McCulley v. Adams

          FINDINGS & RECOMMENDATIONS

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         BACKGROUND

         I. Factual Background

         The California Court of Appeal for the Third Appellate District provided the following factual summary of Petitioner's underlying case:

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 defendant.

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 partner.

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 his blood.

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 snitch.

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).

         II. Procedural Background

         a. Conviction and Sentence

         Petitioner 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.

         On 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.

         b. Direct Review

         Petitioner 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.

         c. Collateral Review

         Petitioner 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.

         STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS

         An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

         Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. 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).

         A state court decision is “contrary to” clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634');">538 U.S. 634, 640 (2003) (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.

         There 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).

         The 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 Cir. 2003)).

         If a 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).

         The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[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 ...