United States District Court, E.D. California
FINDINGS & RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Petitioner challenges her 2013 conviction for
attempted premeditated murder of a police officer in the
performance of his duties during which a principal was armed
with a gun (Count 1), evasion of police pursuit while
personally using a gun (Count 2), being a felon in possession
of a gun (Count 3), and concealing or withholding a stolen
car (Count 4). Petitioner contends (1) the trial court
committed instructional error, (2) evidence of prior
misconduct was improperly admitted, (3) the prosecutor
committed misconduct, (4) there existed cumulative error, and
(5) the restitution was erroneous. For the reasons set forth
below, this Court will recommend that the petition be denied.
California Court of Appeal for the Third Appellate District
provided the following factual summary of Petitioner's
The Pursuit and Shooting
In accordance with his usual practice of randomly checking
the status of license plates while on patrol, an officer
driving on Broadway in Sacramento on the morning of May 18,
2012, discovered that a Camry with four occupants was listed
as stolen from Chico. He followed the Camry, requesting
assistance. The Camry drove south through the Land Park
neighborhood before doubling back northbound on Freeport
Boulevard. By now, there was a procession of five or six
police vehicles following it. The Camry turned into the
parking lot at Sacramento City College and then suddenly
accelerated, driving over the lawn and back onto the street.
The police eventually called off the chase because it reached
excessive speeds through the residential Hollywood Park
neighborhood before the Camry turned into a schoolyard where
children were taking recess outside. The Camry sped across
the football field and through the perimeter fence to the
street on the other side. A witness in the schoolyard could
see that a man was driving the car.
Shortly afterward, a driver saw a car (which he called a
Corolla) come screeching to a near stop on Meer Way just off
Freeport. Two men jumped out. One ran off; the other stood
around “trying to look rather nonchalant.”
Officers reinitiated pursuit as the Camry sped north on
Freeport. As they approached McClatchy High School, dispatch
again cancelled the chase for reasons of public safety.
Heading west on Second Avenue (the first through street),
officers found the Camry abandoned near Marty Way and Fourth
Avenue, pointed to that location along the way by pedestrians
who had observed the route of the car. About three blocks
away, another officer canvassing the neighborhood observed a
man and a woman who were walking rapidly on Swanston Drive
toward Riverside Boulevard. They caught his attention because
they seemed out of place for the neighborhood (the man
wearing a leather trench coat without a shirt). The woman was
The officer parked his car near them and got out. He asked
them to approach him. The man immediately became upset and
protested that he was not on parole. As he was backing up, he
was feeling for something in his pants with one hand, and
then stuck his other hand in his pocket. The officer,
concerned about his safety, drew his gun and told the man to
raise his hands. The man turned and headed quickly down
Riverside. The officer followed after him as the man turned
onto Robertson Way, with defendant trailing the officer. The
officer thought it odd that the man was not really making a
concerted effort to escape.
A canine officer arrived and took over the chase, sending his
canine partner (Bodie) after the man, who had fled into a
backyard. Officers were in the process of taking defendant
into custody when they heard shots fired.
The canine officer had followed Bodie into the backyard. He
saw Bodie run into the overgrown shrubbery after the man, who
turned and fired a gun at the dog. The officer heard Bodie
yelp, at which point the man turned to face the officer
through the bushes. The officer heard a shot fired in his
direction. The officer returned a volley of shots. The man
fell, and the officer turned his attention to Bodie, who was
bleeding profusely from the mouth. The officer drove Bodie to
an emergency veterinary hospital in Rancho Cordova. The
bullet had shattered Bodie's left jaw, severed his
tongue, and fractured two bones in his paw. After two
surgeries and extensive care, Bodie recovered from his
injuries but was unable to resume his function as a canine
Following the shots, the man's legs were visible on the
ground under the bushes, but he was unresponsive to commands.
After about 20 minutes, officers approached cautiously, not
knowing if the man was still armed and lying in wait. Another
canine partner, Rollo, was dispatched to drag him out of the
bushes. Officers then determined the man was dead. He had a
gun holster around his torso. There were eight bullet wounds,
several of which were the obvious cause of rapid death. Blood
tests showed that he had a high level of methamphetamine in
After struggling with police near the shooting, defendant was
apprehended, handcuffed, and placed in a police vehicle. When
questioned at the scene, she identified the man she was with
as Lucas Webb, her boyfriend. She claimed to have been the
driver of the Camry, in which they were the only two
occupants. She asserted that her boyfriend did not have a gun
in his possession. Shortly afterward, she admitted there had
been two other passengers in the car, whom she had told to
get out of the car. She later identified photographs of the
two other passengers. Defendant's hands tested positive
for gunshot residue.
That afternoon, the police conducted a lengthy formal
interview of defendant. They initially withheld the
information that Webb was dead. She told them the decedent
had previously killed a police officer; he had an outstanding
warrant and never complied with police efforts to initiate a
contact (an attitude that she shared).[FN 2] Ordinarily he
never let her drive, but she initially claimed that she had
been driving the car (bragging about her repeated success in
shaking police pursuits in Chico) until after they drove
through the schoolyard. Ultimately, she admitted that Webb
had been driving during the entire chase, which she had
concealed to keep him from going to prison. Police then told
her that Webb had died.
[FN 2: Decedent Webb's ex-wife confirmed defendant's
characterization of him. After he had served a prison term,
he was adamant that he would do anything to avoid going back
to prison, including killing a police officer if necessary.
He frequently voiced an intense hatred of police, and would
always evade police contacts.]
Circumstances of Defendant's Personal Gun Use and
Abetting the Shooting
During her interview, defendant first claimed that she had
brought the gun with them on the trip. However, after
learning he had died, she said it was Webb's, which he
carried in a holster. When the police commented on the
stippling on her hand, she admitted that she had accidentally
fired it during the course of the chase; she had taken it
from Webb when he was grabbing for it to prevent him from
using it. She then turned around to direct their protesting
passengers to quiet down, and was “[wa]ving it around
feloniously, ” though not aiming it at anyone in
particular. When they had temporarily shaken off the pursuit,
she told the passengers to take off their seatbelts and get
out of the car when they stopped momentarily. In the process
of abandoning the car, she accidentally shot out the rear
passenger-side window. Webb had taken the gun from her at
this point and stuck it back in his holster.
Defendant made several calls from jail that night. In the
first, she mentioned that she had stayed with Webb when they
released their passengers in order to help him. She had taken
the gun away from Webb to keep him from using it, and fired
it accidentally while abandoning the car (at which point he
reclaimed it). During the second call, she repeated this
account; she also noted that when they saw the police car
after abandoning the Camry, she had told him,
“You['re] always talkin' about, ... you got to
get that motherfucker out Luc[a]s or throw it to me and I
will.” In the third call, she again mentioned taking
the gun from him to keep him from using it, until he
reclaimed it after she accidentally shot out the window. She
also elaborated on the statement in her second call:
“[I] told him ‘cause he's always sayin,'
‘he's g[o]nna shoot him in the face,' right.
When ... the cops walked up on us ... I looked at him and
said, ‘Are you goin' to pull the motherfucker? If
you don't want to pull the motherfucker, you better throw
it back to me 'cause I'll handle that shit.' And
that's the last thing I said to him just before he got
shot dead.” She added, “I coulda told him,
‘Daddy, let's just fuckin' [be] in jail,
it's just jail, let's fucking just ... lay down,
let's give it up.' He woulda done it, ” and
“[h]e'd still be [alive].” A couple of days
later, she called one of her friends back. In describing
their last contact before Webb ran off, defendant said she
should have told him to surrender; instead, “he looked
at me and he dropped his cell phone. And I told him,
‘Go. You know what to do. If you don't do it throw
it back to me and I'll get rid of 'em.' And he
turned and ... [t]hat's the last thing I said to
him.” The officer who had pursued them on foot and the
canine officer did not recall hearing any conversation
between Webb and defendant, though this did not preclude any
conversation having taken place.
The police interviewed one of the Camry passengers. He was a
close friend of Webb. When on methamphetamine, Webb became
out of control and bullheaded. The passenger also knew that
Webb would do anything to avoid going to jail, and did not
have any respect for the police. The passenger told his
interviewers that just before entering the schoolyard,
defendant took off her seatbelt and turned around, pointing
the gun at him and telling him to quiet down. She looked as
if she were pointing the gun toward the rear window in the
direction of their pursuers, telling the two passengers to
duck down. However, she never fired the gun before he bailed
out of the car. He thought she was encouraging Webb not to
stop for anything. In a second interview, he made the same
assertions, noting that he was not worried about her actually
shooting him but of the possibility of a shootout. She may
even have stuck the gun out the side window. He also thought
she might have said something about shooting at the police.
He expressed his concern to the police about being labeled a
At trial, however, the passenger testified he did not notice
any gun until after they drove through the schoolyard, when
he saw it in Webb's lap. Defendant took it at some point.
After the schoolyard, she turned around in her seat, but did
not point the gun at him, or toward the rear window, or stick
it out of the window, since police were not behind them any
longer. She never announced an intention to shoot at the
police. He asserted it was Webb, and not defendant, who said
they were not going to stop during the pursuit.
The passenger conceded that he had testified the opposite at
the preliminary hearing-that it was defendant who said they
were not going to be taken or stopped. He also conceded
testifying that she pointed the gun at him, but that was
inaccurate. He simply meant the gun was in her hand when she
turned to face him. He acknowledged telling his interviewers
and testifying that defendant stated she intended to shoot at
the police, but that was an unintentional inaccuracy.
People v. McCulley, No. C075333, 2015 WL 1865705, at
*1-4 (Cal.Ct.App. Apr. 21, 2015).
Conviction and Sentence
plead not guilty to the charges against her and was tried in
the Sacramento County Superior Court in Case No. 12F03538.
See Clerk's Transcript (“CT”) Vol. 1
at 2. On September 11, 2013, the jury returned a guilty
verdict on the following counts: attempted premeditated
murder of a police officer engaged in the performance of his
duties and while a principal (Petitioner) was armed with a
firearm, in violation of California Penal Code §
664/187, § 664(a), § 664(e)(1), and §
12022(a)(1) (Count 1); evading a peace officer in a motor
vehicle while personally using a firearm, in violation of
§ 2800.2 and § 12022.5(a)(1) (Count 2); being a
felon in possession of a firearm, in violation of §
29800(a)(1) (Count 3); and unlawfully concealing a stolen
vehicle, in violation of § 496d(a) (Count 4).
See CT Vol. 5 at 1364-68.
November 22, 2013, Petitioner was sentenced to an
indeterminate term of 15-years-to-life consecutive to a
16-year determinate sentence. CT Vol. 5 at 1478-81. She was
also ordered to pay restitution, including $55, 191.41 to the
City of Sacramento for injury to the police canine.
See Reporter's Supp. Transcript
(“RST”) Vol. 1.
sought review in the California Court of Appeal Third
Appellate District, which affirmed the judgment on April 21,
2015, with directions to the trial court to issue an amended
abstract of judgment due to clerical error. Lodged Doc.
(“LD”) 4. She then sought review in the
California Supreme Court, which summarily denied review on
July 15, 2015. LD 8.
filed this petition for writ of habeas corpus pursuant to 42
U.S.C. § 2254 on September 19, 2016, and Respondent
filed an Answer on January 5, 2017. (ECF Nos. 1, 13.)
Petitioner filed a traverse on May 15, 2017. (ECF No. 21.)
The petition is fully briefed and ready for disposition.
OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS
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).
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;
(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.
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. Greene v. Fisher, 565 U.S. 34,
37 (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,
569 U.S. 58, 64 (2013) (citing Parker v. Matthews,
567 U.S. 37 (2012)). Nor may it be used to “determine
whether a particular rule of law is so widely accepted among
the Federal Circuits that it would, if presented to th[e]
[Supreme] Court, be accepted as correct.” Id.
at 1451. 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, 76-77 (2006).
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) (quoting Williams, 529 U.S.
at 405-06). “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 th[e] [Supreme]
Court's decisions, but unreasonably applies that
principle to the facts of the prisoner's
case.'” Lockyer v. Andrade, 538 U.S. 63,
75 (2003) (quoting Williams, 529 U.S. at 413);
Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004).
“[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.”
Williams, 529 U.S. at 411; see also Schriro v.
Landrigan, 550 U.S. 465, 473 (2007); Andrade,
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.” (Internal citations and quotation marks
omitted.)). “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.
are two ways a petitioner may satisfy subsection (d)(2).
Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir.
2012). He may show the state court's findings of fact
“were not supported by substantial evidence in the
state court record” or he may “challenge the
fact-finding process itself on the ground it was deficient in
some material way.” Id. (citing Taylor v.
Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004)); see
also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir.
2014) (If a state court makes factual findings without an
opportunity for the petitioner to present evidence, the
fact-finding process may be deficient and the state court
opinion may not be entitled to deference.). Under the
“substantial evidence” test, the court asks
whether “an appellate panel, applying the normal
standards of appellate review, ” could reasonably
conclude that the finding is supported by the record.
Hibbler, 693 F.3d at 1146 (9th Cir. 2012).
second test, whether the state court's fact-finding
process is insufficient, requires the federal court to
“be satisfied that any appellate court to whom the
defect [in the state court's fact-finding process] is
pointed out would be unreasonable in holding that the state
court's fact-finding process was adequate.”
Hibbler, 693 F.3d at 1146-47 (quoting Lambert v.
Blodgett, 393 F.3d 943, 972 (9th Cir. 2004)). The state
court's failure to hold an evidentiary hearing does not
automatically render its fact-finding process unreasonable.
Id. at 1147. Further, a state court may make factual
findings without an evidentiary hearing if “the record
conclusively establishes a fact or where petitioner's
factual allegations are entirely without credibility.”
Perez v. Rosario, 459 F.3d 943, 951 (9th Cir. 2006)
(citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th
petitioner overcomes one of the hurdles posed by section
2254(d), this court reviews the merits of the claim de novo.
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.”). For the claims upon
which petitioner seeks to present evidence, petitioner must
meet the standards of 28 U.S.C. § 2254(e)(2) by showing
that he has not “failed to develop the factual basis of
[the] claim in State court proceedings” and by meeting
the federal case law standards for the presentation of
evidence in a federal habeas proceeding. See Cullen v.
Pinholster, 563 U.S. 170, 186 (2011).
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). “[I]f 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 ‘fully ascertain the
reasoning of the last decision.'” Edwards v.
Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc)
(quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th
Cir. 2005)). “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 showing “there is reason to think some
other explanation for the state court's decision is more
likely.” Id. at 99-100 (citing Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a
state court decision on a petitioner's claims rejects
some claims but does not expressly address a federal claim, a
federal habeas court must presume, subject to rebuttal, that
the federal claim was adjudicated on the merits. Johnson
v. Williams, 568 U.S. 289, 293 (2013). When it ...