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Hayes v. Montgomery

United States District Court, C.D. California

February 13, 2015

W. L. MONTGOMERY, Respondent

For Dion Durrell Hayes, Petitioner: Richard Jay Moller, LEAD ATTORNEY, Richard J Moller Law Offices, Redway, CA.

For W. L. Montgomery, Respondent: Robert M Snider, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.


Hon. Jay C. Gandhi, United States Magistrate Judge.



On May 18, 2011, a jury convicted Dion Durrell Hayes (" Petitioner") of one count of first degree murder and two counts of attempted murder.[1] (Lodg. No. 1, Clerk's Transcript (" CT"), at 289-90, 330.) The jury further found true certain firearm and gang enhancement allegations. (Id. at 289-94.) Petitioner was sentenced to state prison for fifty years to life. (Id. at 330.)

Petitioner appealed. In a reasoned decision, the California Court of Appeal reversed Petitioner's attempted murder convictions due to a Confrontation Clause violation, but otherwise affirmed the judgment. (Lodg. Nos. 3-6.) The California Supreme Court summarily denied petition for review. (Lodg. Nos. 7-8.)

The Court has reviewed the record, and the evidence is accurately summarized in the Court of Appeal's decision on direct review, which is attached as Exhibit A. (Lodg. No. 6); see also 28 U.S.C. § 2254(e)(1) (facts presumed correct). The Court discusses facts below as are pertinent to habeas relief.



Petitioner asserts three grounds for relief, all of which fail on this record. See 28 U.S.C. § 2254(d) (Antiterrorism and Effective Death Penalty Act) (" AEDPA"); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).

A. Confrontation Clause Violation

First, Petitioner contends that the admission at trial of eyewitness Spencer Thomas's preliminary hearing testimony violated Petitioner's Sixth Amendment right to confrontation.[2] (Pet. at 5; Pet. Att. 8A at 5-28.) Moreover, Petitioner argues that Thomas's testimony was essential to his murder conviction because it improperly corroborated Blow's less consistent identification testimony.[3] (Id.; Pet. Att. 8A at 7-13; RT at 1314-30.)

As a general matter, the Sixth Amendment's Confrontation Clause provides in part that a criminal defendant has " the right . . . to be confronted with the witnesses against him." Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause thus bars " testimonial statements of a witness who [does] not appear at trial unless [the witness is] unavailable to testify, and the defendant . . . had a prior opportunity" to cross-examine the witness. Id. at 53-54, 68. But even where constitutional error is found, a federal habeas court must also " assess the prejudicial impact of constitutional error" under Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007); Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011). Under the Brecht standard, habeas relief is warranted only if the error had a " substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637-38.

Here, the Court of Appeal found that the admission of Thomas's preliminary hearing testimony was erroneous, because, contrary to the trial court's finding, the prosecution did not properly show due diligence in attempting to locate Thomas for trial. (Ex. A at 11-14.) However, the Court of Appeal found the error harmless as to Petitioner's murder conviction because Thomas " did not witness the shooting in the alley and did not directly implicate Hayes in that crime." [4] (Ex. A at 15.) Assuming, without deciding, that the Court of Appeal was correct in finding that the trial court erred and that the admission of Thomas's testimony violated the Constitution, the sole determination for this Court is whether the Court of Appeal " applied harmless error review in an 'objectively unreasonable' manner." Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). To determine whether a Confrontation Clause error was harmless, a court should consider five factors: (1) the importance of the testimony to the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of corroborating or contradictory evidence; (4) the extent of cross-examination permitted; and (5) the overall strength of the prosecution's case. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). While the Court of Appeal did not, and need not, expressly analyze the five Van Arsdall factors, see Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002), its finding of harmless error was reasonable for three reasons:

o Testimony Not Important: First, Thomas's statements were not important to Petitioner's murder conviction. See Van Arsdall, 475 U.S. at 684. Significantly, Thomas was not a witness to the alley shooting and did not discuss that shooting during his preliminary hearing testimony. ( See Ex A. at 15; RT at 1565-75.) Rather, Thomas's statements were limited to the second shooting, which was distinct from the alley shooting in both time and location. ( See id.)
o Witness Was Cross-Examined: Second, Petitioner had the opportunity to fully cross-examine Thomas at the preliminary hearing. (RT at 1580-82); see also Van Arsdall, 475 U.S. at 679. Notably, Thomas's hearing testimony included statements that (1) he was under the influence of drugs and alcohol during both the shooting and his police interview, and (2) the police encouraged him to identify Petitioner. (Id. at 1580-82.)
o Compelling Evidence of Petitioner's Guilt: Third, the overall evidence of Petitioner's guilt was compelling. See Van Arsdall, 475 U.S. at 684. First, the " unchallenged testimony from a number of witnesses" demonstrated that Hayes arrived at the party on a motorcycle, heatedly argued with a rival gang member, and left vowing to return. (Ex. A at 15.) Second, during his police interview, Blow specifically identified Petitioner as the person who fired shots in the alley. (RT at 1538.) Third, another witness corroborated Blow's account by testifying that, shortly after Petitioner left the party, she saw three men chasing a man toward an alley, and then heard several rounds of gunfire. (Id. at 1210-13.) As cogently noted by the Court of Appeal, " there is no reasonable doubt a rational jury would have convicted Hayes of Williams's murder even if it had not heard Thomas's testimony." (Ex. A at 15.)

Thus, viewed in the context of the record as a whole, the Court of Appeal's finding that the admission of Thomas's testimony constituted harmless error was not unreasonable. See Van Arsdall, 475 U.S. at 679; Brecht, 507 U.S. at 637-38.

Accordingly, Petitioner's first claim does not merit federal habeas relief.

B. Jury Instruction

Second, Petitioner alleges that he was deprived of a fair trial because the trial court did not issue a special jury instruction that Petitioner could not be found guilty as an aider and abettor for murder based solely on his membership in a criminal street gang. (Pet. at 5-6; Pet. Att. 8B); see also Calderon v. Superior Court, 87 Cal.App.4th 933, 940-41, 104 Cal.Rptr.2d 903 (2001).

Generally, to warrant federal habeas relief, the omission of a jury instruction must violate a due process right guaranteed by the Fourteenth Amendment. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). A petitioner faces an " especially heavy" burden in challenging a trial court's failure to give an instruction, because " an omission . . . is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).

And, even when an omission violates due process, it warrants habeas relief only if it " had substantial and injurious effect or influence in determining the jury's verdict, " or if there is a " reasonable possibility" that, had the jury been given the instruction, it would have reached a different verdict. Brecht, 507 U.S. at 637; Clark v. Brown, 442 F.3d 708, 726 (9th Cir. 2006).

Here, the omitted instruction did not violate due process for two reasons:

o Proposed Instruction Was Duplicative: First, as noted by the Court of Appeal, the trial's court's given instructions adequately embodied Petitioner's proposed instruction. (Ex. A at 18-19.) Preliminarily, the trial court instructed the jury with CALJIC No. 17.24.3, [5] ordering the jury to consider gang evidence only for the limited purposes of determining: (1) whether the crimes charged were committed for the benefit of a criminal street gang; (2) the identity of the perpetrator; (3) motive; and (4) witness credibility. (Id. at 19; CT at 275.) Importantly, the trial court specifically told the jury not to consider gang evidence " for any other purpose." (Id.) Additionally, the trial court instructed the jury on the principles of aider-and-abettor liability.[6] (Ex. A at 19; CT at 257.) Namely, the jury was instructed that: (1) Petitioner could be held liable as an aider and abettor only if he had acted " with the specific intent or purpose of committing or encouraging or facilitating the commission of the crime"; and (2) mere knowledge of, or presence at, a crime cannot sustain a conviction for aiding and abetting. (Id.) Thus, because the jury was adequately instructed on the relevant law, Petitioner has failed to establish that the trial court's refusal to give the proposed instruction rendered his trial fundamentally unfair. Henderson, 431 U.S. at 156-57.
o No Prejudice: Second, the trial court's failure to give the proposed jury instruction did not prejudice Petitioner. See Brecht, 507 U.S. at 637-38; see also United States v. Warren, 25 F.3d 890, 895-96 (9th Cir. 1994) (" A court may reject portions of a proposed theory of defense that merely rephrase explanations of the law adequately covered elsewhere in the instructions.").

Accordingly, for the above reasons, Petitioner's second claim does not merit federal habeas relief.

C. Amended Information

Third, Petitioner claims that the trial court violated his Constitutional rights when it granted the prosecution's motion to amend the criminal information to accommodate a theory that Petitioner had aided and abetted Williams's murder. (Pet. at 6; Pet. Att. 8C at 1-9.) More specifically, Petitioner challenges the late addition of enhancement allegations that a principal used a firearm in the commission of Williams's murder.[7] (Id.)

As a rule, " the Sixth Amendment guarantees a criminal defendant the fundamental right to be informed of the nature and cause of the charges made against him so as to permit adequate preparation of a defense." Gautt v. Lewis, 489 F.3d 993, 1002 (9th Cir. 2007); see also Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948). " When determining whether a defendant has received fair notice of the charges against him, " a federal habeas court " begin[s] by analyzing the content of the information." Gautt, 489 F.3d at 1003 (citing Cole, 333 U.S. at 198). Although the information " need not contain a citation to the specific statute at issue, " it " must in some appreciable way apprise the defendant of the charges against him so that he may prepare a defense accordingly." Gautt, 489 F.3d at 1004. Where a petitioner claims that his rights were violated by a late amendment of the charges, he must show not only an error in amending the charges, but also prejudice under Brecht. See Gautt, 489 F.3d at 1016; Brecht, 507 U.S. at 623.

Here, Petitioner's claim fails for two reasons:

o Fair Notice: First, the original information charging Petitioner with first-degree murder adequately apprised Petitioner that he could be convicted either as a principal or as an aider and abettor. See Carothers v. Rhay, 594 F.2d 225, 229 (9th Cir. 1979); see also Lopez v. Smith, 135 S.Ct. 1, 3, 190 L.Ed.2d 1 (2014) (per curiam). " [I]n California the definition of a principal has historically included those who aid and abet . . . and notice as a principal is sufficient to support a conviction as an aider or abettor." People v. Garrison, 47 Cal.3d 746, 776 n.12, 254 Cal.Rptr. 257, 765 P.2d 419 (1989). Thus, the prosecutor's early focus on a lone-shooter theory did not render inadequate Petitioner's notice of potential aider-and-abettor liability. See Lopez, 135 S.Ct. at 4.
o No Prejudice: Second, Petitioner has made no showing of prejudice. See Brecht, 507 U.S. at 637-38. Petitioner's long-held defense was that he was not present at the shooting. ( See Ex. A at 18.) That defense applied just as forcefully against an aiding-and-abetting theory of culpability as against a principle-offender theory. ( See id.) Nor has Petitioner identified any additional arguments or facts that, given earlier notice, he could have presented as a defense to the principal firearm enhancement allegations. Consequently, this Court cannot find that the information's amendment had a " substantial and injurious effect" on Petitioner's verdict. See Brecht, 507 U.S. at 637-38.

Accordingly, for the above reasons, Petitioner's third and final claim does not merit federal habeas relief.



In accordance with the foregoing, IT IS RECOMMENDED that the Court issue an Order: (1) approving and accepting this Report and Recommendation; (2) directing that Judgment be entered dismissing this action with prejudice; and (3) denying a certificate of appealability. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).


IT IS ADJUDGED that the above-captioned action is DISMISSED WITH PREJUDICE for the reasons set forth in the Magistrate Judge's Report and Recommendation.

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