United States District Court, E.D. California
JAMES K. SINGLETON, Jr., Senior District Judge.
Anton Johnson, Sr., a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Johnson is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at the Richard J. Donovan Correctional Facility. Respondent has answered, and Johnson has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On November 16, 2007, Johnson was charged with committing several sexual offenses under the One Strike Law on two separate occasions in 1999 and 2000 against two separate victims. As to victim Terri Doe, the information charged Johnson with aggravated kidnapping to commit rape (count 1), forcible oral copulation (count 2), forcible rape (count 3), sexual battery (count 4), and second-degree robbery (count 5). The offenses against Terri were alleged to have occurred on April 29, 2000. As to victim Virginia Doe, the information charged Johnson with aggravated kidnapping to commit forcible oral copulation (count 6), sexual battery (count 7), three counts of forcible oral copulation (counts 8 through 10), and two counts of forcible sexual penetration (counts 11 and 12). The offenses against Virginia were alleged to have occurred on March 5, 1999. The pleading also alleged as to counts 2 and 3 involving Terri and counts 8 through 12 involving Virginia that Johnson kidnapped the victim and that such kidnapping substantially increased the risk of harm to the victim. The pleading further alleged that Johnson committed sex offenses against multiple victims. Johnson pled not guilty to all charges and denied all allegations.
Johnson first proceeded to a jury trial in October 2007. On December 3, 2007, after several days of deliberations, the court declared a mistrial based on the jury's inability to reach a unanimous verdict on any count.
In April 2008, Johnson was retried before a different judge and jury. On direct appeal of his conviction, the California Court of Appeal recounted the following facts regarding the evidence presented at Johnson's retrial:
In March 1999, Virginia Doe was having "issues" with her young child's father, John Robinson, about his relationship with another woman, Claudette Romo. A restraining order prohibited Virginia from having any contact with Romo.
In the early morning of March 5, 1999, Virginia was distraught because she believed her child and Robinson were spending the night with Romo and the restraining order prohibited Virginia from going to Romo's to retrieve her child. Around 4:26 a.m., she drove to the parking lot of a convenience store located at the same intersection as the apartment complex where she suspected Romo lived. The store was closed, and Virginia used a pay phone outside to call 9-1-1 in the hope that law enforcement officers would help her retrieve her child. The dispatcher informed Virginia that her situation was not an emergency and directed her to call the non-emergency number. When she did, the second dispatcher was not helpful either.
Virginia testified that a black Ford Thunderbird carrying [Johnson] and two other men drove into the parking lot before she made the second phone call. [Johnson] got out, "asked [her] if [she] was somebody, " and when she told him "no, " he got back in the car and drove away. The car came back while she was making the second call. [Johnson] got out, and the car drove away.
[Johnson] stood by the other pay phone while Virginia spoke to the second dispatcher. After the call ended, [Johnson] offered her money to make another call. She declined. When Virginia started to leave, [Johnson] hit her head with the handset from the pay phone. She fell to the ground, "lost focus for a few minutes, " and [Johnson] dragged her to the side of the store. He beat and choked her with both hands, then pulled her by her hair to a dark alley behind the store. [Johnson] forced Virginia to get on her knees and then made her orally copulate and masturbate him. At one point, he forced her to rise, and he put his mouth on her breasts and inserted his fingers in her vagina. He threatened to rape her, stating "it would be so easy for him to kill [her] and throw [her] behind the garbage can...." [Johnson] eventually ejaculated in her mouth.
After the assault, [Johnson] seemed like a "changed person, " apologizing and telling her he would help get her daughter back. He told her to walk to the front of the store with him, but not too far because there were security cameras. As they crossed the street towards the apartment complex, Virginia turned, ran back to her car, and drove away at 5:11 a.m. She drove to a gas station and asked the attendant to call 9-1-1. The police received the call at 5:19 a.m. Law enforcement officers were dispatched to the gas station and contacted Virginia, who was hysterical, had a cut near her left eyebrow, and had bloodstains on her shirt.
Then-Detective Robert James went to the convenience store and retrieved a videotape from the surveillance camera. The camera was mounted on the rear interior store wall and had only a limited view of the parking lot through the front windows. Someone lost the videotape between the initial investigation in 1999 and [Johnson's] first trial in 2007, but James had written a report about its contents. He testified that Virginia's vehicle entered the parking lot at 4:26 a.m. and stopped in front of the pay phones. However, the pay phones and Virginia were not visible on the tape because the camera captured only the rear of the car after she parked. A few minutes later, a second vehicle, which appeared to be a black Thunderbird, entered the parking lot and stayed only a brief period of time. Virginia's vehicle left the parking lot at 5:11 a.m.
Virginia was taken to the hospital at 6:10 a.m. where she was examined by nurse Nancy Siegel, who collected DNA swabs from inside Virginia's mouth and vagina, and from both breasts. Virginia had a small laceration below her left eyebrow that required sutures. She had purple swelling with tenderness under her left eye, a small purple mark inside her right cheek, and an area of redness and swelling outside of her vagina. She also had an abrasion on her right knee and one on her right elbow, as well as red or purple marks on the back of her legs. Her injuries were consistent with the sexual assault she described.
In 2006, forensic testing revealed [Johnson] was the source of the DNA collected from Virginia's right breast.
[Johnson] sexually assaulted another woman in April of 2000, while he was dating a young woman named Roni Huckabay. At least twice a year, he expressed an interest in having Huckabay engage in sexual activity with him and another woman. He frequently attacked Huckabay physically, hitting her head, choking her, punching her, knocking her out, and inflicting sores on her arms, back, and head. [Johnson] also assaulted Huckabay verbally, by threatening to hurt or kill her father, and telling her he wanted to rape her mother.
On April 29, 2000, while driving Huckabay home at 2:30 a.m., [Johnson] told her "he wanted to pick up a prostitute." Huckabay asked that [Johnson] just take her home, and he became angry and pushed or hit her. He drove around while "scanning the roads, looking around very serious."
At the same time, Terri Doe was walking to work on Fulton Avenue in Sacramento. [Johnson] drove past her, turned into a side street, and parked the car. He grabbed Huckabay's arm and held on to her, making her run with him across the street towards Terri. [Johnson] released Huckabay's arm and grabbed Terri from behind, wrapping both of his arms around her and moving her to an alley between two buildings. [Johnson] leaned Terri against the wall and struck her in the mouth with the back of his hand. He told her he was doing this for some guy that she had ripped off, but she had no idea what he was talking about. Huckabay told her they would cut her throat if she did not cooperate.
While Terri was sitting on the ground, [Johnson] attempted unsuccessfully to insert his penis in her mouth. [Johnson] got on top of her and raped her, while telling Huckabay to kiss her. Huckabay complied and placed her mouth on Terri's mouth and breasts. [Johnson] also licked Terri's breasts. He stopped assaulting her after he ejaculated. [Johnson] stole Terri's identification cards and threatened to kill her if she reported the assault.
After the attack, Terri ran to her worksite. When Deputy Michael Baerresen responded to the report of a sexual assault, he found Terri "very upset and crying." Throughout the interview, she "would burst into periods of anger and swearing at what had happened, then she'd start to cry again."
Nurse Siegel examined Terri at 6:45 a.m. and collected swabs from inside of Terri's mouth and vagina, and from both breasts. Terri had an abrasion on her left knee and right arm, and red marks on her right arm, her back, and inside of her lower lip. Siegel opined that the injuries were consistent with the sexual assault Terri described.
In 2006, forensic testing confirmed that [Johnson] was the source of the DNA collected from Terri's breasts and vagina, and also confirmed that Huckabay's DNA was on Terri's left breast. The prosecution initially charged Huckabay as an accomplice to the crimes involving Terri, but later dismissed the charges when she agreed to testify at [Johnson's] trial.
[Johnson's] former wife, Julie Johnson, testified [Johnson] asked her on several occasions to have sex with him and another woman, who was a relative stranger. She refused. She also related that one day in 1991, their car caught fire at a stoplight while [Johnson], Julie, and their daughter, April, were in the car. [Johnson] stayed with the car, and Julie took April and walked to her parents' home where they were all living. When [Johnson] eventually arrived home, Julie was in the bathroom. [Johnson] was angry and came into the bathroom holding a handgun. He told Julie that if she "caused a scene or call[ed] the cops, that he could blow [her] away." He "directed the gun towards [her] head and asked for some oral sex." She was scared but refused, whereupon he told her there was a bullet in the chamber. He also said that he could kill her family. When Julie saw her parents pulling into the driveway, she managed to escape and run outside to them, and then she called the police.
Romo testified that Virginia once told her that she had considered making a report of domestic violence against Robinson, based on bruises she incurred from when they were "messing around."
Robinson, who had three children with Virginia, ranging in age from three and a half years to seventeen years, testified they had an on-and-off relationship. He stated that she keyed his car after seeing him at a nightclub, and called him 20 to 30 times a day at work, threatening to cause problems for him with his employer. He also said that Virginia made a false report of domestic violence against him and that, on several occasions, she threatened to make additional false reports.
Robinson acknowledged that he was dating Romo during some of the problems he experienced with Virginia and that, from Virginia's perspective, he was cheating on her. He admitted he had a felony grand theft conviction and was convicted of domestic violence against a woman in February 1994. He claimed he was not sure who the victim was, but conceded he was in an intimate relationship with Virginia at that time.
Leonora Hoyt testified that on the morning that Virginia was assaulted, Hoyt and her husband drove through the alley behind the convenience store before her husband dropped her off for work at a nearby daycare center, between 5:00 and 5:30 a.m. They did not see or hear anything unusual. However, the alley was dark, the car's headlights provided the only illumination, the car's windows were rolled up, and it was her custom to talk with her husband during the commute.
Terri Sadler, the area manager of the business where Terri Doe worked, supervised about 60 employees, including Terri. Sadler had only a vague recollection of the day that Terri was assaulted, but believed Terri appeared disheveled when she arrived at the office that morning. Sadler did not recall whether she personally spoke with Terri, but she believed that Terri wanted to go home rather than report the assault and had to be persuaded to make a report. Sadler fired Terri for excessive absenteeism about six months later in October 2000.
At the time she was sexually assaulted by [Johnson], Terri had methamphetamine in her blood.
Defense counsel sought to cast doubt on the credibility of Virginia, Terri, and Julie, each of whom had felony convictions or misdemeanor convictions involving moral turpitude. Counsel conceded [Johnson] had sexual contact with Terri and Virginia, but argued it was consensual.
People v. Johnson, No. C059147, 2010 WL 1692165, at *1-5 (Cal.Ct.App. Apr. 28, 2010).
On May 6, 2008, the second jury found Johnson guilty of counts 1, 3 through 5, and 7 through 12. It also found true all of the special allegations tied to those counts. While it found Johnson not guilty of counts 2 and 6, it convicted him of the lesser-included offenses of those counts, attempted forcible oral copulation and simple kidnapping, respectively.
The trial court subsequently sentenced Johnson to an aggregate imprisonment term of 81 years and 6 months to life, calculated as follows: two consecutive One Strike terms of 25 years to life on counts 3 and 8; two consecutive terms of 8 years on counts 9 and 10; two consecutive terms of 6 years on counts 11 and 12; a consecutive term of 1 year and 6 months on count 2; and 2 consecutive terms of 1 year on counts 5 and 7. Pursuant to Penal Code § 669, the court imposed a concurrent sentence for count 4, and it stayed the sentence for counts 1 and 6 under Penal Code § 654.
Through counsel, Johnson appealed his conviction, arguing that: 1) the trial court erred in admitting as propensity evidence an uncharged act of sexual violence against his ex-wife; 2) the trial court likewise erred in admitting evidence of domestic violence as probative of Huckabay's credibility; 3) the court denied him of his rights to a fair trial, to present a defense, and to confront his victims when it excluded certain impeachment evidence; 4) the trial court erred in denying his motion to strike police opinion testimony relating to Terri's credibility; 5) the trial court should have dismissed the charges or imposed sanctions due to the loss of certain evidence; 6) the prosecutor committed prejudicial misconduct during summation; 7) the trial court erroneously instructed the jury regarding the prior act of sexual violence on his ex-wife; 8) the trial court erroneously instructed the jury on the limited purposes for which it could consider evidence regarding group sex; 9) the trial court erroneously instructed the jury on the circumstances it could consider in determining whether Johnson committed a simple kidnapping of Virginia; 10) California law defining the asportation elements of simple and aggravated kidnapping are unconstitutionally vague; 11) the trial court erred in failing to hold a Marsden  hearing on his request to substitute counsel; 12) the cumulative effect of the asserted errors deprived Johnson of due process and warranted reversal of the judgment; 13) the robbery conviction under count 5 was barred by the statute of limitations; 14) the sentence for attempted forcible oral copulation in count 2 was unauthorized; and 15) the sentencing court orally imposed an unauthorized term of life without parole on count 1.
The State conceded that, with regard to claim 9, the trial court erroneously instructed the jury on the circumstances it could consider in determining whether Johnson committed a simple kidnapping of Virginia under Penal Code § 207. As to claim 13, the State also agreed that the robbery conviction must be reversed but argued that the matter should be remanded for the trial court to give the prosecutor the option of presenting evidence that an arrest warrant issued against Johnson was within the statute of limitations. The State also acknowledged that Johnson's sentencing challenges in claims 14 and 15 had merit such that the sentencing abstract should be corrected. The State opposed the appeal in all other respects.
On April 28, 2010, the Court of Appeal issued an unpublished, reasoned opinion reversing the robbery conviction (count 5) and the simple kidnapping count involving Virginia (count 6), as well as the kidnapping enhancements on counts 8 through 12. Johnson, 2010 WL 1692165, at *30. It also directed the trial court to modify the abstract of judgment to correct the sentencing errors. The appellate court affirmed the judgment in all other respects. Counsel for Johnson then petitioned for review to the California Supreme Court, raising all claims unsuccessfully raised before the Court of Appeal. The supreme court summarily denied review on August 11, 2010.
Johnson, proceeding pro se, filed in the California Supreme Court a petition for a writ of habeas corpus dated June 16, 2011. In that petition, Johnson alleged that his trial counsel was ineffective for failing to: a) investigate the elements and statute of limitations of the charges against him; b) offer "stronger grounds" in support of his objections to the court's preclusion of proffered impeachment evidence; and c) call an "independ[e]nt expert to evaluate the physical evidence." Johnson additionally re-asserted his claim that the trial court erred in precluding him from introducing certain impeachment evidence and also raised a new claim that the trial court improperly prevented Johnson from communicating with his counsel at trial. The Supreme Court denied the petition without comment on November 16, 2011.
On February 10, 2012, Johnson timely filed a pro se Petition for a Writ of Habeas Corpus to this Court.
In his pro se Petition, Johnson raises four general grounds for relief that involve numerous subclaims. First, he argues that the trial court committed a myriad of reversible errors. He next argues that the prosecutor committed prejudicial misconduct in a number of ways. Third, he alleges that his trial counsel was ineffective for a variety of reasons. Finally, Johnson alleges that the existence of cumulative error warrants reversal of his conviction.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Ground 1. Court Errors
In his first ground for relief, Johnson argues that the trial court committed a myriad of errors which warrant reversal of his conviction.
A. Violations of Rights to Confrontation and to Present a Defense (First, Second, and Fourth Errors)
In support of his first ground, Johnson contends that his rights to present a defense and confront the witnesses against him were violated by three of the trial court's evidentiary rulings. The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him...." U.S. CONST. amend. VI. It is well settled that, under the Sixth Amendment, an accused has the right to present witnesses, testimony and other evidence in his defense. See Washington v. Texas, 388 U.S. 14, 19 (1967). However, "[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 409-10 (1988). States have considerable latitude under the Constitution to establish rules excluding evidence from criminal trials. Holmes v. S. Carolina, 547 U.S. 319, 324 (2006). "Thus, a trial judge may exclude or limit evidence to prevent excessive consumption of time, undue prejudice, confusion of the issues, or misleading the jury. The trial judge enjoys broad latitude in this regard, so long as the rulings are not arbitrary or disproportionate." Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005) (citations omitted); see Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (holding due process rights are not violated by exclusion of relevant evidence where probative value is outweighed by danger of prejudice or confusion).
Federal Rule of Evidence 403, the federal counterpart to California Evidence Code section 352, permits the exclusion of evidence if its probative value is "substantially outweighed by a danger of... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." "A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules. Assessing the probative value of [the proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403...." United States v. Abel, 469 U.S. 45, 54 (1984); see Boyd v. City and Cnty. of San Francisco, 576 F.3d 938, 948 (9th Cir. 2009). California employs a similar rule. See People v. Harris, 118 P.3d 545, 565 (Cal. 2005) ("We review for abuse of discretion a trial court's rulings on the admissibility of evidence.").
In Wood v. Alaska, 957 F.2d 1544, 1549-50 (9th Cir. 1992), the Ninth Circuit laid out a two-part inquiry to determine whether a petitioner's Sixth Amendment rights are violated by restricted cross-examination. The first inquiry is whether the evidence is relevant. See id. at 1550. If the evidence is relevant, the next inquiry is whether other legitimate interests outweigh the defendant's interest in presenting the evidence. See id.
i. Virginia's Recent Offense (First Error)
Johnson first argues that the trial court denied him of a fair trial by improperly restricting his right to present evidence that one of the victims, Virginia, had committed an assault and had been released on bail hours before she encountered Johnson. On direct appeal of his conviction, the Court of Appeal considered and rejected this claim as follows:
[Johnson] also sought to introduce evidence that, on the date of the attack on Virginia, she had just been released on bail after attacking Romo in violation of the restraining order that required her to stay away from Romo. Despite being warned to stay away from Romo, she immediately went to a pay phone across the street from Romo's apartment and attempted to get police assistance in retrieving her child. [Johnson] believed that it was necessary to provide this background to demonstrate Virginia had a desperate motive to enlist ...