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Brandon v. Arnold

United States District Court, N.D. California

March 30, 2017

KAIAN BRANDON, Petitioner,
v.
ERIC ARNOLD, Warden, [1]Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          SAUNDRA BROWN ARMSTRONG Senior United States District Judge.

         Petitioner Kaian Brandon (“Petitioner”) brings the instant pro se habeas action under 28 U.S.C. § 2254 to challenge his conviction and sentence rendered in the Alameda County Superior Court for second degree murder and assault on a child causing death. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby DENIES the Petition for the reasons set forth below.

         I. BACKGROUND

         A. Statement of Facts

         The following facts are taken from the unpublished opinion of the California Court of Appeal (“Court of Appeal” or “state appellate court”):

A. Circumstances of Crime
On Tuesday, November 8, 2005, three-year-old Kiara “Kiki” Irwine was ill with a fever and vomiting. Her mother, Danell Johnson, usually worked a shift from approximately 3:00 a.m. to 9:00 a.m., but she did not go to work on Wednesday, November 9, 2005, opting to stay home and care for her child. Kiara seemed better on Wednesday morning. Her fever had gone down. By the end of the day, the child seemed like herself again. Johnson went to work as usual on Thursday, November 10, 2005. When she returned home about 10:00 a.m. that morning, Kiara seemed fine. Johnson gave the child a shower and dried her off, seeing no bruises on her body. Kiara did not wince or complain of any pain. She played normally on Thursday and seemed to enjoy her dinner that night.
On Friday, November 11, 2005, Johnson left her San Leandro apartment to begin her work shift. She left all four of her children-Kiara, six-year-old T., five-year-old K.S. and baby Ke.-in the care of the baby's father, appellant Kaian Brandon. Brandon was employed but was off work that week. Before leaving for her job, Johnson checked on her sleeping children. She saw Kiara nestle down deeper under her cover.
Kiara was still being toilet-trained and she sometimes had accidents. In the morning, Brandon discovered that Kiara had soiled herself and her bed with feces. About 9:00 a.m., while Johnson was still at work, she received an emergency call from Brandon, telling her that Kiara was “lifeless.” She told him to call 911 and left immediately for home. When Brandon called 911, the dispatcher advised him how to perform CPR while the paramedics were en route to the home.
Paramedics arrived, finding Kiara lying on her back on the living room floor. Brandon told the paramedics that he found her unconscious on the couch. She was clad only in a shirt. Kiara's skin was warm but she was not breathing. CPR was performed without success; Kiara's heart had stopped. She was transported by ambulance to Eden Medical Center.
By this time, Johnson had arrived at home. As she helped the other children into their coats in Kiara's bedroom, she stepped in feces lying on the floor. Johnson, Brandon and the other children went to the hospital. After 40 minutes of CPR, Kiara still had no heartbeat. She was pronounced dead at the hospital. The doctors told Brandon and Johnson that they suspected that Kiara had suffered a ruptured appendix.
Meanwhile, Alameda County Sheriff Sergeant Richard Carter went to the hospital and observed multiple bruises on Kiara's body. He met with Johnson and Brandon at the hospital. At that point, he conducted an interview, not an interrogation. He particularly wanted to talk with Brandon, the last adult who had been with Kiara.
Brandon told Sergeant Carter that when he went in to check on Kiara, she had defecated on herself in bed. He gave her a bath and returned her to bed. Five minutes later, when he went to check on her, the child was not moving. Kiara was lifeless. He called Johnson, who urged him to call 911, which he did. Brandon told the sheriff that the dispatcher instructed him to do CPR, but that he pushed on her stomach, not her chest. [FN 2] During the interview, Brandon kept saying “I can't believe she's dead.” [FN 2:] The transcript of the 911 call did not suggest that Brandon performed CPR in an incorrect manner.
Sergeant Carter also went to the apartment where Brandon and Johnson lived. He found urine and feces on Kiara's bed sheets. That struck the sheriff as odd when he recalled that Brandon had reported that he took Kiara back to bed after bathing her.
Alameda County Sheriff Deputy Duane Fisher also interviewed Brandon later that day. Brandon told Deputy Fisher that when he went into the bedroom that morning, he discovered that Kiara had defecated on herself. Brandon said that he put her in a bath and then returned her to her room. Five minutes later, when Brandon went back into the bedroom to check on Kiara, she was slumped over and unresponsive on the bedroom floor.
On November 14, 2005, a forensic pathologist conducted an autopsy of Kiara's body. Her head, neck, torso, legs and left arm showed bruising-the result of blunt force trauma. The body also showed evidence of internal bleeding, organ damage-most significantly, to the liver, pancreas and small intestine-and rib fractures [FN 3] consistent with blunt force trauma. Later, the pathologist opined that the cause of Kiara's death was multiple blunt injuries. He explained that these injuries were the result of repeated applications of force by someone other than a child. They could not have been caused by a fall or by the performance of CPR. Instead, they were consistent with severe child battering. Most of these injuries were recent-likely suffered within three days of death. [FN 4] The child would likely have lost consciousness a few minutes after injury.
[FN 3:] One rib fracture was older and already healing. The two recent ones were highly uncommon in small children, according to an expert on child abuse.
[FN 4:] At trial, a sheriff's detective who witnessed the autopsy testified that the pathologist told him that Kiara's injuries were “very fresh” and had probably occurred within 12 hours of her death. The pathologist did not believe that the child would have lived any longer than 12 hours with these injuries.
B. Pretrial Matters
On the same day that the autopsy was conducted, Brandon was arrested. Two days later, he was formally charged with murder and assault on a child causing death. (§ 187, subd. (a); former § 273ab.) He was arraigned that day and referred to the public defender. Brandon was soon represented by Deputy Public Defender Bonnie Narby. In May 2006, Brandon pled not guilty to the charges.
On June 8, 2007, Brandon made a Marsden motion challenging Narby. (See People v. Marsden (1970) 2 Cal.3d 118, 122-126 (Marsden).) The motion was heard in camera on June 15, 2007, before Judge Julia Spain. Brandon expressed his dissatisfaction with Narby's representation; she responded to these concerns. Finding that there had been a complete breakdown in the attorney-client relationship, Judge Spain granted the Marsden motion and referred the matter for the appointment of new counsel. She ordered that a transcript of the hearing be filed under seal.
On July 9, 2007, [FN 5] the public defender petitioned for writ of mandate in this matter, seeking to overturn Judge Spain's order. The public defender filed a memorandum of points and authorities in support of that petition. It also requested that the transcript of the June 15, 2007 Marsden hearing and its memorandum of points and authorities in support of its petition for writ of mandate be sealed.
[FN 5:] On August 6, 2007, an identical petition was filed. The record contains no explanation why a second petition was filed.
On August 2, 2007, Judge Larry J. Goodman ordered that the Marsden transcript, part of the petition for writ of mandate, and the memorandum of points and authorities in support of that petition be sealed. The next day, Judge Goodman issued an alternative writ of mandate. It appears that no hearing was conducted at this stage-neither Brandon, the prosecutor nor defense counsel were present at the time of the ruling. The alternative writ gave Judge Spain the option of vacating her June 15, 2007 order and reinstating Narby as counsel, or showing why Judge Goodman should not do so. The notice stated that if Judge Spain vacated her earlier order, the alternative writ would be discharged and the petition for writ of mandate denied as moot. The alternative writ was served on Judge Spain three days after issuance. On August 9, 2007, Judge Spain vacated her earlier order, reinstated Narby as Brandon's counsel, and denied the Marsden motion. Deputy Public Defender Charles Denton appeared at this hearing with Brandon. [FN 6] On August 20, 2007, Judge Goodman dismissed the petition for writ of mandate as moot. [FN 7]
[FN 6:] Denton was the same attorney who filed the petition for writ of mandate. To the extent that Brandon argues that this constituted a conflict of interest, even if we assume that this was pretrial error, he has not demonstrated any trial prejudice resulting from it. (See pt. II.B.2., post.)
[FN 7:] Our records offer no evidence that Brandon sought extraordinary writ review of Judge Goodman's order.
A new public defender-someone other than Narby-now represented Brandon. An amended complaint was filed in April 2008, adding two counts of child abuse against Kiara and K.S. committed before Kiara's death, one of them enhanced by the infliction of great bodily injury on a child. (§§ 187, subd. (a), 273a, subd. (a); former §§ 273ab, 12022.7, subd. (d) [Stats. 2002, ch. 126, § 6, pp. 696-697].) Brandon pled not guilty to all four charges and denied the enhancement allegation.
A two-day preliminary examination was conducted at which Brandon was represented by Deputy Public Defender Barbara Dickinson. On September 18, 2008, he was held over for trial on all four charges and the great bodily injury enhancement. (§§ 187, subd. (a), 273a, subd. (a); former §§ 273ab, 12022.7, subd. (d).) On September 26, 2008, he was charged by information with the same four charges, one enhanced by an allegation of infliction of great bodily injury. (§§ 187, subd. (a), 273a, subd. (a); former §§ 273ab, 12022.7, subd. (d).)
In October 2008, Brandon pled not guilty to these charges. He also moved to dismiss the information. (§ 995.) That motion was denied on the murder and assault charges, but the two child abuse counts were stricken in March 2009. (§ 273a, subd. (a).)
C. Prosecution Case-in-chief
Brandon was tried on the remaining two charges in March 2010, represented by Dickinson. Johnson testified for the prosecution. She told the jury what she knew about the circumstances of Kiara's death, which had occurred on Brandon's birthday. She testified that when a detective asked Brandon at the hospital what had happened, he reported that Kiara had soiled herself. He made her clean up, then sent her to her room after she appeared in the kitchen without any pants on. She did not come back to the breakfast table, so he went to her room, where he found her lying on the bedroom floor.
Initially, Johnson believed that Kiara had died as the result of a ruptured appendix. On Monday, November 14, 2005, sheriff's deputies came to the apartment and told Johnson and Brandon that Kiara had not died of natural causes. Brandon went with the police to talk with them. Johnson also went to the police station. While she was gone, Child Protective Services removed T., K.S. and Ke. from the home. At trial, Johnson admitted that she disciplined her children with a slap or a belt. She admitted that she sometimes wore a ring. She denied killing Kiara.
Brandon's 911 call to police was played for the jury. Brandon had been the only adult with the four children at the time that Kiara was injured. K.S.-who was nine years old at the time of trial-testified that after Kiara defecated on the floor, Brandon punched her sister in the stomach with a closed fist.
A neighbor testified that she heard a man in the next apartment-the one occupied by Johnson and Brandon-say “I don't care if you die.” [FN 8] She thought this happened on the morning of November 11-the same day that the little girl who lived next door died. She told the jury that the police had interviewed her the same day. She told the police that a man and woman had been arguing. After she learned that the woman was at work, the neighbor changed her statement, saying that she had guessed that the man and woman were arguing. An audiotape of the statement that the neighbor gave to police was played for the jury. The neighbor admitted that she did not tell the police about the man's statement until a week or so after the child died.
[FN 8:] When he testified, Brandon denied making this statement and noted that Johnson was not at the apartment the morning that Kiara died.
A child abuse expert reviewed Kiara's autopsy records. He opined that she sustained multiple blows to various parts of her body that caused great injury, ultimately causing her death. He estimated that 30 percent of her body's blood was found in her abdomen. Her pancreas was torn in half, an uncommon occurrence. He thought it likely that an extremely powerful traumatic blow to the abdomen pushed Kiara's pancreas against her bones, breaking it. In his experience, a young child defecating can trigger an adult to anger and child abuse. The expert opined that if Kiara was behaving normally the day before she died, then her injuries were inflicted after that time.
D. Challenge to Proposed Impeachment Evidence
After the prosecution rested, Brandon challenged the admissibility of evidence of incidents of violence he committed against his mother and sister. He argued that the prosecution had failed to disclose the 24 police reports during pretrial discovery, noted that the evidence from 1998 through 2000 was older, and urged the trial court to find that the evidence did not constitute evidence of moral turpitude. The trial court found that the disclosure was timely, as the reports were sent to defense counsel as soon as the prosecution received them. It agreed to review the admissibility of specific reports on a case-by-case basis, depending on what Brandon said when he testified. His motion for acquittal was denied. (See § 1118.1.)
E. Defense Testimony
Brandon testified in his own defense. He told the jury that although he and Johnson argued sometimes, he had been happy living with her and the children. He recalled that Kiara was still sick-still throwing up-the day before she died. That Thursday night, Kiara did not eat much dinner. He did not put the children to bed that night; he assumed that Johnson must have done it. Brandon was asleep, but he woke up when Johnson was getting ready to go to work. She told him not to get up, which was unusual. Normally, he walked her out to her car when she left for work. He did not do so that night, but went back to sleep after Johnson left.
November 11 was a school holiday, so it was a relaxed morning. The older siblings came running in for breakfast, but Kiara was moving slowly. She was wearing training pants, and Brandon saw that she had defecated on herself. Some of the feces were smeared on her bottom; most of the solid feces had fallen out on the bedroom floor. He spoke to her in a loud voice about this, but he did not yell at her. He removed Kiara's clothes and gave her a quick bath [FN 9] so she could eat breakfast with the other children. He dried her off and told her to go get dressed, which she could do for herself. [FN 10] He went to get breakfast ready. Within five minutes, Brandon noticed that Kiara had not come out to the kitchen, so he went to the bedroom. He found her lying on the floor.
[FN 9:] Brandon did not see any bruises on Kiara's body when he took her out of the bath.
[FN 10:] Johnson testified that Kiara needed help getting dressed.
Kiara was not breathing. Brandon panicked, unsure what to do. Everything was moving so fast. There was nothing in her mouth. He hit Kiara on the back, hoping to dislodge anything blocking her breathing. He called Johnson and then called 911. The 911 dispatcher walked him through how to do CPR. He moved Kiara to the living room floor to do CPR.
The paramedics arrived quickly. Brandon told the jury that he told one paramedic that he found Kiara in her room and moved her to the living room. Johnson arrived, the family dressed and they drove over to the hospital. A doctor told Johnson and Brandon that Kiara was not going to live and that she probably had a ruptured appendix.
Brandon kept the police advised of his whereabouts, knowing that they would want to talk with him. He had been the only adult in the house on the morning that Kiara died. He feared that he performed CPR incorrectly, pushing on her stomach rather than her chest. Brandon told the jury that Kiara's injuries were awful, but that he did not know how the child came to be so injured. He suggested that Johnson must have beaten Kiara.
On cross-examination, Brandon denied being angry with Kiara that morning or having an anger problem. He denied holding a gun to his mother's head and threatening to kill her. He told the jury that he was not the kind of man who hit his mother. He admitted having been arrested, but only for an outstanding warrant based on a gun incident.
A sidebar conference was conducted. When the prosecution inquired about Brandon's arrest history, defense counsel objected to the admission of the proffered evidence. She argued that the evidence was irrelevant, pertaining only to a collateral matter. She asked that the prosecutor be found to have committed misconduct and moved for a mistrial. The motion was denied. ...

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