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Bunn v. Lopez

United States District Court, E.D. California

July 25, 2016

REGINALD THOMAS BUNN, JR., Petitioner,
v.
RAUL LOPEZ, Respondent.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on January 4, 2008 in the Sacramento County Superior Court on charges of first degree murder committed in the commission of a robbery, with an enhancement for personal discharge of a firearm causing great bodily injury or death. He seeks federal habeas relief on the following grounds: (1) the trial court violated his right to a public trial; (2) his trial counsel rendered ineffective assistance in failing to object more aggressively to the trial court’s failure to open the courtroom to more spectators, failing to move to sever petitioner’s trial from the trial of one of his co-defendants, and failing to object to the admission of inflammatory evidence at trial; and (3) his sentence of life without parole plus 25 years-to-life constitutes cruel and unusual punishment in light of the fact that he was a juvenile when the crime was committed.

         Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner’s application for habeas corpus relief be denied.

         PROCEDURAL AND FACTUAL BACKGROUND

         In its unpublished memorandum and opinion affirming petitioner’s judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Reginald Thomas Bunn and Antonio Lamar Minor were convicted of first degree murder (Pen.Code, § 187, subd. (a))[1] of a marijuana dealer named Gamaliel Torres.[2] The jury found true the special circumstance that the murder was committed while Bunn and Minor were engaged in the crime of robbery or attempted robbery within the meaning of section 190.2, subdivision (a)(17). The jury found true the allegation that Bunn and Minor had each personally discharged a firearm (Bunn fired a .357-caliber handgun and Minor fired a .410-gauge shotgun) causing Torres's death within the meaning of section 12022.53, subdivision (d).
Rejecting the claims of Bunn and Minor, who were each 17 years old at the time of the murder, of unconstitutional cruel and unusual punishment, the trial court declined to exercise its discretion to impose a 25-years-to-life sentence and instead sentenced both Bunn and Minor to indeterminate terms of life without the possibility of parole (LWOP) (§ 190.5, subd. (b)), plus 25 years to life for the firearm enhancement. A restitution fine of $10, 000 was imposed under section 1202.4 and a parole revocation fine of the same amount was imposed and stayed under section 1202.45. No credit for time served was awarded.
On appeal, Bunn claims (1) the trial court in effect closed the courtroom to some of the defendant's friends and family violating his constitutional right to a public trial; and (2) his trial counsel provided ineffective assistance by (a) failing to move for severance, and (b) by failing to object and move for exclusion of certain inflammatory bad character evidence. Both Bunn and Minor claim on appeal their LWOP sentence constitutes cruel and unusual punishment and the trial court abused its discretion in rejecting a 25-years-to-life sentence. Both assert, and the People concede, the trial court erred in denying them custody credit for actual time served and by imposing a parole revocation fine when they had been given a LWOP sentence. We shall accept the People's concession of the last two claims and reject all others. With the aforementioned modifications, we shall affirm the judgments.

         FACTUAL BACKGROUND

         The Prosecution's Evidence

On March 9, 2006, at about 10:00 p.m., George Gomez, who lived next door to the parking lot for Chorley Park, heard a male say something in an angry voice, followed by several gunshots. He heard a car rev its engine. When he peered out of his blinds, Gomez saw a dark blue small SUV exit the park. Jasmine Ramos was inside her home near Chorley Park on March 9, 2006. Around 10:00 p.m., she heard gunshots and when she looked out her window, she saw a car that looked like a Ford Explorer speed past.
A little after 10:00 p.m. that same night, Sacramento Police Officer Garrett Dutra was doing a park check at Chorley Park when he noticed a black Toyota pickup parked in the parking lot. Both doors were open and the truck engine was running. When Dutra approached the truck, he saw the driver's window was shattered, although intact, and there was a bullet hole through the window. The driver, who was later identified as 19-year-old Gamaliel Torres, was still seat belted in his seat with his hands in his lap and his head leaning down. Torres was dead from a fatal gunshot wound to the upper left side of his head behind the ear and a fatal shotgun wound to his right arm. It was later determined from stippling surrounding the head wound that the gun had been either in contact with or very close to the glass window at the time Torres was shot. The muzzle of the shotgun was within three to four feet of Torres at the time of shooting. Dutra observed a cell phone headset hanging from Torres's head with no phone attached. Dutra saw blood on the inside of the window and blood dripping from the truck onto the ground.
Torres was a known dealer of marijuana. He used little baggies printed with hearts, skulls and marijuana leaves as packaging. Torres had been wearing a chain necklace that day.
Meanwhile, less than a half mile away from Chorley Park, Sacramento Police Officer Stephen Moore had stopped a dark blue Mercury Mountaineer (SUV) for speeding. Moore approached the SUV and the driver, Mylove-Smith, provided his license and insurance. Moore smelled a strong odor of marijuana and decided to search the SUV. He called for assistance as there were four individuals in the SUV. Mylove-Smith was in the driver's seat, Howard was next to him in the front passenger seat, defendant Bunn was behind Mylove-Smith in the left rear passenger seat, and defendant Minor was behind Howard in the right rear passenger seat. Sacramento Police Officer Brian Laird arrived to assist Moore.
Laird instructed everybody in the SUV to put their hands where the officers could see them, but Minor repeatedly dropped his hands from the back of the seat down to his seat. When the occupants of the SUV were removed, the officers discovered three sandwich-size baggies containing what appeared to be marijuana on the seat where Minor had been sitting. Laird searched Minor and found a cell phone, some change, and a .410 shotgun round in his pants pocket.
About this time, Moore heard Dutra broadcast his discovery of the body at Chorley Park. A subsequent search of the SUV uncovered a shotgun under the front passenger seat, where it would have been accessible only to Minor. The shotgun had blood on the wood part at the front. In the seat pocket in front of where Minor had been sitting, a live shotgun shell was found along with a small baggie stamped with hearts, containing some unidentified purple pills. Under the driver's seat near where Bunn's feet had been, Laird found a black .357-magnum revolver with two live rounds and one spent casing. Moore noticed blood on Bunn's hands and on the fingers of both of Minor's hands. Bunn had blood spatter on both sides of his pants, as well as on his left shoe. Later examination of the SUV disclosed blood stains in the back passenger area in eight places; seven connected with the right rear passenger area and one on the rear driver's side passenger door. DNA testing of the blood found on Minor's hand, Bunn's clothes and shoes and from the interior driver's and passenger's side rear doors of the SUV was conducted and the samples were determined to contain the same DNA profile as Torres.
The search of the SUV also revealed a Sprint cell phone and a chain necklace on the rear passenger's floorboard, where Minor had been sitting, next to a baggie of marijuana. There appeared to be blood on the phone and necklace, as well as on some of the baggies of marijuana in the SUV. A close friend of Torres identified the necklace and cell phone as Torres's phone and necklace. A shoebox in the cargo area of the SUV contained athletic shoes and about 20 small baggies of marijuana, stamped with hearts or marijuana leaves. Bunn's jacket in the rear cargo area contained marijuana packaged in a baggie with red hearts. A backpack with Howard's identification card inside was also found in the cargo area. The backpack contained a plastic baggie with 21 smaller plastic baggies inside, stamped with hearts or marijuana leaves. Beanies and a ski mask were also found inside the SUV.
Later testing showed a large amount of gunshot residue (GSR) on Torres, consistent with his having been shot twice. GSR was also found on Minor's hands, along with a large number of lead particles, consistent with the lead shot pellets of a shotgun. GSR was found on the back of Bunn's hands, but not his palms. The People's expert opined that Minor and Bunn had either fired a weapon, were within the vicinity of a weapon when it was fired or had handled a fired weapon or fired ammunition. One particle of GSR and nine particles of lead were recovered from the rear driver side door of the SUV. Two particles of GSR and over 30 lead particles were recovered from the rear passenger side door. No GSR was detected on the front driver or front passenger side doors. Neither Mylove-Smith or Howard had any GSR on their hands.
At autopsy it was determined that the bullet components recovered from Torres's skull were from a single jacketed bullet fired from the revolver recovered from the SUV. The shotgun shell components removed during autopsy were consistent with the shells used in the shotgun found in the SUV.
Minor's MySpace page included a photograph of himself holding the revolver used in Torres's murder.

         Minor's Defense

Minor testified in his own defense.
On the evening of March 9, Minor called Bunn to ask him for a ride to the store to buy baby formula for Minor's baby, although Minor also planned to smoke some marijuana and hang out before going home. Bunn, Mylove-Smith, and Howard picked Minor up around 8:45 or 9:00 p.m. Bunn told Minor they were going to make a stop before they took Minor to the store. Bunn asked Minor to call Torres for him, explaining that his cell phone was dead. Minor had never met Torres. Minor called Torres and arranged for them to meet Torres at Chorley Park. They drove to the park where they waited about an hour for Torres to arrive. Minor knew Bunn sold marijuana, but did not know who his supplier was.
When Torres arrived, Minor claimed that Mylove-Smith got out of the car and walked to Torres's truck. He came back after a minute and spoke to Bunn. Bunn got out of the car and both he and Mylove-Smith walked back to Torres's truck. Minor then heard three loud bangs. He looked up and saw Mylove-Smith at the passenger side of Torres's truck and Bunn at the driver's window. Bunn was looking at his own shirt. Thinking Bunn might be hurt, Minor got out of the car and ran to the truck. He saw Torres in the truck with his head leaning towards the steering wheel. Minor saw Bunn had a long black gun in his hand and Mylove-Smith was holding a shotgun. Bunn kept reaching in the truck for something. Minor bear-hugged Bunn, trying to get him to leave. Minor got blood on himself in the process. Minor, Bunn, and Mylove-Smith ran back to their car. Bunn put his head down and said “I killed him, blood.” Mylove-Smith drove away from the park.
About 30 seconds after they left the park, Minor became aware that they were being followed by a police officer. He told Mylove-Smith to slow down as he was driving too fast. Mylove-Smith then began tossing baggies of marijuana to the back seat, telling Minor to “hold this.” He also slid the shotgun back to Minor, who grabbed it with both hands and slid it under the seat in front of him. Mylove-Smith tossed some shotgun shells back to Minor who put one in the seat pocket and one in his pants pocket.
Minor claimed the revolver in the MySpace photograph and the shotgun belonged to Bunn. He denied seeing any weapons until after he heard the gunshots and had no idea where they came from.

         Bunn's Defense

Bunn testified in his own defense. He denied shooting Torres.
Bunn testified he sold marijuana in small quantities, mostly at his high school. Torres was his regular supplier and his friend. Torres had delivered two ounces of marijuana to Bunn the night of March 8, the day before the shooting. He also gave Bunn some baggies for packaging. Some of the marijuana and packages were in the shoebox found in the SUV's cargo area the next day.
On March 9, Minor called Bunn asking to buy a quarter pound of marijuana. Bunn told him he did not have that much. Minor asked Bunn to take him to “the Mexican dude” that supplied Bunn. Bunn knew Torres still had eight ounces left to sell and eventually Bunn agreed, hoping for a referral fee. Mylove-Smith, Howard, and Bunn picked Minor up and began to head in the direction of Torres's house, but Minor called Torres and arranged to meet him at Chorley Park. They arrived about 45 minutes before Torres did.
Torres arrived at the park around 10:00 p.m., pulling up behind and to the right of the SUV defendants were in. Bunn rolled down his window to greet Torres. They nodded at each other and Bunn rolled his window back up. Minor got out and went to the passenger side of Torres's truck. Minor went back and forth between the SUV and the truck several times. Mylove-Smith asked Bunn to go see what was taking so long. As Bunn approached the driver's side of the truck, he heard a loud gunshot. He saw Minor run back to the SUV and then back to the driver's side of the truck, where Minor hit the window with a revolver. As Bunn reached up to hit the gun out of Minor's hand, the gun went off.
Bunn opened the driver's door to check on Torres and saw that he was dead. Torres fell towards Bunn, who pushed him back upright. Bunn picked up the revolver from where it had fallen on the ground and got back in the SUV. Bunn placed the revolver on the back seat near Minor and told Minor: “You killed him.” Once the police were behind them, Minor put the gun on the floorboard in front of Bunn. Bunn kicked it under the seat.
Bunn denied ever seeing the revolver or shotgun before this night.

(Doc. 17-1 (hereinafter Opinion) at 1-11.)

         ANALYSIS

         I. Standards of Review Applicable to Habeas Corpus Claims

         An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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.

         For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings of the United States Supreme Court at the time of the state court decision. Greene v. Fisher, ___ U.S. ___, ___, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “Circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, U.S. ___, ___, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Marrhews, U.S. ___, ___, 132 S.Ct. 2148, 2155 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverted in their treatment of an issue, it cannot be said that there is “clearly established Federal law” governing that issue. Carey v. Musladin, 549 U.S. 70, 77.

         A state court decision is “contrary to” clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634');">538 U.S. 634, 640 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). 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.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

         If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.”).

         The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be overcome by a showing “there is reason to think some other explanation for the state court’s decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).

         Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of “showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

         When it is clear, however, that a state court has not reached the merits of a petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

         II. Petitioner’s Claims

         A. Right to a Public Trial

         Petitioner’s first claim for federal habeas relief is that the trial judge violated his right to a public trial when he refused to allow more of petitioner’s family members and friends to attend the trial, even though there were empty seats in the courtroom. (Doc. No. 8 (hereinafter Pet.) at 5. Petitioner raised this claim for the first time on direct appeal. The California Court of Appeal explained the background to the claim as follows:

         Background

After the selection of the three juries impaneled for this case (one for Howard, one for Mylove-Smith and one for Bunn and Minor), counsel for Bunn pointed out that only six seats were left available for the public. Counsel stated there probably would not be enough room for “even representative family members.” Recognizing the difficulties of having multiple juries, counsel felt that “we ought to open up some of the additional seats that are blocked off in here so more of the public can get in.” He suggested the better solution was to get a bigger courtroom or to not do the trials all at once.
The trial court noted “it's now 9:15 on the day that we are going to start this case, and we had known all along we were going to do this case in this courtroom. [¶] And I appreciate that there is not enough room for everybody who wants to be here. We have set aside about, I think we got at least eight seats, allowing for buffers, for members of the public who want to be here.” The trial court found “we are not impacting anybody's constitutional rights to the extent it's going to require a continuance of this case, or removal of this case from this courtroom to another courtroom.”
Counsel for codefendant Howard then expressed the interest of the Howard family in having more than two seats for their family representatives “so that friends and the church bishop and others may come and show their support . . . .” Counsel for codefendant Mylove-Smith observed that “of the eight seats . . . available, two of them are going to be earmarked for the victim and the victim's family, so I believe that probably leaves six for the [defendants'] family.” The court replied that the victim's father and someone from victim services wanted to be present “for today alone[.]” There would otherwise be eight seats available, two for each defendant.

(Opinion at 11-12.)

         Petitioner states that a number of his friends and family members were unable to attend the trial, or as much of the trial as they wished to attend, because of the trial court’s ruling limiting the available seats to two per defendant. (Pet. at 16.) He explains that several of his supporters tried to enter the courtroom during the trial proceedings but were turned away by the bailiff because of an ostensible lack of available seating. (Id.) He also notes that the trial court did not justify the need for a buffer zone of seats, or even explain what or whom those seats were for, and he observes that there were empty seats in the courtroom during the course of the trial. (Doc. No. 26 (Traverse) at 6.) Petitioner argues,

The partial closure of the courtroom during the majority of the trial proceedings violated petitioner’s right to a public trial. There was no state interest, compelling or otherwise, that justified keeping the entire front two rows of the courtroom empty when petitioner’s friends and family members were waiting to enter the courtroom.”

Pet. at 18. Petitioner points out that no federal case holds that “a trial court may block off rows of seats in the courtroom upon a defendant’s objection without stating a justification for the closure, thereby preventing interested friends and family members from attending a criminal defendant’s trial.” (Traverse at 9-10.) Petitioner informs that court that “more than 25 people” wanted to attend his trial. (Pet. at 5). He also notes that “no seats were made available for the press or general public.” (Traverse at 6.)

         The California Court of Appeal rejected these arguments, reasoning as follows:

         Analysis

Bunn now claims on appeal that his constitutional right to a public trial was violated by the trial court's refusal to open up additional courtroom seats or to consider other alternatives that would provide more space for defendant's family, ...

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