Fallas Paredes (count 6)
On the evening of March 4, 2008, Teresa Jackson
and Elaine Marinucci were working at Fallas
Paredes in Vacaville. A man came in whom
Marinucci identified at trial as appellant.
Jackson described the man as African American,
about five feet eight or nine inches tall,
weighing in “the two hundreds, ”
wearing a sweater and a black beanie. Marinucci
testified that the man was in his 40s or 50s and
was wearing a dark knit beanie and blue or black
athletic pants, and a gray tee shirt, and he had
a key ring around his neck.
Marinucci was at the register when appellant
entered the store. Jackson greeted him and
testified that he said he was looking for his
wife. Jackson went to the back of the store and
appellant came to the counter and asked for
change for the pay phone. Marinucci thought this
was “funny” because he already had
two dimes and a nickel, but asked her for
quarters. She had an “inner feeling”
that “just didn't feel right.”
She opened the register to give him the change,
and he reached over the counter and grabbed money
from the register. She put her hand on his hand
and he reached over with his hand in his pocket
and told her, “Chill, man. I have a
gun.” She let go, not wanting to risk
getting shot if he had a gun. She thought he
could have a gun because he kept one hand in his
pocket and she saw a “big bulge.” He
told her not to call the police and ran out the
door. Jackson came out of the office to see the
man leaving the store with money in his hand.
Jackson was in the back during the robbery and
was not in fear until after it happened. She told
the police the man was 35 or 40 years old, and
that his face was shaved, possibly with
“little specks coming in” but nothing
around his mouth.
Marinucci recognized exhibit No. 15 as the photo
lineup she was shown by the police. She testified
that she identified appellant in the lineup,
although exhibit No. 15 bears no mark indicating
an identification. She identified appellant in a
live lineup a few days later.
Jackson first testified that she did not remember
being shown a series of photographs, then, when
shown the photographic lineup in exhibit No. 17,
testified that she saw it but did not remember
being able to identify anyone. She testified that
if she had identified anyone, she was being
honest. She attended a live lineup, which she
remembered because she did not want to do it. She
explained to the police, as she had when shown
the photographs, that she did not know exactly
what the robber looked like, having only greeted
him while rushing to get her job done and go
home. Following instructions that directed her to
put a question mark on the lineup form if she saw
someone similar to the robber but she was not
positively sure, she put a question mark on
number 2.
Officer Polen, who created the photographic
lineup in exhibit No. 17 using appellant's
March 12 booking photo, testified that
appellant's photo was in the number three
position. When Officer Polen showed the lineup to
Jackson on March 13, she went back and forth
between numbers one and three, but settled on
number three. Polen testified that he always
asked witnesses if they understood the
admonitions he gave before showing a lineup, and
would not show a lineup if the witness did not
understand the admonitions. Jackson was
“pretty confident” about her
selection, but asked to view a live lineup to be
sure of her identification, and attended the
lineup on March 27.
Toward the beginning of Jackson's testimony,
the prosecutor commented that she kept looking to
the prosecutor's left and asked why. Jackson
said she was “just looking around”
and “just nervous.” Jackson
acknowledged that she had been subpoenaed to
appear in court the preceding Tuesday, but did
not appear that day, Wednesday or Thursday; then
she received a call telling her she might get in
trouble if she did not come.
Defense
Mitchell Eisen, Ph. D., testified as an expert on
eyewitness identification, memory and
suggestibility. He testified that, according to
the research, in traumatic situations, stress
overwhelms coping mechanisms and people tend to
focus on key elements of the event, limiting the
information taken in. Longer exposure to a person
will generally increase the chance of a witness
being able to differentiate the person from
others later. Reports given closer in time to the
event tend to be more complete and accurate, both
because the information is “fresher”
and because such reports are less influenced by
post-event information from seeing pictures,
talking with others and imagining the event.
According to Eisen, it is well understood that
when given an identification task such as a
lineup, a person will assume the police know
something and the suspect is likely there. This
is why a standard admonishment is given directing
the witness not to assume the guilty party is
present, but the admonishment will not
necessarily outweigh the assumption. Often,
witnesses who do not immediately recognize anyone
in a lineup will stick with the task, comparing
the options and choosing the one who most closely
matches their memory, even if the actual
perpetrator is not among the choices. Research
has also demonstrated that a person's memory
for a face cannot be tested more than once
without the potential for that exposure to
influence future identifications: Once a witness
has been exposed to a person's face, that
face will be familiar to the witness and the
witness may pick it in a subsequent
identification simply for that reason.
Additionally, the officer conducting the
identification procedure may inadvertently give
cues to the witness. More errors in
identification occur where the witness is of a
different race than the perpetrator.
Eisen further testified that research
demonstrates people tend to stick with their
initial identification in future ones, striving
for consistency and searching for the previously
identified person. The identified person becomes
the face of the perpetrator in the witness's
mind, overriding the witness's memory of the
actual event. Where the initial identification
was mistaken, the witness may confuse the
identified face with the face of the actual
perpetrator. A person's confidence in his or
her identification is not related to accuracy,
and people tend to become more certain about
their identifications over time regardless of
whether the identifications were accurate and
even if the initial identification was tentative.
Also, over time the witness may be exposed to
information that is interpreted as confirming the
identification, such as learning someone else
identified the same person. Research shows that a
person's confidence in his or her
identification can be artificially boosted or
undermined by giving feedback indicating the
choice was correct or incorrect.
People v. Bazemore, No. A132865, 2013 WL
3778353, at **1-6 (Cal. 1st Div. July 17, 2013).
II.
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. 1, 5 (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 last reasoned state
court decision. Thompson v. Runnels, 705
F.3d 1089, 1096 (9th Cir. 2013) (citing
Greene v. Fisher, ___U.S. ___, 132 S.Ct.
38 (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, 133 S.Ct. 1446,
1450 (2013) (citing Parker v. Matthews,
132 S.Ct. 2148, 2155 (2012) (per curiam)). 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 diverged 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 (2006).
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.[8]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).
In this regard, 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 785
(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.
A
summary denial is presumed to be a denial on the
merits of the petitioner’s claims.
Stancle v. Clay, 692 F.3d 948, 957 &
n. 3 (9th Cir. 2012). While the federal court
cannot analyze just what the state court did when
it issued a summary denial, the federal court
must review the state court record to determine
whether there was any “reasonable basis for
the state court to deny relief.”
Richter, 562 U.S. at 98. This court
“must determine what arguments or theories
... could have supported, the state court's
decision; and then it must ask whether it is
possible fairminded jurists could disagree that
those arguments or theories are inconsistent with
the holding in a prior decision of [the Supreme]
Court.” Id. at 102. The petitioner
bears “the burden to demonstrate that
‘there was no reasonable basis for the
state court to deny relief.’”
Walker v. Martel, 709 F.3d 925, 939 (9th
Cir. 2013) (quoting 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).
III.
Petitioner’s Claims
A.
Improper Joinder
Petitioner
claims in his first ground for relief that the
trial court violated his due process right to a
fair trial when it denied his motion to sever the
two counts of attempted robbery at the Tommy
Bahama store from trial on the remaining counts
of robbery. ECF No. 1 at 6, 13; ECF No. 18 at
4.[9] He argues that consolidating
the attempted robbery and the robbery counts in
one trial “bolster[ed] the weaker counts
with a stronger one” and
“dramatically increase[d] prejudice.”
Id. at 5.
The
California Court of Appeal denied this claim,
reasoning as follows:
Appellant contends the trial court abused its
discretion in consolidating trial of the four
incidents in this case. In appellant's view,
the attempted robbery at Tommy Bahamas was a much
stronger case against him than the other three
incidents. The attempted robbery was captured on
a surveillance video, depicting the perpetrator
wearing clothing that matched clothing later
seized from appellant's bedroom. By contrast,
appellant was connected to the three robberies
solely by eyewitness testimony which appellant
characterizes as “not particularly
strong.” Appellant argues that
consolidation was prejudicial because it allowed
the three weaker cases to be bolstered by the
stronger case, and because appellant was
prosecuted for several offenses rather than a
single one. Additionally, appellant urges that
because all the incidents were “garden
variety” robberies of commercial
businesses, with no distinctive features,
evidence of the incidents would not have been
cross-admissible on issues of identity or modus
operandi if they had been tried separately, and
that little economy was gained by trying the
cases together.
As indicated above, appellant was initially
charged in two separate cases, one concerning the
attempted robberies at Tommy Bahamas and the
robberies of Sally's and Fallas (case No.
SCR253307) and the other concerning the robbery
of Entenmann's (case No. FCR253732). Prior to
the preliminary hearing, the prosecution moved to
consolidate the two cases. In opposition,
appellant argued that consolidation would be
prejudicial and improper because it was unlikely
any evidence would be cross-admissible, trying
multiple cases based only on eyewitness testimony
together would bolster relatively weak individual
cases, and the evidence from one robbery had
nothing to do with the others. The motion to
consolidate was denied, the court expressing
particular concern about the fact that different
witnesses described the suspect having a Band Aid
in different places on his face, which the court
felt could easily confuse the jury, and prejudice
appellant, because of the “difficulty of
keeping that sort of significant factor related
to eyewitness testimony separated from one case
to the next.” After the prosecution filed
the information in case No. SCR253307, appellant
moved to sever the counts of attempted robbery
(Tommy Bahamas) from the counts of robbery
(Sally's and Fallas). He argued that evidence
would not be cross-admissible on the question of
identity because the incidents were not
sufficiently similar in terms of description of
the suspect or method used and there was no
common physical evidence; the stronger evidence
of the attempted robbery, which included the
surveillance video and clothing seized from
appellant's home, would bolster the robbery
cases, which depended only on imperfect
eyewitness testimony; and the similarity of the
charges and number of witnesses created a danger
of juror confusion.
The prosecution countered that there was
cross-admissible evidence in that appellant was
identified as a suspect through evidence from
both the Fairfield and Vacaville incidents and
the Sally's and Tommy Bahamas incidents both
involved an unarmed suspect with a Band Aid on
his face engaging the employees in small talk
before demanding money from the register, and
that while the Tommy Bahamas evidence may have
been stronger, the other cases were not weak. The
prosecution also sought reconsideration of the
order denying consolidation with the
Entenmann's robbery charges, for the same
reasons it opposed the motion to sever.
The court denied the motion to sever, finding a
“high likelihood of cross-admissibility of
at least some evidence” and “numerous
similarities common to these events, ”
including “similar descriptions of the
suspect and how the suspect acted during the
events, proximity and time among all three of the
events, similarities in time of day. None of the
crimes is particularly more inflammatory than any
other. There are other features such as the
Band-Aid which is common to two out of those
three cases.” The court noted that there
were at least two common police witnesses, and no
“gross difference in the relative strength
of any one crime, event, or count over any of the
others.” Although it recognized that the
surveillance photographs would be of significance
to the trier of fact, the court found they would
not cause the level of disproportionate weight
that would make it unfair to proceed in a single
trial.
The court made similar findings regarding the
motion to consoliDated: “We have similar
descriptions of the suspect and how the suspect
acted in all four cases. We have the band-aid on
the face, somewhere on the face, appearing in
three out of four of the cases. We have similar
descriptions of . . . how the suspect acted and
how the suspect in each of the four events
committed the actual robbery.” Finding a
“high likelihood” of
cross-admissibility of evidence among the four
cases, and noting the presumption in favor of
consolidation absent a showing of undue prejudice
to the defendant, the court granted the motion to
consolidate.
Just before the beginning of the trial, appellant
again moved to sever the two attempted robbery
counts. In addition to previously raised points,
appellant maintained that in order to make his
strongest argument that the identifications in
the Sally's and Entenmann's cases were
tainted - because the witnesses were shown the
surveillance photograph from the Tommy Bahamas
case - the defense would have to concede that the
photograph was appellant, which would ensure a
guilty verdict on the Tommy Bahamas counts in a
joint trial.
In denying appellant's motion to sever the
attempted robbery counts, the court (a different
judge this time) stated that the surveillance
video was “strong evidence” but was
“somewhat offset” by Kerwin's
“equivocations” about who came into
the Tommy Bahamas store and Corsello's having
picked two photographs from the lineup. The court
also felt the other cases were not weak, as all
involved eye witnesses who were physically close
to the suspect and identified appellant. The
court stated there were “some common
characteristics” and “[t]here
conceivably is cross-admissibility, at least as
to the Band-Aid, the gun, or lack thereof.”
It continued, “And as to the issue of
identity, we could argue a little bit more about
whether or not those are signature
characteristics or not . . . . [¶] But in
terms of common plan or scheme or intent, you
know, less of a signature quality is required for
those kinds of - that kind of evidence to be
crossly admissible.” Finally, the court
noted that the severance motion “should
have been raised sooner, ” when the video
“became of knowledge to both sides.”
“Under section 954, ‘[a]n accusatory
pleading’ may charge ‘two or more
different offenses of the same class of crimes or
offenses, under separate counts.’”
(People v. Elliott (2012) 53 Cal.4th
535, 551.) “The law favors the joinder of
counts because such a course of action promotes
efficiency. (Alcala v. Superior Court
(2008) 43 Cal.4th 1205, 1220.)” (People
v. Myles (2012) 53 Cal.4th 1181, 1200.)
Accordingly, “[t]he burden is on the party
seeking severance to clearly establish that there
is a substantial danger of prejudice requiring
that the charges be separately tried.”
(People v. Soper (2009) 45 Cal.4th 759,
773 (Soper).) “A trial court has
discretion to order that properly joined charges
be tried separately (§ 954), but there must
be a ‘clear showing of prejudice to
establish that the trial court abused its
discretion in denying the defendant's
severance motion’ (People v.
Mendoza (2000) 24 Cal.4th 130, 160). In
assessing a claimed abuse of discretion, we
assess the trial court's ruling by
considering the record then before the court.
(Soper, supra, at p. 774; People v.
Avila (2006) 38 Cal.4th 491, 575.)”
(People v. Myles, supra, 53 Cal.4th at
p.1200.)
In exercising its discretion to order separate
trials, “a trial court should consider (1)
whether the evidence relating to the various
charges would be cross-admissible in separate
trials, (2) whether some of the charges are
unusually likely to inflame the jury against the
defendant, (3) whether a weak case has been
joined with a strong case or with another weak
case, and (4) whether one of the charges is a
capital offense or the joinder of the charges
converts the matter into a capital case.
(People v. Cook (2006) 39 Cal.4th 566,
581.)” (People v. Elliott, supra,
53 Cal.4th at p. 551.) “If the evidence
underlying each of the joined charges would have
been cross-admissible under Evidence Code section
1101 had they been prosecuted in separate trials,
‘that factor alone is normally sufficient
to dispel any suggestion of prejudice and to
justify a trial court's refusal to sever
properly joined charges.’ (Soper,
supra, 45 Cal.4th at p. 775; see People
v. Vines (2011) 51 Cal.4th 830, 855.)”
(People v. Myles, supra, 53 Cal.4th at
pp. 1200-1201.)
However, “lack of cross-admissibility is
not dispositive of whether the court abused its
discretion in denying severance. (§ 954.1;
People v. Thomas (2011) 52 Cal.4th 336,
350 [‘When two crimes of the same class are
joined, cross-admissibility is not
required.’].)” (People v. Myles,
supra, 53 Cal.4th at p. 1201.) Even if the
evidence would not have been cross-admissible,
the reviewing court must determine
“‘whether the benefits of joinder
were sufficiently substantial to outweigh the
possible “spill-over” effect of the
“other-crimes” evidence on the jury
in its consideration of the evidence of
defendant's guilt of each set of
offenses.’ (People v. Bean (1988)
46 Cal.3d 919, 938; see People v. Thomas,
supra, 52 Cal.4th at p. 350.)”
(People v. Myles, at p. 1201.) After
consideration of all the factors bearing on
joinder, the court must
“‘“balance the potential for
prejudice to the defendant from a joint trial
against the countervailing benefits to the
state.” [Citation.]’”
(Ibid., quoting People v.
Thomas (2012) 53 Cal.4th 771, 798-799.)
Appellant devotes substantial argument to his
claim that the evidence of the separate robberies
and attempted robbery would not have been
cross-admissible. Evidence that a defendant
committed other crimes may be admissible when
relevant to prove a fact such as motive,
opportunity, intent or identity (Evid. Code,
§ 1101, subd. (b)), but only when the
offenses are sufficiently similar to prove the
fact at issue. “The greatest degree of
similarity is required for evidence of uncharged
misconduct to be relevant to prove identity. For
identity to be established, the uncharged
misconduct and the charged offense must share
common features that are sufficiently distinctive
so as to support the inference that the same
person committed both acts. (People v.
Miller [ (1990) ] 50 Cal.3d 954, 987.)
‘The pattern and characteristics of the
crimes must be so unusual and distinctive as to
be like a signature.’ (1 McCormick [on
Evidence (4th ed. 1992) ] § 190, pp.
801-803.)” (People v. Ewoldt
(1994) 7 Cal.4th 380, 403.) “The highly
unusual and distinctive nature of both the
charged and uncharged offenses virtually
eliminates the possibility that anyone other than
the defendant committed the charged
offense.” (People v. Balcom (1994)
7 Cal.4th 414, 425.)
A lesser degree of similarity is required where
the uncharged offenses are used to establish the
existence of a common design or plan: For this
purpose, “the common features must indicate
the existence of a plan rather than a series of
similar spontaneous acts, but the plan thus
revealed need not be distinctive or
unusual.” (People v. Ewoldt,
supra, 7 Cal.4th at p. 403.) Other crimes
evidence is admissible to show a common design or
plan, however, “only to prove that the
defendant engaged in the conduct alleged to
constitute the charged offense, not to prove
other matters, such as the defendant's intent
or identity as to the charged offense.”
(Ibid.) Where it is undisputed that the
charged offense was committed by someone, and the
only question is whether the defendant was the
perpetrator, evidence sufficient to demonstrate a
common plan but not distinctive enough to
establish identity generally would not admissible
because it would be cumulative and unduly
prejudicial. (Id. at p. 406.)
Appellant urges that the offenses with which he
was charged were “garden variety type
robberies, ” none involving common features
that were sufficiently distinctive to make them
admissible. This characterization downplays the
overall similarities between the incidents: All
occurred in a relatively small geographical area,
within less than six weeks of each other, at
similar times of day, perpetrated by a man
wearing dark clothing and a beanie or billed cap
who engaged in small talk with an employee, then
came to the register, gave the impression or
stated he was armed but in fact was not, and,
when the register was opened, grabbed the money
and left. In three of the four incidents, the
perpetrator was described as having a Band-Aid on
his upper cheek (although Crane initially told
the 911 operator the Band-Aid was above his eye,
then said it was below his eye).
We need not determine whether the evidence would
have been cross-admissible because, as indicated
above, even if it was not, the lack of
cross-admissibility would not necessarily mean
the trial court abused its discretion in denying
severance. (People v. Myles, supra, 53
Cal.4th at p. 1201.) Here, consideration of the
other factors bearing on severance demonstrates
that it did not.
Two of the remaining factors clearly militate in
favor of consolidation. None of the charges was
likely to unusually inflame the jury against the
defendant (People v. Myles, supra, 53
Cal.4th at p. 1202), as the charged offenses were
of the same type, with similar facts and no
egregious circumstances in any of the four
incidents. And none of the charges involved a
capital offense. (Ibid.) The only real
question is whether the joint trial permitted
weak charges to be bolstered by strong ones.
This is the heart of appellant's argument -
that the attempted robbery counts were supported
by strong evidence in the form of the
surveillance video and clothing seized from his
home, while the robbery charges were weak because
they rested purely on eyewitness testimony that
appellant challenges as tainted and unreliable.
The trial court disagreed, finding that although
the video was strong evidence, the cases based
solely on eyewitness testimony were not weak
because the witnesses were close to appellant
during the incidents and identified him on
multiple occasions.
We find no abuse of discretion. As will be
discussed in the following section of this
opinion, appellant's challenges to the
eyewitness testimony are unavailing. All of the
witnesses were in close contact with the
perpetrator during the incidents. All but one
(one of the two witnesses in the Fallas robbery)
identified appellant at trial. All the witnesses
in the Sally's, Entenmann's and Fallas
robberies identified appellant in both the
photographic and the live lineups. The only
witnesses who did not identify appellant in one
of the two pretrial identification procedures
were the witnesses in the Tommy Bahamas attempted
robbery (the incident captured on video), one of
whom picked a different person in the
photographic lineup (but identified appellant in
the live lineup) and the other of whom picked
someone different at the live lineup (but
identified appellant in the photographic lineup
and in a still photograph of the live lineup).
The defense at trial tried to undermine the
credibility of these identifications; the various
factors bearing on the witnesses' ability to
accurately perceive and remember the events, and
the opportunities for mistakes, were pointed out
on cross-examination, through expert testimony
and in argument. We find no reason to believe the
jury would not have credited the eyewitness
testimony if it had not also had the benefit of
the surveillance video and clothing from the
Tommy Bahamas case. “[T]he benefits of
joinder are not outweighed - and severance is not
required - merely because properly joined charges
might make it more difficult for a defendant to
avoid conviction compared with his or her chances
were the charges to be separately tried. (E.g.,
Zafiro v. United States (1993) 506 U.S.
534, 540 [“[D]efendants are not entitled to
severance merely because they may have a better
chance of acquittal in separate trials”];
accord, [State v.] Richards [
(Mont. 1995) ] 906 P.2d 222, 227.)”
(Soper, supra, 45 Cal.4th at p. 781.)
Finally, we must consider the benefits to the
state from jointly trying these cases.
(People v. Myles, supra, 53 Cal.4th at
p. 1201.) In addition to the case-specific
benefits that accrue when there is an overlap in
the evidence pertaining to the joined counts
(Soper,supra, 45 Cal.4th at p.
783), such benefits include conserving judicial
resources and public funds: “A unitary
trial requires a single courtroom, judge, and
court attaches. Only one group of jurors need
serve, and the expenditure of time for jury voir
dire and trial is greatly reduced over that
required were the cases separately tried. In
addition, the public is served by the reduced
delay on disposition of criminal charges both in
trial and through the appellate process.”
(People v. Bean [, supra, ] 46 Cal.3d
[at pp.] 939-940; Soper, supra, 45
Cal.4th at pp. 781-783.) “Manifestly,
severance of properly joined charges denies the
state the substantial benefits of efficiency and
conservation of resources otherwise afforded by
section 954.” (Soper, supra, 45
Cal.4th at p. 782.)
Appellant relies upon People v. Earle
(2009) 172 Cal.App.4th 372 (Earle) to
argue these benefits are minimal in the present
case. Earle found a prejudicial abuse of
discretion in the refusal to sever two
“entirely distinct and dissimilar”
cases with “no apparent historical
connection to one another, ” one a very
strong (indeed, “tacitly conceded”)
misdemeanor indecent exposure case and the other
a “considerably stronger” felony
sexual assault. (Id. at p. 378.) The
indecent exposure occurred in broad daylight, the
victim recorded the perpetrator's license
plate, which belonged to the defendant's car,
and the victim identified the defendant from a
properly conducted photographic lineup.
(Ibid.) The sexual assault, on the other
hand, happened at night in a car lit only by
overhead parking lot lights, the victim's
description of her assailant differed markedly
from the defendant's appearance,
[10] there were discrepancies
regarding the victim's description of the car
involved in the incident and the defendant's
car, and the defendant was “a world-class
competitor in the sport of ‘submission
grappling, ’” yet during the
incident, the victim was able to break her
assailant's grasp and escape from the vehicle
in which he was trying to subdue her. (Earle,
supra, 172 Cal.App.4th at pp. 378-379.)
Although the indecent exposure was not relevant
to any issue in the trial of the assault, the
prosecutor explicitly asked the jury to convict
the defendant of the assault based on his
commission of the unrelated indecent exposure,
likening the latter to DNA evidence and
“‘modus operandi’”
despite the absence of any evidence that a person
who engages in indecent exposure has a propensity
or predisposition to commit a sexual assault.
(Id. at pp. 379, 398- 400.)
Considering the many significant weaknesses in
the assault case -which the court took pains to
detail at great length - and the bias against the
defendant likely instilled in the jury by the
virtually conceded indecent exposure and the
prosecutor's “pervasive reliance upon
it” (Earle, supra, 172 Cal.App.4th
at pp. 401-407, 409), as well as the absence of
any overlap in evidence or witnesses, the
Earle majority held that the
“systemic economies” of joint trial
could not “counterbalance the very
substantial risk that evidence of the indecent
exposure played a dispositive role in the verdict
on the assault charge.” (Id. at p.
408.)
The present case involves nothing like the
extreme disparity in strength between the cases
for which severance was sought in Earle:
As we have said, while the evidence in the Tommy
Bahamas case was strengthened by the surveillance
video and seized clothing, the eyewitness
testimony in the other cases was still strong.
Nor does the present case present the risk of
irrelevant emotional bias that drove the
court's analysis in Earle. Even the
Earle court highlighted the systemic
benefits resulting from a joint trial, stressing
their importance although finding them overcome,
in that case, by the defendant's right to a
fair trial, without the jury hearing otherwise
inadmissible and inflammatory evidence.
(Earle, supra, 172 Cal.App.4th at pp.
408-409.) Here, there is no comparable risk of
prejudice to outweigh the benefits of a joint
trial.
Bazemore, 2013 WL 3778353, at **6-12.
The
question presented in this federal habeas corpus
petition is whether the state appellate
court’s adjudication of this issue resulted
in a decision that was contrary to, or involved
an unreasonable application of, clearly
established Federal law. Federal habeas relief is
appropriate for claims of improper joinder only
where the “simultaneous trial of more than
one offense . . . actually render[ed]
petitioner’s state trial fundamentally
unfair and hence, violative of due
process.” Sandoval v. Calderon,
241 F.3d 765, 772 (9th Cir. 2000) (quoting
Featherstone v. Estelle, 948 F.2d 1497,
1503 (9th Cir. 1991)). See also Davis v.
Woodford, 384 F.3d 628, 638 (9th Cir. 2004);
Park v. California, 202 F.3d 1146, 1149
(9th Cir. 2000). As the United States Supreme
Court has explained, “[i]mproper joinder
does not, in itself, violate the
Constitution.” United States v.
Lane, 474 U.S. 438, 446 n.8 (1986).
“Rather, misjoinder would rise to the level
of a constitutional violation only if it results
in prejudice so great as to deny a defendant his
Fifth Amendment right to a fair trial.”
Id. “The requisite level of
prejudice is reached only if the impermissible
joinder had a “substantial and injurious
effect or influence in determining the
jury’s verdict.” Davis, 384
F.3d at 638 (quoting Sandoval, 241 F.3d
at 772).
A
trial court has broad discretion in ruling on
severance motions. Herd v. Kincheloe,
800 F.2d 1526, 1529 (9th Cir. 1986). The relevant
factors are judicial economy and prejudice.
United States v. Lewis, 787 F.2d 1318,
1320 n.3 (9th Cir.), amended 798 F.2d
1250 (9th Cir. 1986). A reviewing court must
consider: (1) whether strong evidence of one
count is presented with relatively weak evidence
on another count; (2) whether the evidence of the
other count is cross-admissible; and (3) whether
the state trial court admonished the jury as to
the limited use of the other crimes evidence.
See Bean v. Calderon, 163 F.3d 1073,
1084-86 (9th Cir. 1998). Even if the evidence is
not cross-admissible, joinder generally does not
result in prejudice if the evidence of each crime
is simple and distinct and the jury is properly
instructed so that it may compartmentalize the
evidence. Id. at 1085-86; see also
United States v. Johnson, 820 F.2d 1065,
1071 (9th Cir. 1987).
Under
the circumstances of this case, the trial court
did not abuse its discretion in denying
petitioner’s severance motion. As the state
appellate court found, the evidence on all counts
against petitioner was relatively strong and some
of the evidence on all of the charges was
cross-admissible. Even assuming arguendo
that the state trial court erred in denying
petitioner’s motion for severance, the
misjoinder did not have a “substantial and
injurious effect or influence in determining the
jury’s verdict.” Davis, 333
F.3d at 991 (quoting Sandoval, 241 F.3d
at 772). Nor did the trial court’s failure
to sever the Tommy Bahama counts “actually
render [his] state trial fundamentally
unfair.” Featherstone, 948 F.2d at
1502. See also Herring v. Meachum, 11
F.3d 374, 377 (2nd Cir. 1993) (“In
considering whether a violation of due process
occurred, the emphasis must be on the word
‘actually.’”). The crimes
charged against petitioner were clearly distinct
and the jury should have been easily able to
distinguish the evidence introduced with respect
to one charge from that introduced in the others.
There is no evidence that the jury was confused
or was unable to consider separately the evidence
which pertained to each charged crime. The
evidence supporting petitioner’s
convictions was not materially unequal, none of
the offenses was significantly more inflammatory
than the other, and there was sufficient evidence
to support a conviction of each offense without
use of evidence introduced in connection with the
other.
The
court also notes that the United States Supreme
Court has never squarely held that a trial
court’s failure to provide separate trials
on different charges implicates the
defendant’s right to due process of law.
See Collins v. Runnels, 603 F.3d 1127,
1132 (9th Cir. 2010) (rejecting the
petitioner’s argument that Lane
provides “clearly established federal
law” governing a state court's denial
of a motion to sever the trials of defendants who
present mutually antagonistic defenses);
Runningeagle v. Ryan, 686 F.3d 758,
776-77 (9th Cir. 2012) (same). Thus, petitioner
cannot show that the state court decision denying
his claim of improper severance is contrary to or
an unreasonable application of United States
Supreme Court authority. “[I]t cannot be
said that a state court unreasonably applied
clearly established Federal law” when
Supreme Court precedent “give[s] no clear
answer to the question presented.”
Wright v. Van Patten, 552 U.S. 120, 126
(2008) (internal quotation marks and alterations
omitted).
Accordingly,
for all of the foregoing reasons, petitioner is
not entitled to relief on his claim of improper
joinder.
B.
Identification Procedures
In
his second ground for relief, petitioner claims
that unduly suggestive pretrial identification
procedures violated his right to due process and
a fair trial. ECF No. 1 at 13-14; ECF No. 17-9 at
120-27. He argues that trial witnesses Martinez,
Caballero and Crane may have identified him at
the photographic and live lineups only because
they were previously shown a still photograph of
him that had been extracted from the Tommy Bahama
surveillance video. ECF No. 17-9 at 121; ECF No.
18 at 6. He argues his face was
“familiar” to these witnesses because
they had seen his photograph prior to the
lineups. ECF No. 18 at 6. Petitioner contends
that “the showing of suspects singly to a
witness for identification is ‘[o]ne of the
most condemned pretrial identification
procedures.’” ECF No. 17-9 at 121.
Petitioner
also notes that witnesses Caballero and Crane
identified him at a live lineup after they had
seen both the photograph from the Tommy Bahama
surveillance video and a photo lineup containing
his photograph. Id. at 123. Petitioner
states that he was “the only person who was
included in both the photo lineups, and the live
lineup.” Id. He argues this fact
contributes to the suggestive nature of the
identifications that occurred in this case.
Petitioner explains:
Here, the witnesses were shown a still photo
which came from a surveillance video. Later, they
were shown a photo lineup containing
[petitioner’s] picture, and later still,
were asked to identify [petitioner] from a live
lineup in which all the subjects were wearing
jail clothing and [petitioner] was the only
person whose likeness had also been included in
the photo lineup.
Id. at 124. Petitioner argues that under
the totality of the circumstances his
identification by witnesses Martinez, Caballero
and Crane was not reliable.
In
the traverse, petitioner states that the single
photograph shown to these witnesses was in the
form of a Vacaville Police Dept. flyer, which is
attached to the traverse. ECF No. 18 at 11. The
flyer contains a photograph of a man entering a
store, with the words “211 PC
suspect” written in bold at the top of the
page.[11]Id. Petitioner
argues that the flyer was “so impermissibly
suggestive that it caused defendant to stand out
in a way that it would suggest the witness should
select him.” Id. at 6-7. He points
out that the state appellate court opined the
showing of a single photograph of petitioner to
witnesses was “possibly” suggestive.
Id. at 6.
Petitioner
also argues that the pretrial identification
procedures used with witness Kerwin were
impermissibly suggestive. ECF No. 17-9 at 126. He
notes that Kerwin identified him from the photo
lineup but chose a different person at a
subsequent live lineup. Id. Two weeks
later, Kerwin was asked to come back to the
police station to review a photograph of the live
lineup without petitioner or his representative
being present. Id. Petitioner notes that
no other witnesses were asked to go to the police
department after the photo and live lineups were
conducted. Id. He argues it is likely
Kerwin identified petitioner because he
recognized him from the earlier lineups.
In
sum, petitioner argues, “[t]he
identifications of [petitioner] by Martinez,
Crane, Caballero and Kerwin were not strong, and
were not sufficiently reliable, considering the
totality of circumstances, to negate the taint
caused by the unduly suggestive pre-trial
identification procedures.” Id. at
127.
1.
State Court Decision
The
California Court of Appeal rejected these
arguments, reasoning as follows:
Prior to trial, appellant moved to exclude
in-court identifications by Martinez, Crane,
Caballero and Kerwin on the grounds that
identification by these witnesses had been
tainted by unduly suggestive pretrial
identification procedures. The trial court denied
the motion, finding that appellant failed to meet
his burden of showing that the procedures were
unduly suggestive and unnecessary or that the
ultimate identification was not reliable.
Appellant now argues that his constitutional
rights to due process and a fair trial were
violated by the use of impermissibly suggestive
pretrial identification procedures. His claim is
based on the facts that the witnesses in the
Sally's and Entenmann's robberies were
shown a surveillance photograph of the suspect in
the Tommy Bahamas robbery before they identified
appellant in photo and live lineups; that
appellant was the only subject included in both
the photographic lineups and live lineups; and
that one of the victims in the Tommy Bahamas
attempted robbery identified someone other than
appellant in the live lineup, then later
identified appellant in a photograph of the live
lineup after being requested to come to the
police station.
We apply the independent standard of review to a
trial court's determination that a pretrial
identification procedure was not unduly
suggestive. (People v. Kennedy (2005) 36
Cal.4th 595, 609, disapproved on other
grounds in People v. Williams
(2010) 49 Cal.4th 405, 459.) “In order to
determine whether the admission of identification
evidence violates a defendant's right to due
process of law, we consider (1) whether the
identification procedure was unduly suggestive
and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable
under the totality of the circumstances, taking
into account such factors as the opportunity of
the witness to view the suspect at the time of
the offense, the witness's degree of
attention at the time of the offense, the
accuracy of his or her prior description of the
suspect, the level of certainty demonstrated at
the time of the identification, and the lapse of
time between the offense and the identification.
(Manson v. Brathwaite (1977) 432 U.S.
98, 104-107, 114; Neil v. Biggers (1972)
409 U.S. 188, 199-200; People v. Ochoa [
(1998) ] 19 Cal.4th 353, 412; People v.
Johnson (1992) 3 Cal.4th 1183, 1216;
People v. Gordon (1990) 50 Cal.3d 1223,
1242.) [¶] The defendant bears the burden of
demonstrating the existence of an unreliable
identification procedure. (People v. Ochoa,
supra, 19 Cal.4th 353, 412; People v.
DeSantis (1992) 2 Cal.4th 1198, 1222.)
‘The question is whether anything caused
defendant to “stand out” from the
others in a way that would suggest the witness
should select him.’ (People v.
Carpenter (1997) 15 Cal.4th 312,
367.)” (People v. Cunningham
(2001) 25 Cal.4th 926, 989-990.)
Appellant argues that it is likely Martinez, the
witness in the Sally's robbery, identified
appellant at the lineups not because she
recognized him from the incident but because his
face was familiar from the surveillance
photograph the police showed her. He emphasizes
that Martinez recognized the photo was from a
surveillance camera, that she recognized the
subject's build but not his face, and that
the photograph depicts a man with a mustache
while at the time of the robbery Martinez
described the suspect as clean shaven.
Courts have noted the danger that a witness who
first identifies a suspect from photographs may
base a subsequent identification on the memory of
the photograph rather than of the incident
itself. (Simmons v. United States (1968)
390 U.S. 377, 383.) Use of a single photograph
for identification is particularly problematic
because of the suggestion it conveys to the
witness that the police believe the person in the
photograph is the suspect. (People v.
Contreras (1993) 17 Cal.App.4th 813, 820;
see, Simmons, supra, 390 U.S. at p. 383;
Manson v. Brathwaite, supra, 432 U.S. at
pp. 107-109.)
But photographic identifications play a critical
role in criminal investigations. As
Simmons explained, “[d]espite the
hazards of initial identification by photograph,
this procedure has been used widely and
effectively in criminal law enforcement, from the
standpoint both of apprehending offenders and of
sparing innocent suspects the ignominy of arrest
by allowing eyewitnesses to exonerate them
through scrutiny of photographs. The danger that
use of the technique may result in convictions
based on misidentification may be substantially
lessened by a course of cross-examination at
trial which exposes to the jury the method's
potential for error.” (Simmons v.
United States, supra, 390 U.S. at p. 384.)
Identifications based on a single photograph may
play a necessary and valid role in an
investigation, and the fact that a witness first
identified the defendant from a single photograph
does not necessarily impermissibly taint a
subsequent identification. (People v.
Johnson (2010) 183 Cal.App.4th 253, 273;
Wilson v. Superior Court (1977) 70
Cal.App.3d 751, 757; People v. Greene
(1973) 34 Cal.App.3d 622, 644-645.) “[E]ach
case must be considered on its own facts, and . .
. convictions based on eyewitness identification
at trial following a pretrial identification by
photograph will be set aside on that ground only
if the photographic identification procedure was
so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable
misidentification.” (Simmons,
supra, 390 U.S. at p. 384.)
People v. Johnson is particularly apt.
There, police were investigating a series of
robberies or attempted robberies of gas stations
in the Sacramento area. Still photographs taken
from the video surveillance recording of one of
these incidents were shown to the victim of an
uncharged incident, and she recognized the
subject in the photographs as the person who
attempted to rob her. (People v. Johnson,
supra, 183 Cal.App.4th at p. 271.) She
subsequently identified the defendant in a live
lineup. (Ibid.) Rejecting the contention
that use of the photographs before the live
lineup improperly tainted the witness's
identification, the court first noted that
because the photographs were not part of the
record, it did not know exactly what they
depicted and therefore could not determine what
prejudicial effect they could have had on the
subsequent identification. (Id. at pp.
272-273.) The court then stated, “We
certainly cannot say the procedure was
unnecessary. A police sergeant from a different
jurisdiction asked Mar to view the photos based
on the similarity in the crimes and in order to
solve the crime against Mar.” (Id.
at p. 273.)
In the present case, Vallejo Police Officer Polen
circulated the surveillance photograph from the
attempted robbery at Tommy Bahamas to other
agencies, and Fairfield Police Officer
Trojanowski showed the photograph to victims of
robberies that occurred in his jurisdiction.
There is nothing inherently suggestive about the
photograph: It simply depicts a man walking into
a clothing store, with the store door part way
open behind him. Given the background of the
photograph, it could not have been used in a
photographic lineup because other photographs
would necessarily have had different
backgrounds.[12] There was nothing
unreasonable about Officer Trojanowski attempting
to determine whether the attempted robbery
suspect seen in the surveillance photograph was
the same person responsible for the Fairfield
robberies.
Appellant emphasizes that Martinez recognized the
photograph she was shown as a surveillance
photograph. But this in itself is not suggestive.
The purpose of a surveillance camera aimed at a
store's door is to capture images of persons
entering and leaving the store; any customer
visiting the store would be so documented.
Appellant's description of Martinez having
testified that she recognized the build of the
person in the surveillance photograph but not his
face overstates the testimony. Martinez testified
that she recognized the person's build and
that she did not remember whether she recognized
his face or did not recognize it. Martinez did
describe appellant to the police as clean-shaven
while the surveillance photograph shows a man
with a mustache, but this discrepancy is not
sufficient to conclude the surveillance
photograph was unduly suggestive. The other
discrepancies that appellant notes are that
Martinez described the suspect as five foot nine
inches tall and about 40 years old, while
appellant was “about” six feet tall
and 51 years old. Neither of these is so far off
as to undermine the reliability of the
identification. Rather, these were the kind of
factors the jury was instructed to consider in
determining the credibility of eyewitness
testimony. (CALCRIM No. 31510; see Wilson v.
Superior Court, supra, 70 Cal.App.3d at p.
757 [discrepancy between witness estimate of
height (five feet six inches) and actual height
(six feet two inches) “may cast doubt on
the victim's credibility and the defense can
rightly draw a jury's attention to
them”].)
Martinez had ample opportunity to observe
appellant at the time of the robbery. She
testified that the store was well lit, and she
talked to him first from about six feet away and
then, upon his return, from across the counter at
the register. Although she looked down once she
realized a robbery was underway, she and
appellant initially were looking straight at each
other. There is no basis for us to conclude her
identifications from the photographic lineup,
live lineup and at trial were not reliable.
With respect to the witnesses in the
Entenmann's robbery, Caballero and Crane,
appellant notes that neither was able to
positively identify the suspect from the
photographic lineup, indicating only that
appellant “could be” the robber but
they were “not a hundred percent
sure”; that appellant was the only person
included in both the photographic and live
lineup, and that all the subjects in the live
lineup were wearing jail jump suits. He further
points to Cabellero's description of the
suspect as about 30 years old, 20 years younger
than appellant's actual age; her testimony
that she did not realize appellant was bald until
she saw him at the live lineup; and the facts
that Crane was not wearing her glasses at the
time of the robbery and told the 911 operator
first that the Band Aid on the suspect's face
was above his eye, then that it was below his
eye.
Again, the discrepancies to which appellant
points were factors for the jury's
consideration, and the defense emphasized these
and other similar points on cross-examination and
in closing argument. “[T]he fact that
defendant alone appeared in both a photo lineup
and a subsequent live lineup does not per se
violate due process.” (People v.
Cook (2007) 40 Cal.4th 1334, 1355.) A
defendant bears the burden of showing that an
identification procedure was unduly suggestive
and unfair “as a demonstrable reality, not
just speculation.” (People v. DeSantis,
supra, 2 Cal.4th at p. 1222.) As indicated
above, due process is violated “only if the
identification procedure is ‘so
impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable
misidentification.’” (People v.
Cook, at p. 1355, quoting Simmons v.
United States, supra, 390 U.S. at p. 384.)
In arguing that the subsequent identifications
were tainted by the witnesses first being shown
the surveillance photograph, appellant attempts
to distinguish People v. Hernandez
(1988) 204 Cal.App.3d 639 (Hernandez), a
case rejecting such a challenge. In
Hernandez, the witness was first shown a
photographic lineup that did not include the
defendant's photograph and did not identify
anyone. He was later shown another photographic
lineup and stated that the defendant's
photograph looked “more like” the
burglar than any of the others. The detective,
informed that the burglar was wearing a cap,
showed the witness a single photograph of the
defendant wearing a hat. The witness still did
not make a positive identification because
“‘he had his hands up in front of his
face and [the witness] couldn't get a good
look at his face.’” (Id. at
pp. 644- 645.) The witness identified the
defendant at trial. (Id. at p. 653.)
Upholding the trial court's denial of the
motion to suppress the in-court identification as
the product of an unfair pretrial identification
procedure, Hernandez noted that the
police did not initiate the identification
procedure by showing a single photograph but
showed it only after the witness pointed to the
defendant's photograph in a lineup as most
resembling the burglar, and that even with the
single photograph, the identification was only
tentative, “indicating that the showing of
the single photo of defendant had no
effect.” (Hernandez, supra, 204
Cal.App.3d at pp. 653-654.) Appellant argues that
the present case is different because the police
used the single photograph at the beginning of
the identification procedure, and the
witnesses' subsequent identifications were
not tentative. While the distinctions appellant
notes are accurate, they do not undermine our
conclusion that appellant has not demonstrated
that the use of the single photograph in this
case was unduly suggestive or the subsequent
identifications were unreliable.
Bazemore, 2013 WL 3778353, at **12-15.
2.
Applicable Law
The
Due Process Clause of the United States
Constitution prohibits the use of identification
procedures which are “unnecessarily
suggestive and conducive to irreparable mistaken
identification.” Stovall v. Denno,
388 U.S. 293, 302 (1967), overruled on other
grounds by Griffith v. Kentucky, 479 U.S.
314, 326 (1987). See also Boyer v.
Chappell, 793 F.3d 1092, 1100 (9th Cir.
2015). A suggestive identification violates due
process if it was unnecessary or
“gratuitous” under the circumstances.
Neil v. Biggers, 409 U.S. 188, 198
(1972). An identification procedure is suggestive
where it “[i]n effect . . . sa[ys] to the
witness ‘This is the man.’”
Foster v. California, 394 U.S. 440, 443
(1969). “[E]ach case must be considered on
its own facts” and whether due process has
been violated depends on “the totality of
the surrounding circumstances.” Simmons
v. United States, 390 U.S. 377, 383 (1968)
(citing Stovall, 388 U.S. at 302).
In
Perry v. New Hampshire, 565 ___ U.S.
___, 132 S.Ct. 716 (2012), the United States
Supreme Court clarified that due process bars
admission only of unreliable identifications
arising from “improper law enforcement
activity.” Id. at 720-21 (listing
instances of improper police activity, such as
rigging a lineup, showup, or photo six-pack).
Case law makes clear that “what triggers
due process concerns is police use of an
unnecessarily suggestive identification
procedure, whether or not they intended the
arranged procedure to be suggestive.”
Id. at 721 n.1. However, “even
when the police use [a suggestive identification]
procedure, suppression of the resulting
identification is not the inevitable
consequence.” Id. at 719. Courts
must assess each case to determine whether
improper police conduct created a
“substantial likelihood of
misidentification.” Biggers, 409
U.S. at 201. “Where the ‘indicators
of [a witness’] ability to make an accurate
identification’ are ‘outweighed by
the corrupting effect’ of law enforcement
suggestion, the identification should be
suppressed.” Perry, 132 S.Ct. at
719 (quoting Manson v. Brathwaite, 432
U.S. 98, 114, 116 (1977)).
Factors
indicating the reliability of an identification
include: (1) the opportunity to view the criminal
at the time of the crime; (2) the witness’
degree of attention (including any police
training); (3) the accuracy of the prior
description; (4) the witness’s level of
certainty at the confrontation; and (5) the
length of time between the crime and the
identification. Brathwaite, 432 U.S. at
114 (citing Biggers, 409 U.S. at
199-200). Additional factors to be considered in
making this determination are “the prior
opportunity to observe the alleged criminal act,
the existence of any discrepancy between any
pre-lineup description and the defendant’s
actual description, any identification prior to
lineup of another person, the identification by
picture of the defendant prior to the lineup,
failure to identify the defendant on a prior
occasion, and the lapse of time between the
alleged act and the lineup identification.”
United States v. Wade, 388 U.S. 218, 241
(1967). The “central question, ” is
“whether under the ‘totality of the
circumstances’ the identification is
reliable even though the confrontation procedure
was suggestive.” Biggers, 409 U.S.
at 199. See also United States v. Drake,
543 F.3d 1080, 1088 (9th Cir. 2008).
If
the flaws in the pretrial identification
procedures are not so suggestive as to violate
due process, “the reliability of properly
admitted eyewitness identification, like the
credibility of the other parts of the
prosecution’s case is a matter for the
jury.” Perry, 132 S.Ct. at 719;
Foster, 394 U.S. at 443 n.2. Absent
improper law enforcement activity, “it
suffices to test reliability through the rights
and opportunities generally designed for that
purpose, ” such as “vigorous
cross-examination, protective rules of evidence,
and jury instructions on both the fallibility of
eyewitness identification and the requirement
that guilt be proved beyond a reasonable
doubt.” Perry, 132 S.Ct. at 721,
727 (noting that “[m]ost eyewitness
identifications involve some element of
suggestion, ” as “all in-court
identifications do”). See also
Brathwaite, 432 U.S. at 116 (“[j]uries
are not so susceptible that they cannot measure
intelligently the weight of identification
testimony that has some questionable
feature”); United States v. Jones,
84 F.3d 1206, 1210 (9th Cir. 1996) (unless the
procedure used is so suggestive that it raises a
“very substantial likelihood of irreparable
misidentification, ” doubts go to the
weight, not the admissibility, of the evidence
and “identification evidence is for the
jury to weigh”) (quoting United States
v. Kessler, 692 F.2d 584, 586-87 (9th Cir.
1982)). On the other hand, if an out-of-court
identification is inadmissible due to
unconstitutionality, a related in-court
identification is also inadmissible unless the
government establishes that it is reliable by
introducing “clear and convincing evidence
that the in-court identifications were based upon
observations of the suspect other than the lineup
identification.” Wade, 388 U.S. at
240. See also United States v. Hamilton,
469 F.2d 880, 883 (9th Cir. 1972) (in-court
identification admissible, notwithstanding
inherent suggestiveness, where it was obviously
reliable). Under the harmless error standard, a
court must determine whether a constitutional
error “‘had substantial and injurious
effect or influence in determining the jury's
verdict.’” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993)
(citation omitted).[13]
3.
Analysis
Assuming
arguendo that the pretrial
identification procedures used in this case were
impermissibly suggestive, the court concludes
that the in-court identifications were
nonetheless reliable because they were not likely
to yield an “irreparable
misidentification.” Manson, 432
U.S. at 116 (internal quotation and citation
omitted).
Rosa
Martinez had ample opportunity to observe the
robber. She testified that the robber came into
the store a couple of times. ECF No. 17-6 at
166-67. He told her he was waiting for his wife
to come in, walked around the store, and left.
Id. at 167. He returned to the store
approximately 30 minutes later. Id.
Apparently recognizing the man, Martinez asked
him whether his wife had come back and he
responded that she was not coming in.
Id. at 168. He grabbed a brush, walked
to the register, and told Martinez he was there
to rob her. Id. at 167-68. As related by
the California Court of Appeal, the store was
well lit, Martinez had several conversations with
the robber, she was only about six feet away from
him during the first conversation and only a few
feet away during the second conversation, and she
was looking straight at him. Id. at
171-72.
Martinez’s
description of the robber to the police matched
petitioner’s description in several
particulars, including the Band-Aid on his face.
Id. at 180, 187-88. She identified
petitioner in the courtroom without hesitation.
Id. at 166. She also identified
petitioner as the robber after seeing his
photograph shortly after the robbery, at a later
photo lineup, and at a live lineup. Id.
at 180. Martinez was cross-examined extensively
on her identification of petitioner as the
robber. Id. at 181-90.
Carol
Crane testified without hesitation that
petitioner was the person who committed a robbery
at the Entenmann’s Bakery. Id. at
271. He was the only customer in the store at
that time. Id. at 272. She described in
detail from memory the robber’s movements,
actions, and statements after he entered the
store. Id. at 272-77. Although she did
not look at the robber for a long time, she was
only a short distance from him, was facing him,
and paid particular attention to him because he
had a Band-Aid on his face. Id. at 273.
She saw his face clearly and when he told her he
was armed, she looked at him “face
on.” Id. at 273, 277. The
store was well lit during these events.
Id. at 273. Crane was also
cross-examined about her ability to identify
petitioner as the robber. Id. at 285-86.
Natalie
Caballero also testified without hesitation that
petitioner was the person who robbed the
Entenmann’s store. Id. at 250,
264. She was able to describe in detail the
robber’s movements, appearance, and
statements after he entered the store.
Id. at 250-56. She was the employee who
waited on the robber. Id. at 251-52. The
robber asked her about some of the merchandise
while Caballero was standing approximately an
arm’s length from him. Id. at 252.
Caballero also remembered that the robber had a
Band-Aid on his face. Id. at 259.
Caballero was thoroughly cross-examined about her
ability to identify petitioner as the robber.
Id. at 265-67.
Sean
Kerwin testified without hesitation that
petitioner was the person who robbed the Tommy
Bahama store. Id. at 195. He also
described in detail the events surrounding that
robbery, including the robber’s
description, actions, and statements.
Id. at 196, et seq. Kerwin
talked to the robber “eye to eye or face to
face.” It was “pretty bright”
in the store and he could see the robber easily.
Id. at 201-02. He identified the robber
from a photographic lineup after having seen a
surveillance photo of the robber that his
corporate office had sent. Id. at
202-03. As noted by the California Court of
Appeal, Kerwin originally identified someone
other than petitioner at a live lineup, but later
identified petitioner after seeing a photograph
of the live lineup he had previously seen.
All
of the victims’ descriptions of the robber
to the police shortly after the robberies
occurred were reasonably accurate. All of them
had ample opportunity to view the robber at close
range for at least several minutes and engaged in
short conversations with him. They all agreed
that petitioner was the person who had robbed
them. They all identified petitioner at trial
without apparent hesitation. It appears from the
testimony of these victims that their in-court
identification of petitioner was based on their
memory of the robber at the time of the crimes
and not on the out-of-court identifications.
Under the “totality of the circumstances,
” this court concludes that the in-court
identifications of witnesses Crane, Martinez,
Caballero and Kerwin were reliable. Any
discrepancies between petitioner’s actual
appearance and the descriptions of the robber
given by these witnesses to the police were
thoroughly explored during cross-examination, as
were all other possible weaknesses in their
testimony. In this case, the indicators of the
witnesses’ ability to make an accurate
identification are not “outweighed by the
corrupting effect” of law enforcement
suggestion. Perry, 132 S.Ct. at 719.
Because
the in-court identifications of petitioner by the
witnesses were not unreliable, petitioner is not
entitled to relief on his challenges to the
victims’ identification of him as the
perpetrator of the robberies. The decision of the
California Court of Appeal to the same effect is
not “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. Accordingly, petitioner is not
entitled to federal habeas relief.
C.
Ineffective Assistance of Counsel
Petitioner
claims that his trial counsel rendered
ineffective assistance in failing to investigate
and present an alibi defense for the Fallas
Paredes robbery and in failing to challenge the
application of the Three Strikes Law to his case.
After setting forth the applicable legal
principles, the court will evaluate these claims
in turn below.
1.
Applicable Legal Standards
The
applicable legal standards for a claim of
ineffective assistance of counsel are set forth
in Strickland v. Washington, 466 U.S.
668 (1984). To succeed on a Strickland
claim, a defendant must show that (1) his
counsel's performance was deficient and that
(2) the “deficient performance prejudiced
the defense.” Id. at 687. Counsel
is constitutionally deficient if his or her
representation “fell below an objective
standard of reasonableness” such that it
was outside “the range of competence
demanded of attorneys in criminal cases.”
Id. at 687-88 (internal quotation marks
omitted). “Counsel’s errors must be
‘so serious as to deprive the defendant of
a fair trial, a trial whose result is
reliable.’” Richter, 131
S.Ct. at 787-88 (quoting Strickland, 466
U.S. at 687).
A
reviewing court is required to make every effort
“to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate
the conduct from counsel's perspective at the
time.” Strickland, 466 U.S. at
669; see Richter, 131 S.Ct. at 789.
Reviewing courts must also “indulge a
strong presumption that counsel's conduct
falls within the wide range of reasonable
professional assistance.”
Strickland, 466 U.S. at 689. This
presumption of reasonableness means that the
court must “give the attorneys the benefit
of the doubt, ” and must also
“affirmatively entertain the range of
possible reasons [defense] counsel may have had
for proceeding as they did.” Cullen v.
Pinholster, 563 U.S. 170, 196 (2011)
(internal quotation marks and alterations
omitted).
Defense
counsel has a “duty to make reasonable
investigations or to make a reasonable decision
that makes particular investigations
unnecessary.” Strickland, 466 U.S.
at 691. Counsel must, “at a minimum,
conduct a reasonable investigation enabling him
to make informed decisions about how best to
represent his client.” Hendricks v.
Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995)
(quoting Sanders v. Ratelle, 21 F.3d
1446, 1456 (9th Cir. 1994) (internal citation and
quotations omitted). See also Porter v.
McCollum, 558 U.S. 30, 40 (2009)
(counsel’s failure to take “even the
first step of interviewing witnesses or
requesting records” and ignoring
“pertinent avenues for investigation of
which he should have been aware”
constituted deficient performance). “A
lawyer who fails adequately to investigate, and
to introduce into evidence, records that
demonstrate his client's factual innocence,
or that raise sufficient doubt as to that
question to undermine confidence in the verdict,
renders deficient performance.” Vaga v.
Ryan, 735 F.3d 1093, 1096-97 (9th Cir. 2013)
(quoting Hart v. Gomez, 174 F.3d 1067,
1070 (9th Cir. 1999)).
On
the other hand, where an attorney has consciously
decided not to conduct further investigation
because of reasonable tactical evaluations, his
or her performance is not constitutionally
deficient. See Siripongs v. Calderon,
133 F.3d 732, 734 (9th Cir. 1998) (Siripongs
II); Babbitt v. Calderon, 151 F.3d
1170, 1173 (9th Cir. 1998); Hensley v.
Crist, 67 F.3d 181, 185 (9th Cir. 1995).
“A decision not to investigate thus
‘must be directly assessed for
reasonableness in all the
circumstances.’” Wiggins v.
Smith, 539 U.S. 510, 533 (200) (quoting
Strickland, 466 U.S. at 691).
Furthermore, “‘ineffective assistance
claims based on a duty to investigate must be
considered in light of the strength of the
government’s case.’” Bragg
v. Galaza, 242 F.3d 1082, 1088 (9th Cir.
2001) (quoting Eggleston v. United
States, 798 F.2d 374, 376 (9th Cir. 1986)).
See also Rhoades v. Henry, 638 F.3d
1027, 1036 (9th Cir. 2011) (counsel did not
render ineffective assistance in failing to
investigate or raise an argument on appeal where
“neither would have gone
anywhere”).
Prejudice
is found where “there is a reasonable
probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at 694. A
reasonable probability is “a probability
sufficient to undermine confidence in the
outcome.” Id. “The
likelihood of a different result must be
substantial, not just conceivable.”
Richter, 131 S.Ct. at 792. A reviewing
court “need not first determine whether
counsel’s performance was deficient before
examining the prejudice suffered by the defendant
as a result of the alleged deficiencies . . . .
If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient
prejudice . . . that course should be
followed.” Strickland, 466 U.S. at
697.
Under
AEDPA, “[t]he pivotal question is whether
the state court's application of the
Strickland standard was
unreasonable.” Id. at 785.
“[B]ecause the Strickland standard
is a general standard, a state court has even
more latitude to reasonably determine that a
defendant has not satisfied that standard.”
Knowles v. Mirzayance, 556 U.S. 111, 123
(2009).
2.
Alibi Defense
In
his third ground for relief, petitioner claims
that his trial counsel rendered ineffective
assistance in failing to thoroughly investigate
an alibi for the robbery committed on March 4,
2008 at the Fallas Paredes clothing store in
Vacaville, California. ECF No. 1 at 28.
Petitioner explains that he was out of the state
at the time of the robbery attending his
stepson’s basketball game and that he gave
his trial counsel “witnesses and
documentation that enabled her to obtain evidence
of time, date, and places that would prove and
corroborate defendant’s alibi.” That
evidence includes: (1) pictures obtained
“from the internet” showing defendant
attending his stepson’s basketball game in
Seattle, Washington; (2) rental car receipts
showing the rental and return of a rental car on
the relevant dates; and (3) “interviews of
witnesses by counsel’s investigator.”
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