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Griffith v. Alfaro

United States District Court, C.D. California

January 19, 2017

DAVON CAREY GRIFFITH, Petitioner,
v.
SANDRA ALFARO, Warden, Respondent.

          FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE

         This Final Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.

         I.

         INTRODUCTION

         On April 28, 2014, Petitioner filed his Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. 1.) On March 23, 2015, with leave from this Court, Petitioner filed his First Amended Petition (“FAP”) to add additional exhausted claims. (Dkt. 29.) Petitioner is a California state prisoner currently serving a sentence of eighteen years for first degree robbery, plus a consecutive two years and eight months for a previous conviction of possession of cocaine for sale.

         Respondent filed an answer to the FAP on September 28, 2015. (Dkt. 41.) In response, Petitioner filed a traverse on January 22, 2016. (Dkt. 50.) For the reasons discussed below, the Court recommends that the Petition be DENIED.

         II.

         BACKGROUND

         On October 16, 2009, Davon Carey Griffith (“Petitioner”) and David Haliburton robbed a drug dealer named George Lopez. (Lodged Document (“LD”) 1; 1 Clerk's Transcript (“CT”) 173.) Petitioner broke down the door to Lopez's home and demanded that Lopez give him money. (Id.) Lopez was struck with a gun during the robbery. (Id.) Petitioner then tied up Lopez with a zip tie and ransacked the house, taking a watch, jewelry, and personal checks, as well as $1, 100 from Lopez's person. (Id.) When subsequently arrested by the police, Petitioner had Lopez's property in his possession. (Id.) Haliburton was caught at the scene with a semiautomatic handgun in his possession. (Id.)

         Petitioner's preliminary hearing in the robbery case was held on November 2, 2009. (1 CT 3.) Lopez testified at the hearing and was cross-examined by defense counsel. (1 CT 5-33.) Petitioner was held to answer on the two charged offenses- Penal Code § 211 (Robbery) and Penal Code § 245(a)(1) (Assault With a Deadly Weapon).[1] (1 CT 47.) Petitioner was arraigned on the charges on November 16, 2009. (1 CT 50.) His bail was later lowered from $250, 000 to $175, 000, and Petitioner had been released from custody by his next court date on June 8, 2010. (1 CT 60, 62.)

         On August 5, 2010, while out on bail in his robbery case, Petitioner was arrested for selling cocaine to an undercover police officer. (1 CT 174, 179.) Based on this new offense, Petitioner pled guilty to violating Health and Safety Code § 11351.5 (Possession of Cocaine Base for Sale) on January 31, 2011, and further admitted he had been convicted of a prior strike offense.[2] (LD 8 at 62.) On April 15, 2011, Petitioner was sentenced to six years in state prison in his cocaine case.[3] (Dkt. 58 at 13.)

         Although Petitioner pled guilty in his cocaine case, he went to trial in his robbery case. Lopez exercised his Fifth Amendment right against self-incrimination at trial and did not testify. The court admitted Lopez's preliminary hearing testimony as evidence. On July 22, 2011, a jury convicted Petitioner of violating Penal Code § 211(Robbery) and § 459 (Residential Burglary). The jury also found that a principal in the offense was armed with a handgun during the robbery. (1 CT 133, 135.) Petitioner was acquitted of all other charges and enhancements. (1 CT 133-136.)

         Petitioner was sentenced in his robbery case on September 26, 2011. (1 CT 232.) The People asked that Petitioner be sentenced to eighteen years in prison. (1 CT 172-73). Petitioner faced three, four, or six years in prison as a result of the robbery conviction, and the court chose the high term of six years based on aggravating factors.[4] (1 CT 176-79.) Petitioner's prior strike conviction doubled the term chosen by the court. (1 CT 179.) Because the prior strike was also a serious felony, the court was required to add another five years to Petitioner's sentence. (Id.) One more year was added for the principal firearm allegation. (Id.)

         Lastly, Petitioner's new conviction and sentence required that Petitioner be resentenced in his previous cocaine case. Although Petitioner's robbery and cocaine sentences would run consecutively, see Penal Code § 1170.12(a)(6), Petitioner would no longer serve the six years originally imposed in the cocaine case. Instead, the cocaine sentence became subordinate to the robbery sentence, and Petitioner could serve no more than one-third of the middle term prescribed for this felony. See Penal Code § 1170.1(a) (“The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses”). The middle term for a violation of Health and Safety Code § 11351.5 at that time was four years.[5] The sentencing judge added one-third of the doubled middle term, adding two years and eight months to Petitioner's aggregate sentence. (4 RT 646.)

         III.

         CLAIMS

         Petitioner asserts thirteen grounds for relief:

         Ground One: Petitioner was denied his Sixth and Fourteenth Amendment rights to confront witnesses when the trial court approved Lopez's blanket invocation of the Fifth Amendment privilege. (FAP at 7, 17, 21-23.)

         Ground Two: Petitioner was denied his Sixth and Fourteenth Amendment rights to effectively cross-examine the victim at the preliminary hearing, because the victim was not assisted by a Spanish-language interpreter at that proceeding. (FAP at 7, 17, 24.)

         Ground Three: Petitioner was denied his Sixth and Fourteenth Amendment rights to confront witnesses when the victim's preliminary hearing testimony was read to the jury, because the opportunity and motive to cross-examine the victim at the preliminary hearing was not the same as at trial. (FAP at 7-8, 17, 24-27.)

         Ground Four: Petitioner was denied his Sixth and Fourteenth Amendment rights to confront witnesses when the trial court allowed into evidence testimonial hearsay statements of Petitioner's co-conspirator referenced in the victim's preliminary hearing testimony. (FAP at 8, 17, 28.)

         Ground Five: Petitioner was denied his Sixth and Fourteenth Amendment rights to confront witnesses when the trial court allowed into evidence testimonial hearsay statements of the victim captured on wiretaps. (FAP at 8, 17, 29-31.)

         Ground Six: Petitioner was denied his Sixth and Fourteenth Amendment rights to a fair trial when the trial court admitted the victim's inadmissible hearsay statements captured on wiretaps. (FAP at 9, 17, 31-35.)

         Ground Seven: Petitioner was denied his Sixth and Fourteenth Amendment rights to a fair trial when the trial court failed to sua sponte instruct the jury on lesser included offenses. (FAP at 9, 17, 35-37.)

         Ground Eight: Petitioner's due process rights were violated when the prosecution failed to prove the firearm allegation beyond a reasonable doubt. (FAP at 9, 17, 37-38.)

         Ground Nine: Petitioner's Sixth and Fourteenth Amendment rights to a jury trial were violated because the firearm allegation was not found true by a jury. (FAP at 9-10, 17-18, 39.)

         Ground Ten: Petitioner was denied his Fifth, Sixth, Eighth, and Fourteenth Amendment Rights when the government breached his plea agreement in Superior Court case number BA374493 (“the cocaine case”), and the trial court erred by resentencing him in that case. (FAP at 10, 18, 40-41.)

         Ground Eleven: Petitioner was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel when his trial counsel failed to object to each of the errors asserted in Grounds One through Ten. (FAP at 10, 28, 41-42.)

         Ground Twelve: Petitioner was denied his Sixth and Fourteenth Amendment rights to the effective assistance of counsel when his appellate attorney failed to raise each of the errors asserted in Grounds One through Ten. (FAP at 10, 18, 42-43.)

         Ground Thirteen: Petitioner was denied his Sixth and Fourteenth Amendment rights because the cumulative effect of the aforementioned errors prejudiced his entire trial and/or his direct appeal. (FAP at 11, 18, 44.)

         IV.

         STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):

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.

28 U.S.C. § 2254(d). The “clearly established Federal law” that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions “as of the time of the relevant state court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

         Although a particular state court decision may be both “contrary to” and “an unreasonable application of” controlling Supreme Court law, the two phrases have distinct meanings. Williams, 529 U.S. at 391, 413. A state court decision is “contrary to” clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Williams, 529 U.S. at 405-06.

         State court decisions that are not “contrary to” Supreme Court law may be set aside on federal habeas review “if they are not merely erroneous, but an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts.” Early, 537 U.S. at 11 (citation omitted). A state court decision that correctly identified the governing legal rule may be rejected if it unreasonably applied the rule to the facts of a particular case. Williams, 529 U.S. at 406-10, 413 (e.g., the rejected decision may state the Strickland standard correctly but apply it unreasonably). However, to obtain federal habeas relief for such an “unreasonable application, ” a petitioner must show that the state court's application of Supreme Court law was “objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002); Williams, 529 U.S. at 413. An “unreasonable application” is different from an erroneous or incorrect one. Williams, 529 U.S. at 409-10; Woodford, 537 U.S. at 25. Moreover, review of state court decisions under Section 2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011).

         As the Supreme Court explained:

Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here [i.e., where there was no reasoned state court decision], could have supported, the state court's decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.

Harrington v. Richter, 562 U.S. 86, 102 (2011). Furthermore, “[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 fair-minded disagreement.” Id. at 103.

         On appeal, appointed counsel for Petitioner filed a brief which raised no issues but requested an independent review of the record pursuant to People v. Wende, 25 Cal.3d 436 (1979). See People v. Griffith, 2012 WL 3185825, at *2 (Cal.Ct.App. 2012). Petitioner, however, filed a brief raising a sufficiency of the evidence claim that does not correspond to any of the claims raised in the instant FAP. Id. The California Court of Appeal affirmed Petitioner's conviction and sentence. Id.

         Petitioner's first ground for federal habeas relief was presented to the Los Angeles Superior Court (“Superior Court”) in a state petition for writ of habeas corpus, filed on July 9, 2013.[6] (LD 4 at 25, at Ground Three.) The Superior Court denied the petition in a reasoned decision. (Id.) Petitioner presented the same claim to the California Court of Appeal and the California Supreme Court. Both summarily denied the claim. (LD 6; LD 7.) For purposes of applying AEDPA, § 2254(d), the Court will look to the Superior Court's 2013 decision as the relevant state-court adjudication on the merits for Ground One. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”).

         All thirteen grounds were presented in Petitioner's second state habeas petition, filed on June 17, 2014.[7] (See LD 4 at 26.) They were denied by the Superior Court's 2014 reasoned decision, followed by summary denials by the California Court of Appeal and the California Supreme Court. (LD 4 at 26-28; LD 9; LD 11.) As to Grounds Two through Four, Six through Ten, and Thirteen, the Court will look to the Superior Court's 2014 decision as the relevant state-court adjudication on the merits.[8] See Gonzales v. Brown, 585 F.3d 1202, 1206 (9th Cir, 2009) (federal habeas courts “apply AEDPA deference to any state court decision on the merits”).

         In his 2014 habeas corpus petition to the Superior Court, Petitioner's claim in Ground Five was that the admission of Lopez's wiretapped statements violated his Confrontation Clause rights.[9] The Superior Court addressed this claim as a challenge to the admission of the victim's preliminary hearing testimony. The Superior Court's response to Ground Five is as follows: “it is well settled that an unavailable witness who testified at a preliminary hearing may have his/her preliminary hearing testimony read during trial.” (LD 4 at 27.) This evidentiary ruling does not fully respond to Petitioner's federal claim. Thus, the Superior Court did not reach a decision on the merits with regard to Ground Five.

         Additionally, the Superior Court's decision was erroneous with respect to Grounds Eleven and Twelve. These ineffective assistance of counsel claims were raised for the first time in Petitioner's 2014 habeas petition to the Superior Court. The Superior Court rejected those claims on the grounds that the “2nd District Court of Appeal and the California State Supreme Court both found no such error. This court concurs.” (LD 4 at 27-28.) However, Grounds Eleven and Twelve had not been previously presented to neither the California Court of Appeal nor the California Supreme Court at the time the Superior Court ruled on the claims.

         Accordingly, the California Court of Appeal's denial cannot be presumed to have rested on the Superior Court's 2014 decision with respect to Grounds Five, Eleven, and Twelve. Ylst, 501 U.S. at 804 (“[The Court] do[es] not suggest that the [look-through] presumption is irrebuttable; strong evidence can refute it.”). To presume that the Court of Appeal's denial rested on these inaccurate grounds would be “simply a most improbable assessment of what actually occurred.” Id. The California Court of Appeal explicitly stated that it read and considered Petitioner's habeas petition and the file pertaining to the underlying conviction. (LD 9.) Therefore, the Court will assume that the Court of Appeal adopted an alternative reason on the merits to reject these three claims. Accordingly, because the Court of Appeal's adjudication is unexplained, the question under § 2254 is “whether there is any reasonable argument supporting the state court's denial of relief.” Richter, 562 U.S. at 98, 105.

         V.

         DISCUSSION

         A. Ground One: Trial Court's Acceptance of Lopez's Blanket Invocation of the Fifth Amendment.

         According to Petitioner, the trial court violated his Sixth and Fourteenth Amendment rights to confront witnesses against him when it approved the sole complaining witness's blanket invocation of the Fifth Amendment during trial. (FAP at 7, 17, 21-23.) The Court disagrees.

         1. Relevant Proceedings.

         The victim and sole complaining witness, George Lopez, testified at the preliminary hearing on November 2, 2009. (1 CT 5-33.) At a pre-trial hearing on June 15, 2011, Lopez appeared in court, was sworn as a witness, and indicated that he wished to invoke his Fifth Amendment right not to incriminate himself. At the time, Lopez was a defendant in a pending drug case. (See 2 Reporter's Transcript (“RT”) 113, 115.) He indicated that he had spoken to an attorney, who was not present. (2 RT 55-59.) The court ultimately continued the hearing so that Lopez's attorney could be present to assist him. (2 RT 59.)

         Lopez and his attorney appeared in court the next morning. (2 RT 108-09.) Lopez's attorney noted that he would allow Lopez to answer questions relating to his name or date of birth, but he would advise Lopez not to answer questions related to “his occupation, any criminal charges pending against him, [or] anything that can be used in an open proceeding that I'm currently representing him[.]” (2 RT 115.) The first question posed by the prosecutor was “Mr. Lopez, are you a drug dealer?” (2 RT 110.) Lopez responded, “My answer is yes, but I want to take the Fifth Amendment.” (Id.) Petitioner's counsel argued that by answering the question, Lopez waived his Fifth Amendment rights. Both the prosecutor and defense counsel noted that to the extent Lopez would refuse to answer questions on cross-examination, his direct examination would be stricken. In that situation, defense counsel preferred that he not testify on direct examination at all. (2 RT 116.) As a result, the trial court found that Lopez's invocation rendered him unavailable as a witness and that his preliminary hearing testimony could be introduced in lieu of testimony at trial.[10] (2 RT 230.)

         Defense counsel asked the court to require Lopez to invoke his Fifth Amendment right before the jury, or at least have him shown to the jury. The trial court denied this request. (2 RT 60, 114; 1 CT 110-112.) At trial, Lopez's preliminary hearing testimony was read to the jury. (3 RT 265-99.)

         On habeas review, the Superior Court's 2013 decision denied relief on this claim, stating, “George Lopez was subject to cross-examination. The Court of Appeal found no error in this court's handling of the testimony set forth during the preliminary hearing.” (LD 4 at 25.)

         2. Applicable Law.

         The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause ordinarily bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

         The Fifth Amendment provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The privilege “must be accorded liberal construction” and applies both to “answers that would in themselves support a conviction” and “those which would furnish a link in the chain of evidence needed to prosecute the claimant.” Hoffman v. United States, 341 U.S. 479, 486 (1951). The invocation of the Fifth Amendment privilege against self-incrimination “must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.” Id.

         3. Analysis.

         Petitioner cites Ninth Circuit precedent for the proposition that blanket invocations of a witness's Fifth Amendment privilege should not be permitted unless the trial court knows that the witness can legitimately refuse to answer all relevant questions. (FAP at 22.); see U.S. v. Bodwell, 66 F.3d 1000, 1001 (9th Cir. 1995) (“The only way the Fifth Amendment can be asserted as to testimony is on a question-by-question basis.”); U.S. v Pierce, 561 F.2d 735, 741 (9th Cir. 1977) (“A proper application of this standard requires that the Fifth Amendment claim be raised in response to specific questions propounded by the investigating body.”); United States v. Vavagas, 151 F.3d 1185, 1192 (9th Cir. 1998) (“The court's duty to scrutinize a witness' invocation of the Fifth Amendment is particularly weighty where, as here, the witness makes a blanket assertion of the privilege.”).

         Under AEDPA, however, Petitioner's claim must fail. There is no clearly established Supreme Court authority establishing that a witness's blanket invocation of his Fifth Amendment right against self-incrimination violates the Confrontation Clause. See Arredondo v. Ortiz, 365 F.3d 778, 782 (9th Cir. 2004) (“Hoffman…[does not] hold that the [Fifth Amendment] privilege must always be invoked question-by-question); Woods v. Adams, 631 F.Supp.2d 1261, 1292 (C.D. Cal. 2009) (“The Supreme Court has never explicitly held that a trial judge may not accept a witness's ‘blanket invocation' of the Fifth Amendment privilege without first subjecting the witness to particular questions.”). Accordingly, the Superior Court's rejection of this claim was neither contrary to nor an unreasonable application of Supreme Court precedent.

         Neither was the Superior Court's rejection of Petitioner's claim an objectively unreasonable determination of the facts. As noted above, testimonial statements of a witness not testifying at trial can be admitted if the witness is unavailable and the defendant had an earlier opportunity to cross-examine the witness. See Crawford, 541 U.S. at 53. Lopez's blanket invocation of his Fifth Amendment privilege certainly made him unavailable. Petitioner had an opportunity to cross-examine Lopez ...


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