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Webb v. Holland

United States District Court, E.D. California

October 29, 2019

DAVID CARLOS WEBB, Petitioner,
v.
KIM HOLLAND, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Petitioner is a California state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the petition filed on June 16, 2016, [1] ECF No. 1, which challenges petitioner's 2013 conviction for two counts of second degree burglary with use of a firearm. Respondent has answered, ECF No. 17, and petitioner filed a traverse.

         BACKGROUND

         I. Proceedings in the Trial Court

         A. Preliminary Proceedings

         Petitioner was charged with assault of a police officer with a semi-automatic firearm, unlawful firearm activity, and two counts of second degree robbery. ECF No. 18-1 at 53-55. The charges arose from two 2012 robberies and one 2012 incident involving a police operation to apprehend petitioner following the robberies.

         Trial commenced on October 12, 2012. The court provided the jury with preliminary instructions that included the following:

A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean, they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charges are true. . . .
. . .
You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge each witness by the same standards, setting aside any bias or prejudice that you may have. You may believe all, part, or none of any witnesses's [sic] testimony. Consider the testimony of each witness and decide how much of it you believe.
In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Some of the factors that you may consider are these: How well could the witness see, hear or otherwise perceive the things about which that witness testified? How well was the witness able to remember and describe what happened? What was the witness's behavior while testifying before you? Did the witness understand the questions and answer them directly? Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with somebody involved in the case, or a personal interest in how this case is decided?
What was the witness's attitude about the case or about testifying? Did the witness make a statement in the past that is consistent or inconsistent with that witness's testimony? How reasonable is the testimony when you consider all the other evidence in this case? Did other evidence prove or disprove any facts about which that witness testified? Did the witness admit to being untruthful? Has the witness engaged in other conduct that reflects on his or her believability?
Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things, or make mistakes about what they remember. Also, two people may witness the same event, yet see or hear it differently.
If you do not believe a witness's testimony that he or she no longer remembers something, that testimony is inconsistent with the witness's earlier statement on that subject; and finally, regarding witnesses, if you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says, or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.

ECF No. 18-4 at 62, 64-65.

         In his opening statement, petitioner's lawyer argued that robbery victim and witness Terry Mitchell (“Mitchell”) made multiple inconsistent statements. ECF No. 18-4 at 74. Counsel also commented that there “there is no evidence other than” Joaquin Raya (“Raya”) and Mitchell saying they were robbed. Id. Regarding Mitchell's and Raya's identification of petitioner from photographs, defense counsel encouraged the jury in his opening statement to “pay close attention to the features so that when the witness is describing what he remembers the person looked like, you can then see how that applies to the photos.” Id. at 79.

         B. The Evidence Presented at Trial

         The prosecution presented the following evidence regarding the March 24, 2012 Mitchell robbery. Mitchell testified that she was held up at gunpoint at approximately 2:00 a.m. on March 24, 2012 in a Kaiser emergency room parking lot in Vallejo, California. ECF No. 18-4 at 82-83. Mitchell testified that she was in an open door of the back seat of her car looking in her purse for her cell phone and “heard rapid footsteps coming up from behind” as if someone was running. Id. at 83-84, 86. She turned and saw a man about twenty feet away pointing a gun at her and running towards her. Id. at 84. As he neared, Mitchell kicked the man who then “got angry and shoved [her] back against the car” with his body. Id. at 85-86. Mitchell fell back into the car and the person with the gun jumped on top of her and jammed the gun into the side of her stomach several times. Id. at 88-89. Mitchell described the man's face as intimidating and looking at her as if to say, “Stop it.” Id. at 90. After Mitchell settled down, the man took her purse, showed it to her, jammed the gun in her side again, then got off her and ran off with her purse. Id. at 91, 92. The police showed up within five minutes and Mitchell gave a description of the robber. Id. at 93-94.

         When asked if she felt like she was able to get a good look at the person, Mitchell responded, “Oh, yes.” ECF No. 18-4 at 94. Mitchell described the person as wearing all black with a hood that obstructed part of the front of his face so that she could see his forehead, eyes, cheeks, and nose. Id. at 94-95. Mitchell testified that she “could see his eyes really well” and she could tell that he “was a light-colored black man.” Id. at 94-95. She further described the robber as average size with what she thought was a mustache, but the bottom part of the hood was covering somewhere around his lip area. Id. at 96. When asked if Mitchell would recognize the person if she saw them again, Mitchell responded, “Oh, yes, sir.” Id. at 101. Mitchell was asked if she saw the person in the courtroom and she identified petitioner. Id. When asked how she was able to confidently say she would recognize the person again, Mitchell testified that, “It's just a face you don't forget when they're on top of you.” Id. at 102.

         After the incident but while it was still fresh in her mind, officers showed Mitchell some pictures. ECF No. 18-4 102. Mitchell was told to look at the pictures, be honest, and not pick a photograph unless she was sure. Id. Mitchell testified that she was not so angry about what happened that she just wanted somebody held responsible. Id. Mitchell confirmed she wrote the following on the photograph she identified: “This is the person that looks like him that robbed me at gunpoint.” Id. at 103-04. She also testified that she did not have any uncertainty as to whether or not that was the person, and that she “took [her] time and made sure [she] was positive.” Id. at 104. Mitchell stated several times that she was positive about her identification of petitioner as the person who robbed her at gunpoint. See id. at 104-05. She reiterated that when she saw petitioner again, she “knew for sure from the picture to seeing him in person, it was that exact person.” Id. at 105.

         The Court of Appeal correctly described defense counsel's cross-examination as “vigorous[].” ECF No. 18-8 at 228. During cross-examination, Mitchell admitted that she recalled speaking with the police only “somewhat” because of the stress of the situation. ECF No. 18-4 at 110. Counsel questioned Mitchell regarding her prior testimony that she was behind the driver's side of the vehicle versus behind the passenger side of the vehicle when the robber approached. Id. at 122-24. Mitchell testified that the parking lot was “very well-lit” and that she saw the person making the footsteps coming toward her right at the moment she turned around. Id. at 126. Counsel asked Mitchell about her identification of petitioner from the photographs the police showed her. Id. at 144. Mitchell testified that she “recognized the face right away, but [she] still took time to look just to be sure and took away the ones that [she] knew for sure were not the gentleman, and [she] wanted to be sure, so [she] probably looked at them for a good five minutes.” Id. Counsel asked her if there was anything about the excluded photos that made her rule them out, and Mitchell responded, “No. The other ones just didn't look anything like the person that I knew that it was” and “[t]he other ones just weren't Mr. Webb.” Id. Regarding petitioner's hair, Mitchell testified that she did not know petitioner had hair at the time. As the Court of Appeal aptly noted, “Counsel asked Mitchell a number of questions about the assailant's hood and [petitioner's] shaved head in the photo. Mitchell testified consistently that she could not see any hair on [petitioner's] head and did not know whether he had any hair because of the hood.” ECF No. 18-8 at 232 n.5.[2] Also during cross-examination, Mitchell confirmed that the robbery was traumatizing for her, she was shaking because of the trauma, and she had nightmares and fear after the incident. ECF No. 18-4 at 153. When asked if any of the emotional turmoil that she went through could have affected her ability to see and recognize the person who was at her vehicle with the hooded jacket, Mitchell responded, “No, sir.” Id. at 154.

         During the prosecution's redirect examination, Mitchell confirmed that the lighting from the parking lot illuminated the car. Id. at 155. She also testified that she had “[a]bsolutely not” tried to embellish or change her story to have some sort of effect on the case, and that her memory of the incident had “stayed the same.” Id. at 155-57. The prosecutor asked Mitchell whether she felt pressured to identify any particular person to which Mitchell responded, “Oh, absolutely not. If anything, they were -- they, ‘Don't identify anybody if I didn't recognize anybody[.']” Id. at 158. Mitchell also did not feel that the photographs were presented in a way that one stood out among the others. Id.

         The prosecution presented the following evidence regarding the Raya robbery on April 7, 2012. Raya testified that he was in the business of selling medical marijuana through advertisements on websites including BudTrader.com. ECF No. 18-4 at 176-77. Raya received a text message from a person wanting to purchase medical marijuana, and he ultimately agreed to sell the person approximately two ounces to a quarter pound of marijuana for $800 or $900. Id. at 178, 80. Raya had a “couple thousand” in cash in his backpack because he was “going to look at . . . some rims and some car audio” equipment after he sold the medical marijuana. Id. at 180-81, 187. When Raya arrived at the meeting spot, an apartment building, he stayed on the phone with the person until he saw him emerge with another man. Id. at 181-82, 184. Raya identified petitioner as one of the men who emerged from the apartment building. Id. at 182. Raya described the man's voice on the phone as “[s]oft, feminine.” Id. While still on the phone, Raya asked the man to come out to his car, but the man refused so Raya got out of his car and went to him. Id. Raya testified that he spoke with the man who had the same voice he heard on the phone. Id. at 183-84. Raya was led towards the apartment. Id. at 184. The men were concerned Raya had a weapon and all three men pulled up their shirts to show they did not have weapons. Id. at 185. As they walked towards the apartment complex Raya started to get a “bad feeling because of the way they were acting, ” which he described as “really scared, sketchy, like nervous.” Id. at 186. The men asked to look in Raya's backpack again to confirm he did not have a gun. Id. at 188. When Raya showed them inside the backpack again, petitioner grabbed the bag out of his hand and the other man pulled out a gun. Id. at 188-89.

         When asked if he got a good enough look at the two people that he would have been able to recognize them after that date, Raya responded, “Yes.” Id. at 195. Raya testified that he was sure nothing was covering petitioner's face and he was not wearing a hat or hood. Id. at 196. After the robbery, Raya was contacted by the police to look at some photographs. Id. at 197. The police did not indicate they were hoping he would pick out a certain person and Raya did not feel any pressure to make some sort of identification. Id. at 197. Raya confirmed that he selected petitioner as the person that robbed him and wrote next to petitioner's photograph, “This is the guy that robbed me.” Id. at 198.

         Raya testified that he did not stop advertising on BudTrader.com and put up a new advertisement the next day with a different phone number. Id. at 199-200. Raya received a response to the new ad and recognized the text message as coming from a number associated with the robbers. Id. at 200-01. Raya had a conversation with the person and recognized the voice as the same man he spoke with on the phone previously. Id. at 202. Raya contacted the police to let them know the same man who robbed him was calling him again at a different number. Id. at 201.

         Raya confirmed that he identified petitioner as the person who robbed him. ECF No. 18-4 at 204. Raya did not think it was possible that his in-court identification was based on the fact that the police had showed him a photograph, as opposed to the fact that he was there during the robbery. Id. Raya was certain about who he was identifying as the person who robbed him. Id. at 205.

         During cross examination, defense counsel questioned Raya about his recollection of the details of the robbery and his identification of petitioner. See generally ECF No. 18-4 at 205-38. This included whether Raya recalled telling the officers that he had marijuana in his backpack and the money on his person, id. at 211, 219-22; Raya's identification of the two men who robbed him, id. at 216, 237-38; Raya's physical description of the perpetrators, including whether one of them had hair or a shaved head, id. at 217-19, 225, 237-38; the differences in the darkness of skin between the person Raya identified and the other photographs, id. at 221-22; whether Raya has a clear recollection of some of the events that happened, id. at 227; Raya's description of the clothing on the person who robbed him and whether the perpetrators were wearing jewelry or had tattoos, id. at 229-30, 233; and Raya's recollection of what time the robbery occurred and how much time passed during the robbery, id. at 233-36.

         Officer Steve Cheatham (“Cheatham”) met with Raya to show him photographs because they recently had a similar incident and he “wanted to see if [Raya] recognized anybody from when he was victimized.” ECF No. 18-4 at 244. Cheatham showed Raya six eight-by-ten photographs of individuals and explained to him that “[t]he person who may have victimized him may or may not be in the[] photographs.” Id. Cheatham did not suggest to Raya which of the photographs was a person of interest for him. Id. Cheatham testified that he put down photo number one and Raya looked at it, Cheatham put down photo number two and Raya looked at it, and when Cheatham “started putting down number three, [Raya] immediately told [him] that this was the person that had robbed him.” Id. at 246. Cheatham said Raya reacted “[e]xtremely quickly” to petitioner's photograph. Id. at 248. Raya told Cheatham that “the subject that he had identified in the photo was the subject who took his marijuana from him while [a] second subject pointed a gun at him.” Id. at 246.

         The prosecution also presented evidence regarding an undercover operation on April 13, 2012:

The same person who made the original contact with Raya to purchase medical marijuana on April 7 subsequently texted him again, this time in response to a new on-line ad put up by Raya the day after he was robbed. Raya responded to the text message, but did not let on that he was the victim from the earlier incident. Raya gave this information and the person's telephone number to the Vallejo police. Officer Fabio Rodriguez, posing as a marijuana distributor, called the phone number and spoke with defendant, who again identified himself as La John Hutchins. In a series of six or seven phone calls, Rodriguez set up a meeting with defendant to sell marijuana. Rodriguez spoke with the same person on the phone each time; the person had a somewhat feminine voice. The person wanted to meet at an apartment complex about a block and a half away from the complex where Raya was robbed and within two miles of Kaiser Hospital where Mitchell had been robbed a few weeks earlier.
Vallejo Police Department Sergeant Kevin Coelho supervised the operation, with the goal of apprehending defendant. Coelho chose a nearby church parking lot as the safest place to attempt the arrest in case shots were fired. The meeting was planned for 2:00 or 3:00 in the afternoon; it was considered an “extremely high-risk” operation.
Detective Jason Potts, posing as a marijuana dealer, spoke with defendant and negotiated a price to sell 20 ounces of marijuana. Potts noticed that the voice of the person he spoke with was polite and had an almost feminine tone. On April 13, after finally persuading defendant to meet in the church parking lot, Potts parked there in an undercover vehicle. Several minutes later, Potts saw defendant walking across the lot. Potts called the phone number again to see defendant answer the phone. Instead of answering, defendant patted his pants, and he and Potts exchanged waves. At this point, Potts recognized defendant based on prior contacts, thinking to himself, “Oh, that's David Webb, ” as soon as defendant waved at him. Potts called dispatch during the incident and asked for a photo of David Webb.
At that point, with defendant less than 40 feet away, Potts made the bust signal and threw a flash bang device. Defendant fell to the ground and then got up and ran. Sergeant Coelho and Detective Kent Tribble had been monitoring the situation from a van nearby; the van accelerated toward Potts and defendant. Coelho saw Potts and defendant running. Defendant was wearing a white jacket and dark jeans. Potts had started to give chase, but turned around when he realized that he had left a loaded firearm in his vehicle and other officers were chasing defendant. At that moment, defendant reached into his waistband area and looked at Potts over his shoulder. From about 15 feet away, officers saw defendant digging in his pocket for something as he ran. Detective Tribble thought defendant was reaching for a firearm and shouted, “He's got a gun. He's getting a gun.” Tribble then saw the rear portion of the gun defendant was attempting to remove. Sergeant Coelho saw defendant move his left hand to the left side of his waistband and remove a gun with his right hand from the waistband. Both Coelho and Tribble fired at defendant to protect Potts. Defendant ran up the stairs into the apartment complex next to the church. Coelho did not shoot again because defendant was no longer an immediate threat. Defendant was able to run past the perimeter officers and escape immediate apprehension.
The day after the failed undercover operation, Detective Tribble conducted a follow-up investigation at the apartment complex and found a white jacket that looked like the one defendant had been wearing. The jacket had bullet entry and exit holes in the upper portion of the left sleeve. Tribble viewed a hospital photograph of an African-American man with an exit wound in the left shoulder that was consistent with the location of the hole in the jacket. Tribble identified defendant as the person in the photograph.
On April 15, 2012, Officer Mathew Mustard interviewed defendant at the Solano County Jail. Defendant had a gunshot wound to his left shoulder and did not deny that he had been shot by police on April 13.
Officer Mustard reviewed phone records for the cell phone number involved in the Raya robbery and the undercover operation. The cell phone number was associated with defendant's name and date of birth. The cell phone records also contained evidence of communications with Raya on April 7, 2012. Text messages showed the name “La John Hutchins” when the user of the phone attempted to make purchases of marijuana.

ECF No. 18-8 at 224-26; see also ECF No. 184-4 at 253-290; ECF No. 18-5 at 3-38, 40-55, 60- 125, 138-76; 183-213.

         The court discussed jury instructions with counsel before the presentation of evidence ended. CALCRIM No. 315 was raised by the court, which noted that the instruction was “requested by the defense.” ECF No. 18-5 at 249. Petitioner did not request a modification of the instruction. Id. On the court's own motion, and after hearing arguments from the prosecution //// and defense counsel, Count 1 was eliminated under California Penal Code section 1118.1.[3] Id. at 293. The court then introduced counsel for closing arguments, and directed the jury that, “[a]s you listen to the attorneys argue, keep in mind, again, that what they say is not evidence” and “[y]ou will be the ultimate arbiters of what the facts in this case have been.” ECF No. 18-5 at 296.

         During the prosecution's closing argument, defense counsel made several objections that the court addressed. In overruling counsel's objection on the ground that the prosecutor's argument misstated the law, the court explained that it “will state the law to the jury and will tell the jury that to the extent the attorneys say something different, they're to disregard it.” ECF No. 18-5 at 299. The prosecutor made the following arguments during closing:

What we do want is, we want credible testimony from people about what they observed, so you could imagine that when someone goes through an event like Ms. Mitchell went through, she's not keeping track of time; she's not making measure of distances, but when she's got that person laying on top of her face-to-face, inches away, jamming a gun into her side, that face is burned into her memory.
And she sat here in front of you and she pointed to the defendant, I don't know how many times, I don't know how many different ways, and said, “I don't have any doubt that that is the person that robbed me at gunpoint on that day”, that's the way you want your system to work, so someone like that can get justice.
Let's talk about the sort of person that you would have to believe Ms. Mitchell to be in order for her to say those sort of things under oath and not really know it for sure. She understands, and I hope you remember this little line of questioning that I tried to go through with each Ms. Mitchell and Mr. Raya, about whether or not they understood just generally the consequences of someone being identified as a robber being brought to trial and that sort of thing.
The point of that was very specific, and that is that it would take an evil, horrible person to sit up there on the witness stand, knowing generally what's at stake in this sort of situation, and without being a hundred percent sure, even though they're testifying that they're a hundred percent sure, point to him and say, “He's the one that robbed me”. That would take a soulless, horrible person, and whatever evidence you have in this case, there is no evidence, or none reasonably, that Ms. Mitchell is that sort of human being that would do that to Mr. Webb, . . . unless she was sure.
She wasn't so angry about what happened that she wanted to have someone held responsible. She saw him do it, and she told you about it, and you should convict him on it. It's as simple as that, if the system works.
The same thing is true for Mr. Raya. He wasn't showing some sort of enthusiasm for being brought to Court. It didn't seem like he was thrilled about doing it, but he's telling you about something that happened to him, and he's trying to explain it to you as best as he can, based on the memory that he has of what happened.
Just like Ms. Mitchell, just like anyone else who would have been put through this situation that he was, he is not going to remember every single detail. You will not get in your jury instructions the law that you will be asked to consider in this case, a jury instruction that says: If someone gets a detail wrong, it means they're lying.
You'll get guidelines on how to determine credibility. Those guidelines are consistent with your common sense, and that's why the system works, because you are not supposed to come in here, after having lived your life making decisions based on common sense and good judgment, throw that out the window and say, “You know what? Because this person said some other distance at a preliminary hearing than they did at trial, I'm not going to believe what they say”.
The system wouldn't work if we did that. We would not be able to convict people who commit these sort of crimes.

ECF No. 18-6 at 3-5. Defense counsel lodged an objection that the prosecutor was misstating the law as to the procedures applicable to inconsistent statements and testimony. Id. at 5. The court overruled the objection, reiterating that it “already indicated to the jury that [it] will be giving them the law regarding how to interpret witness testimony, so counsel can argue . . . .” Id. The prosecutor concluded his opening argument with the following comments regarding Mitchell and Raya:

I don't expect that there will be any argument about whether or not Ms. Mitchell is an honest person, and whether or not Mr. Raya is an honest person. That would be an absurd argument to suggest that they're dishonest people coming in here and telling you about what they've been through, but whether or not that's argued, you saw them and you got to see who they are and what their memory is and how solid it is, and you'll get to make that determination, and ultimately, it's because you get to make this determination that the system works . . . .

ECF No. 18-6 at 17.

         Petitioner's counsel zealously argued misidentification in his closing statement. See generally ECF No. 18-6 at 20-46. Counsel challenged the reliability of Mitchell's identification, arguing that Mitchell's handwriting on petitioner's photograph changed, id. at 23; Mitchell did not realize the scope of the seriousness of what she was doing, id.; Mitchell forgot the date of the robbery, id. at 24; she presented more than one account of the robbery, id. at 24, 26; Mitchell's account does not “make[] any sense at all, ” id. at 25, 27; “[w]hatever happened to Ms. Mitchell, it wasn't [petitioner] that did that, ” id. at 26; the “different stories” are “so substantial it amounts to an absolute doubt, ” id. at 27; that eyewitness identification “is probably one of the weakest, most unreliable bits of evidence that we put in Court here, ” id. at 28; and the discrepancies in Mitchell's testimony “are so substantial that [the jury] can't possibly reasonably using [its] common sense find that [the charge] has been proven, ” id. at 29.

         Similarly, petitioner's counsel included the following arguments in his closing statement regarding Raya: the photos given to Raya were “put together with the specific intention of [petitioner's] picture standing out, ECF No. 18-6 at 30; there is a problem with connecting petitioner to the phone calls with Raya, id. at 31; someone would not put “cash for rims and audio stuff in the backpack with the marijuana that you are taking around and showing people and stuff, ” id. at 33; and Raya is “not imputed with some kind of automatic credibility because he complained to the police that he had been robbed, ” id. at 34.

         In sum, petitioner's counsel argued during his closing statement that nothing was given to the jury to substantiate Mitchell's identification and Raya was “just mixed up.” ECF No. 18-6 at 45-46.

         During the court's administration of jury instructions, the court explained to the jury: “Nothing that the attorneys said was evidence. In their opening statements and closing arguments, the attorneys discussed the case, but their remarks are not evidence. Their questions are not evidence, and only the witness's answers are evidence.” ECF No. 18-6 at 60. The court further explained to the jury:

You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice that you may have. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe.

ECF No. 18-6 at 64. The court also read CALCRIM No. 315 to the jury:

You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness ...

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