evidence to prove identity. (Id. at p. 94.) The court went on to conclude that the defendant had improperly been impeached on cross-examination with two prior forgery convictions, stating that despite limiting instructions, the jury' was likely to consider the evidence for the improper purpose of determining propensity to commit crimes, particularly where the prosecution's case was weak. (Id. at pp. 96-97.) Antick does not aid [petitioner]. The disputed evidence of other crimes in Antick was not admissible to prove propensity. In enacting section 1108, however, the Legislature determined that in considering sex crimes, evidence of other acts to show propensity is admissible.
Nor are we persuaded by [petitioner]'s argument that the trial court should have excluded Jane Doe 2's testimony because the prosecution's case was weak. We recognize that Jane Doe 1's credibility was at issue after she made statements that were inconsistent or suggested her testimony had not been wholly accurate. One of the purposes of section 1108, however, is to aid the trier of fact in determining questions of credibility related to sexual offenses. ( Falsetta, supra, 21 Cal.4th at p. 911.) Jane Doe 2's testimony about [petitioner]'s prior sexual offenses was properly admitted under section 1108 to aid the jury in deciding whether Jane Doe 1's testimony was credible.
[Petitioner] contends, however, that even if the trial court properly admitted evidence of [petitioner]'s earlier offenses against Jane Doe 2, it abused its discretion in allowing her to testify about the offenses he committed when she was in junior high school, when he masturbated in her presence. [Petitioner] points out that in its motion to admit the prior acts, the People stated that beginning when Jane Doe 2 was in the eighth grade, [petitioner] would expose himself to her or masturbate in front of her approximately 20 times per week. [Petitioner] characterizes this anticipated testimony as " uniquely shocking and prejudicial, " and argues it was less probative of propensity than the evidence that he fondled her and simulated sexual intercourse when she was 10 and 11 years old. In fact, however, Jane Doe 2 did not testify that [petitioner] committed these acts 20 times a week, instead testifying that she saw him masturbating in her room twice, and that she afterward saw him masturbating in his own room, looking toward hers, on an unspecified number of occasions. While these acts were not as similar to the charged offenses as were [petitioner]'s earlier acts against Jane Doe 2, they were still relevant to show his propensity to act in a sexually explicit manner toward the young daughters of his female friends. Indeed, as noted in People v. Frazier (2001) 89 Cal.App.4th 30, 40-41, 107 Cal.Rptr.2d 100, " [t]he charged and uncharged crimes need, not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108." (Accord, People v. Mullens (2004) 119 Cal.App.4th 648, 659, 14 Cal.Rptr.3d 534; see also § 1108, subd. (d)(1)(A); Pen. Code § § 314, 647.6.) In the circumstances, we see no abuse of discretion in admitting Jane Doe 2 's testimony.
People v. Harris (1998) 60 Cal.App.4th 727, 70 Cal.Rptr.2d 689, upon which [petitioner] relies, does not persuade us otherwise. The defendant there, a mental health nurse, was charged with several sex offenses against women who had been admitted to a mental health care facility at which the defendant worked. (Id. at pp. 730-732.) At trial the court admitted evidence of a prior offense that had occurred 23 years earlier, in which the victim had been found unconscious, naked from the waist down, with blood on her vagina and mouth area, and defendant had been discovered hiding nearby, with blood on the inside of his thighs and on his penis. (Id. at pp. 734, 739.) The jury received only a partial and redacted account of the crime. (Id. at pp. 733-734.) The Court of Appeal concluded the evidence should not have been admitted under sections 1108 and 352, concluding the evidence was inflammatory in the extreme, and that the redacted version of the evidence would have caused confusion and speculation, was remote in time, and had no meaningful similarity to the offenses for which the defendant was being tried. ( Harris, at pp. 737-741.) The same cannot be said here. In particular, the evidence of the uncharged offenses was no more inflammatory than the evidence of the charged offenses, and the offenses were similar enough to assist the jury in assessing Jane Doe 1's credibility.
Accordingly, we conclude that the evidence of [petitioner]'s offenses against Jane Doe 2 was properly admitted under section 1108. Having reached this conclusion, we need not consider [petitioner]'s alternate contention that the testimony was not properly admitted under section 1101 as evidence of [petitioner]'s intent. ( See Callahan, supra, 74 Cal.App.4th at p. 372.)
(Ans., Ex. I at 6-9.).
Habeas relief is not warranted here because no remediable federal constitutional violation occurred. First, a petitioner's due process rights concerning the admission of propensity evidence is not clearly established for purposes of review under AEDPA, the Supreme Court having reserved this issue as an " open question." Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006). Second, 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." Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Third, courts, including the California courts through section 1108, have " routinely allowed propensity evidence in sex-offense cases, even while disallowing it in other criminal prosecutions." United States v. LeMay, 260 F.3d 1018, 1025 (9th Cir. 2001). Fourth, any claim that the state court erred in admitting the evidence under state law is not remediable on federal habeas review. The state appellate court's ruling that the evidence was properly admitted under state law binds this federal habeas court. Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005). Based on the foregoing, the state appellate court's rejection of this claim was reasonable and is therefore entitled to AEDPA deference. Accordingly, this claim is DENIED.
II. Jury Instructions on the Propensity Evidence
Petitioner claims that the jury instructions on the use of Jane Doe 2's testimony (CALCRIM No. 1191, " Evidence of Uncharged Sex Offense") unconstitutionally lowered the prosecution's burden to prove his guilt beyond a reasonable doubt. (Second Am. Pet., Mem. of P. & A. at 13.) The state appellate court concluded that the instructions did not lessen the burden of proof, and rejected the claim:
[Petitioner] contends the instructions the jury received regarding the uncharged offenses against Jane Doe 2 unconstitutionally allowed him to be convicted of the offenses against Jane Doe 1 by a mere preponderance of the evidence. [Footnote omitted.]
The trial court instructed the jury pursuant to CALCRIM No. 1191 as follows: " The People presented evidence that the [petitioner] committed the crimes of lewd and lascivious acts on a child under the age of 14 on Jane Doe 2, that were not charged in this case. These crimes are defined for you in the instructions. [¶ ] You may consider this evidence only if the People have proved by a preponderance of the evidence that the [petitioner], in fact, committed the [un]charged offense. [¶ ] . . . [¶ ] If you do decide the [petitioner] committed the uncharged offense, you may, but are not required to, conclude from the evidence that the [petitioner] was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the [petitioner] was likely to commit and did commit lewd and lascivious acts on a child under the age of 14, which was on Jane Doe 1, as charged here. [¶ ] If you conclude the [petitioner] committed the uncharged offense, itself, that conclusion is only one factor to consider along with all the other evidence, [¶ ] It is not sufficient by itself to prove that the [petitioner] is guilty of lewd and lascivious acts on a child under the age of 14 on Jane Doe 1. [¶ ] The People must still prove each element of every charge beyond a reasonable doubt. Do not consider this evidence for any other purpose." [Petitioner] contends this instruction improperly invited the jury to convict him if it were convinced of his guilt by a mere preponderance of the evidence.
This position has been rejected by our Supreme Court. In People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016, 130 Cal.Rptr.2d 254, 62 P.3d 601 ( Reliford ), the court considered the 1999 version of CALJIC No. 2.50.01, which was substantially similar to CALCRIM No. 1191.
FN6[.] The defendant there contended the instruction was likely to mislead the jury concerning the prosecution's burden of proof. ( Reliford, at p. 1012.) The court rejected this contention. In doing so, it first noted that the inferences that (1) a defendant who has committed sex crimes in the past may have a disposition to commit sex crimes, and that (2) a defendant with a predisposition to commit sex crimes was likely to commit and did commit the charged offense, were legitimate. (Id. at pp. 1012-1013.) The court went on to address the defendant's argument that, having found the uncharged sex crime true by a preponderance of the evidence, the jury would rely on that alone to convict him of the charged offenses. The court rejected this argument, stating, " [t]he problem with defendant's argument is that the instruction nowhere tells the jury it may rest a conviction solely on evidence of prior offenses. Indeed, the instruction's next sentence says quite the opposite: 'if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . .., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime.'" (Id. at p. 1013.) These instructions, the court concluded, " could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct." ( Ibid.) The court also rejected the position that a jury might interpret the instruction to permit conviction of the charged offenses under the preponderance-of-the-evidence standard, stating, We do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination whether defendant committed a prior sexual offense . . . The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty 'beyond a reasonable doubt. [Citations.] Any other reading would have rendered the reference to reasonable doubt a nullity." (Id. at pp. 1015-1016; see also Lewis, supra, 46 Cal.4th at pp. 1297-1298.)
FN6. The version of CALJIC No. 2.50.01 considered in Reliford instructed the jury: " 'If you find that the defendant committed a prior sexual offense . .., you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. [¶ ] However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense . .., that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. The weight and significance of the evidence, if any, are for you to decide, [¶ ] You must not consider this evidence for any other purpose.'" ( Reliford, supra, 29 Cal.4th at pp. 1011-1012.)
FN7. The court in Reliford went on to note that the 2002 version of CALJIC No. 2.50.01 deleted the sentence, " 'The weight and significance of the evidence, if any, are for you to decide, " ' and inserted " if you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime." The court characterized this new language as " an improvement, " that " provides additional guidance on the permissible use of the other-acts evidence and reminds the jury of the standard ...