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Carlson v. Attorney General of State of California

United States Court of Appeals, Ninth Circuit

June 26, 2015

LEIF THURSTON CARLSON, SR., Petitioner-Appellant,

Argued and Submitted, San Francisco California; November 20, 2014.

Appeal from the United States District Court for the Northern District of California. D.C. No. 3:11-cv-02976-CRB. Charles R. Breyer, Senior District Judge, Presiding.


Habeas Corpus

The panel affirmed the district court's denial of Leif Carlson, Sr.'s habeas corpus petition challenging his conviction for willful infliction of harm or injury to a child, in a case in which the trial court, invoking the forfeiture-by-wrongdoing doctrine, determined that Carlson had surrendered his Sixth Amendment right to confront his wife and son who did not appear in court but whose statements were admitted through the testimony of a police officer.

The panel held that Supreme Court authority clearly establishes that the forfeiture-by-wrongdoing doctrine applies where there has been affirmative action on the part of the defendant that produces the desired result, non-appearance by a prospective witness against him in a criminal case; and that simple tolerance of, or failure to foil, a third party's previously express decision either to skip town himself rather than testifying or to prevent another witness from appearing is not a sufficient reason to foreclose a defendant's Sixth Amendment confrontation rights at trial.

The panel held that because the trial court could have reasonably inferred on the record before it that Carlson directly participated in securing his wife's and son's absence, and because Supreme Court authority permits application of the forfeiture-by-wrongdoing exception in such circumstances, admission of their statements was not an objectively unreasonable application of Supreme Court precedent.

Mark McBride (argued), Kavinoky Law Firm, Encino, California, for Petitioner-Appellant.

Jill M. Thayer (argued), Deputy Attorney General; Kamala D. Harris, Attorney General; Gerald A. Engler, Senior Assistant Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General, San Francisco, California, for Respondent-Appellee.

Before: Marsha S. Berzon and Johnnie B. Rawlinson, Circuit Judges and Elaine E. Bucklo,[*] Senior District Judge. Opinion by Judge Berzon.


Page 1004

BERZON, Circuit Judge:

One early Sunday afternoon, Joshua Barragan (" Joshua" ) called the Moraga Police Department to report that his stepfather, Leif Carlson, Sr. (" Carlson" ), had hit seven-year-old Leif Carlson, Jr. (" Leif Jr." ) in the face. When Officer Ronald Ward arrived on the scene, he observed redness and bruising on Leif Jr.'s left cheek. The state charged Carlson--Leif Jr.'s father--with willful infliction of harm or injury to a child, Cal. Penal Code § 273a(b).

The case went to trial. Carlson's wife, Lena Carlson (" Lena" ), and Leif Jr. were subpoenaed to testify but never appeared in court. Invoking the Supreme Court's forfeiture-by-wrongdoing doctrine, the trial court determined that Carlson was complicit in their absence, and that he had surrendered his Sixth Amendment right to confront them. Accordingly, the trial judge allowed Officer Ward to testify to statements made by Leif Jr. and Lena in the hours after the incident.

Carlson was convicted and sentenced to ten days' jail time and four years' probation. The Appellate Division affirmed the judgment, the Court of Appeal denied a petition for writ of mandate, and the California Supreme Court denied habeas relief.

Page 1005

Carlson then timely filed a federal habeas petition. See 28 U.S.C. § 2254. The district court denied the petition, concluding that the trial court's determination that Carlson forfeited his Confrontation Clause rights was not an unreasonable application of the Supreme Court's forfeiture-by-wrongdoing doctrine as articulated in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).

We affirm. Simple acquiescence in another's wrongful conduct designed to keep a witness from testifying does not amount to forfeiture by wrongdoing. But the state court's ruling on the forfeiture question, while murky, is consistent with a finding that Carlson engaged in more culpable conduct. The evidence supporting such a finding was not trifling. Under the highly deferential standard of review required by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), we can grant habeas relief only if we find that the state court's decision was contrary to, or an unreasonable application of, Supreme Court precedent, or that the factual findings on which the decision relied were unreasonable in light of the evidence. 28 U.S.C. § 2254(d). Because we cannot say that the state court's decision was unreasonable under that standard, we must affirm the denial of the habeas petition. See Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).


A. The Incident

The incident underlying Carlson's conviction occurred while Carlson was supervising Leif Jr.'s guitar practice. The two were tired, having arrived home earlier that morning from Cub Scouts camp. According to Carlson's testimony, when he attempted to correct Leif Jr.'s hand positioning, Leif Jr. started yelling, " literally screaming in [Carlson's] ear." Carlson struck Leif Jr. on the left cheek with the back of his hand or with his fist. Leif Jr. began to cry.

Joshua--one of three Carlson stepchildren living with Carlson and his wife--called the police. Officer Ward of the Moraga Police Department arrived on the scene, briefly questioned the family, and then placed Carlson under arrest. After securing Carlson in his car, Ward returned to the house to take further statements from Leif Jr. and his mother, Lena. It is the admissibility of these statements, detailed below, that underlies this appeal.

Carlson was charged with willful infliction of harm or injury to a child, Cal. Penal Code § 273a(b), an offense that requires, the jury was instructed, proof that " the defendant wilfully inflicted unjustifiable physical pain or mental suffering on a child," and that he " did not act while reasonably disciplining a child."

B. Pre-Trial Proceedings

The trial was set for Thursday, July 9, 2009, in the Contra Costa County Superior Court. Carlson did not appear. An order to show cause for non-compliance issued, and trial was reset for Tuesday, July 14th.[1] Subpoenas were issued for Lena and Leif Jr. to appear as witnesses. One subpoena was addressed to Lena, ...

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