“We have repeatedly held that a state court’s interpretation 21 of state law, including one announced on direct appeal of the challenged conviction, binds 22 a federal court sitting in habeas corpus.”
How later courts described this case
- “We have repeatedly held that a state court’s interpretation 21 of state law, including one announced on direct appeal of the challenged conviction, binds 22 a federal court sitting in habeas corpus.”
- holding that a criminal defendant has a federal constitutional right to proceed without counsel when he voluntarily and intelligently 28 1 granted to allow him to develop his ineffective assistance of counsel claims. (ECF No. 19- 2 19.
- applying Brecht harmless error test to due process claim 2 based on introduction of suggestive pretrial identification
- finding that “powerfully incriminating extrajudicial 12 statements of a codefendant” with “inevitably suspect” credibility were devasting to the 13 defense
Written by the judges who cited it.
The opinion
1
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 EMANUAL JAMES PEAVY, Case No.: 19cv0743-MMA (BGS)
12 Petitioner,
ORDER DENYING PETITION FOR A
13 v.
WRIT OF HABEAS CORPUS AND
14 RAYMOND MADDEN, Warden, DENYING CERTIFICATE OF
Respondent. APPEALABILITY
15
16
17 Emanual James Peavy (“Petitioner”) is a California state prisoner proceeding pro se
18 and in forma pauperis with a Second Amended Petition for a Writ of Habeas Corpus
19 pursuant to 28 U.S.C. § 2254. (ECF No. 13.) Petitioner was convicted in San Diego
20 County Superior Court of one count each of first degree murder and attempted murder,
21 which a jury found were committed with the personal use of a firearm and for the benefit
22 of, at the direction of, or in association with a criminal street gang, and was sentenced to
23 50 years to life plus 39 years in state prison. (Id. at 21-22.) He claims here that his federal
24 constitutional right to due process was violated by the admission of evidence which was
25 more prejudicial than probative and rendered his trial fundamentally unfair (claims one and
26 three), and his federal constitutional right to self-representation was violated by the denial
27 of his post-trial motion to represent himself as untimely without a proper inquiry or
28 sufficient factual findings (claim two). (Id. at 13-17.)
1 Warden Raymond Madden (“Respondent”) has filed an Answer and a Notice of
2 Lodgment. (ECF Nos. 18-19.) Respondent contends federal habeas relief is unavailable
3 because the state court adjudication of claims one and two is neither contrary to, nor an
4 unreasonable application of, clearly established federal law; any error regarding claim two
5 is harmless; and claim three should be denied as plainly meritless notwithstanding a failure
6 to exhaust state court remedies. (ECF No. 18-1 at 3-8.)
7 Petitioner has filed a Traverse. (ECF No. 23.) He replies that the denial of claim
8 one by the state court, on the basis that the introduction of the challenged evidence did not
9 violate federal due process because it was material and not prejudicial, is contrary to or an
10 unreasonable application of federal evidentiary rules and laws which require exclusion of
11 prejudicial evidence which result in a fundamentally unfair trial. (Id. at 9-16.) He argues
12 the state court adjudication of claim two, on the basis that his right to self-representation
13 was not violated by a summary denial of his motion to represent himself as untimely, is
14 contrary to or an unreasonable application of federal law requiring an inquiry or findings
15 whether the request would have disrupted the proceedings or if a continuance should have
16 been granted to allow him to develop his ineffective assistance of counsel claims. (Id. at
17 3-4, 17-18.) Petitioner filed a notice to withdraw claim three as unexhausted before the
18 Answer was filed, and it is not addressed in the Traverse. (ECF No. 17.)
19 For the following reasons, the Court finds federal habeas relief is unavailable
20 because the state court adjudication of claims one and two is neither contrary to, nor an
21 unreasonable application of, clearly established federal law, nor based on an unreasonable
22 determination of the facts, and claim three, to the extent it is before the Court, fails on its
23 merits. The Second Amended Petition is therefore denied.1
24
25
26
1 Although this case was referred to United States Magistrate Judge Bernard G. Skomal
pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and
27 Recommendation nor oral argument is necessary for the disposition of this matter. See
28 S.D. Cal. Civ.L.R. 72.1(d).
1 I. PROCEDURAL BACKGROUND
2 On April 30, 2015, Petitioner and co-defendant Lamont Holman were charged with
3 the murder of Gregory Benton and the attempted murder of J.R. (ECF No. 19-1 at 9-11.)
4 It was alleged that Petitioner personally used a firearm during both offenses and committed
5 them for the benefit of, at the direction of, or in association with a criminal street gang.
6 (Id.) Holman pleaded guilty. (ECF No. 19-5 at 6.)
7 On August 8, 2016, a jury found Petitioner guilty on both counts and returned true
8 findings on both allegations. (ECF No. 19-1 at 230-33.) On September 6, 2016, the day
9 set for sentencing, the trial judge held a Marsden2 hearing at Petitioner’s request, which
10 Petitioner argued was a Faretta3 motion arising from claims of ineffective assistance of
11 appointed trial counsel which he needed time to investigate. (ECF No. 19-18 at 3-16.) The
12 motion was denied as untimely, and he was immediately sentenced to 50 years to life plus
13 39 years in state prison. (ECF No. 19-1 at 236-38.)
14 Petitioner appealed, alleging, as he does in claims one and two here, that his federal
15 constitutional rights were violated by: (1) the introduction of evidence of his involvement
16 in a similar shooting (resulting in an attempted murder conviction) which took place three
17 days after the shooting for which he was on trial, because, notwithstanding a jury
18 instruction the evidence was introduced for the limited purpose of showing identity, intent
19 and motive, it was cumulative to trial evidence on those issues and amounted to a piling on
20 of unnecessarily prejudicial evidence; and (2) the denial of his unequivocal motion for self-
21 representation as untimely without an inquiry or findings concerning how granting the
22 request would have disrupted the proceedings or whether a continuance should have been
23
24
2 People v. Marsden, 2 Cal.3d 118, 123 (1970) (holding that defendants represented by
25 appointed counsel may discharge their attorneys and substitute new counsel if their right
26 to counsel would be substantially impaired by continuing with the original attorney).
27 3 Faretta v. California, 422 U.S. 806, 807 (1975) (holding that a criminal defendant has a
federal constitutional right to proceed without counsel when he voluntarily and intelligently
28
1 granted to allow him to develop his ineffective assistance of counsel claims. (ECF No. 19-
2 19.) On January 30, 2018, the appellate court denied the claims on their merits in a written
3 opinion and affirmed in all respects. (ECF No. 19-21.)
4 Petitioner presented the same claims in a petition for review in the state supreme
5 court. (ECF No. 19-22.) On April 11, 2019, the state supreme court denied the petition.
6 (ECF No. 19-23.)
7 II. TRIAL PROCEEDINGS
8 The following statement of facts is taken from the appellate court opinion affirming
9 Petitioner’s conviction on direct review. This Court gives deference to state court findings
10 of fact and presumes them to be correct; Petitioner may rebut the presumption of
11 correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Sumner
12 v. Mata, 449 U.S. 539, 545-47 (1981).
13 Prosecution Case
14
J.R. testified that on April 12, 2014, at about 10:40 p.m. she was driving
15 home with her cousin, Gregory Benton. She parked her vehicle and she and
her cousin walked towards her family’s house. She saw a black car
16
approaching them. Suddenly, a man hopped out and, referring to a street
17 gang’s name, asked them, “How’s that Brim life?” Immediately afterwards
he shot at them. J.R. ran, and the only impression she got of the shooter was
18
that he was African-American and wore all black clothing. When J.R.
19 returned to the crime scene, she saw that Benton had been shot.
20
Benton died that night. A medical examiner testified his manner of
21 death was homicide caused by multiple gunshot wounds.
22
April 15 Shooting
23
At trial, B.T. testified regarding the April 15 shooting that at around
24
2:00 a.m. on that day, he and a friend were standing out on the street. A man
25 drove up near them, got out of his car and, referring to a street gang, said:
“This is Crip; this is Crip,” and shot B.T. in the foot. B.T. ran but then
26
stopped. He saw the car turn around and head toward him in the wrong
27 direction of a one-way street. Shortly afterwards, B.T.’s friend picked him up
in a vehicle and while they were going to the hospital, police stopped them.
28
1 The jury viewed security camera video of the incident in which the
shooter was seen firing a gun and running away. Because of a birth defect,
2
Peavy has no left hand. A homicide detective testified that after watching the
3 video several times, he did not see the shooter’s left hand.
4
Police Investigation
5
On May 10, 2014, police arrested Peavy as he was leaving a gathering
6
of the “5-9 Brim” street gang. At the time, he was driving the same vehicle
7 used in the April 15 shooting. That vehicle was rented by Peavy’s girlfriend,
who sometimes loaned it to Peavy. Police searched Peavy’s apartment and
8
found a digital scale with some white residue on it, a nine-millimeter Taurus
9 handgun, a .22-caliber bullet, a sweatshirt worn by the shooter in the April 15
incident, a black ski mask, a ballistic vest, and a pair of gloves that Peavy was
10
seen wearing in other photos the police found on his phone.
11
A criminalist compared the bullets found in the firearm located in
12
Peavy’s room to the spent cartridges found at four different crime scenes,
13 including that of the Benton shooting, and concluded the cartridges had
characteristics that were consistent with them being from Peavy’s firearm.
14
15 The probation report lists Peavy’s race as African-American. DNA
extracted from the shell casings recovered from the Benton crime scene
16
matched Peavy’s DNA. DNA extracted from the sweatshirt found in Peavy’s
17 room matched that of three people, including Peavy as a possible major
contributor. That sweatshirt also tested positive for gunshot residue.
18
19 A detective testified as a gang expert that Peavy was a member of a
subset of the 5-9 Brim criminal street gang. Based on a hypothetical mirroring
20
the facts of Benton’s shooting, the expert opined that the crime would have
21 been carried out in association with and for the benefit of the street gang,
which needed to recover its respect on the streets. The parties stipulated that
22
the 5-9 Brim is a criminal street gang as defined in the Penal Code.
23
Defense Case
24
25 A detective testified as a gang expert that Victor Ware, a 5-9 Brim gang
member, was convicted of shooting a victim in West Coast Crips’ territory in
26
March 2014. Shell casings recovered from that crime scene were similar to
27 the casings found in the present case; specifically, they were nontoxic bullets
produced by the same manufacturer. Ware and Peavy were friends.
28
1 Peavy’s girlfriend testified that in April 2014, she sometimes loaned
her rental car to Peavy and other friends and family members who had gang
2
associations.
3
Reginald Washington, a former gang member, testified as a gang expert
4
that gang members sometimes shared guns and ammunitions. They also kept
5 their weapons in different hiding places.
6 (ECF No. 19-21 at 3-5.)
7 III. CLAIMS IN THE SECOND AMENDED PETITION
8 (1) The introduction of evidence of the April 15 shooting for which Petitioner had
9 already been convicted in a separate proceeding violated his federal right to due process
10 because, notwithstanding the jury instruction that it was introduced for the limited purpose
11 of showing identity, intent and motive, it was cumulative to trial evidence on those issues
12 and amounted to a piling on of unnecessarily prejudicial evidence which rendered his trial
13 fundamentally unfair. (ECF No. 13 at 40-53.)
14 (2) The denial of Petitioner’s unequivocal post-trial request for self-representation
15 as untimely without an inquiry or findings as to whether the proceedings would have been
16 disrupted or to grant a continuance to develop his ineffective assistance of counsel claims
17 violated his federal constitutional right to self-representation. (Id. at 54-62.)
18 (3) The introduction of an adopted admission contained in a partially unintelligible
19 recording of a jail conversation where Petitioner tells his co-defendant their DNA was
20 found on bullet casings recovered at the crime scene and failed to respond when his co-
21 defendant said they had messed up, was more prejudicial than probative resulting in a
22 fundamentally unfair trial. (Id. at 63-65.)
23 IV. DISCUSSION
24 A. Standard of Review
25 Title 28, United States Code, § 2254, as amended by the Antiterrorism and Effective
26 Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, provides,
27 with respect to a claim adjudicated on the merits in state court, that in order to obtain federal
28 habeas relief a petitioner must demonstrate that the state court adjudication of the claim:
1 “(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
2 clearly established Federal law, as determined by the Supreme Court of the United States;
3 or (2) resulted in a decision that was based on an unreasonable determination of the facts
4 in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
5 Even if § 2254(d) is satisfied, a petitioner must show a federal constitutional violation
6 occurred to obtain habeas relief. Fry v. Pliler, 551 U.S. 112, 119-22 (2007); Frantz v.
7 Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc).
8 A state court’s decision may be “contrary to” clearly established Supreme Court
9 precedent (1) “if the state court applies a rule that contradicts the governing law set forth
10 in [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially
11 indistinguishable from a decision of [the] Court and nevertheless arrives at a result different
12 from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state
13 court decision may involve an “unreasonable application” of clearly established federal
14 law “if the state court identifies the correct governing legal rule from this Court’s cases but
15 unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407. Relief
16 under the “unreasonable application” clause of § 2254(d) is available “if, and only if, it is
17 so obvious that a clearly established rule applies to a given set of facts that there could be
18 no ‘fairminded disagreement’ on the question.” White v. Woodall, 572 U.S. 415, 427
19 (2014), quoting Harrington v. Richter, 562 U.S. 86, 103 (2011). To satisfy § 2254(d)(2),
20 the factual findings upon which a state court’s adjudication rests must be objectively
21 unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
22 When a federal habeas court addresses a claim which has not been adjudicated on
23 the merits in state court, pre-AEDPA de novo review is required. Pirtle v. Morgan, 313
24 F.3d 1160, 1167-68 (9th Cir. 2002). Under such a review, “state court judgments of
25 conviction and sentence carry a presumption of finality and legality and may be set aside
26 only when a state prisoner carries his burden of proving that [his] detention violates the
27 fundamental liberties of the person, safeguarded against state action by the Federal
28 Constitution.” Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc).
1 B. Claim One
2 Petitioner alleges in claim one that his federal due process rights were violated by
3 the introduction of evidence of the April 15 shooting which took place three days after the
4 April 12 shooting for which he was on trial, because it was more prejudicial than probative.
5 (ECF No. 13 at 40-53.) He argues, as he did in state court, that the jury heard evidence he
6 committed the April 15 shooting, and although they were instructed the evidence was
7 admitted as probative of and limited to the issues of identity, intent and motive, it was
8 entirely cumulative to trial evidence on those issues and therefore amounted to a piling on
9 of unnecessarily prejudicial evidence. (Id.)
10 Respondent answers that the denial of this claim by the state appellate court cannot
11 be contrary to or an unreasonable application of clearly established federal law within the
12 meaning of 28 U.S.C. § 2254(d)(1) because there is no clearly established federal law
13 supporting a claim that the introduction of propensity evidence in a state criminal trial can
14 violate federal due process. (ECF No. 18-1 at 4.) Petitioner replies that the state court
15 adjudication, on the basis that the evidence did not satisfy the definition of prejudice under
16 state law, which includes “evidence which uniquely tends to evoke an emotional bias
17 against the defendant as an individual and which has very little effect on the issues,” is
18 contrary to or an unreasonable application of federal evidentiary rules precluding the
19 introduction of evidence which is more prejudicial that probative, and federal law which
20 provides that the introduction of overly prejudicial evidence can violate federal due process
21 where it renders a state criminal trial fundamentally unfair. (ECF No. 23 at 9-16.)
22 Petitioner presented this claim to the state supreme court in his petition for review.
23 (ECF No. 19-22), which was denied with an order which stated: “The petition for review
24 is denied.” (ECF No. 19-33.) The same claim was presented to the state appellate court
25 on direct appeal (ECF No. 19-19) and denied in a written opinion. (ECF No. 19-21.)
26 “Where there has been one reasoned state judgment rejecting a federal claim, later
27 unexplained orders upholding that judgment or rejecting the same claim rest upon the same
28 ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991). The Court will look through
1 the silent denial by the state supreme court to the appellate court opinion on direct appeal,
2 which stated:
3 Peavy contends the court erroneously admitted evidence regarding the
April 15 shooting and such evidence was substantially more prejudicial than
4
probative; thus, the court violated his due process rights under the federal
5 Constitution.
6
A. Background
7
The People moved in limine to admit into evidence testimony regarding
8
the April 15 shooting, arguing it was relevant to prove intent, motive and
9 identity. Peavy opposed the motion, arguing the evidence was not admissible
to show a common design, plan or scheme, knowledge or identity, and it was
10
excludable under Evidence Code section 352. In granting the motion, Judge
11 Rogers ruled: “The People’s theory is that Mr. Peavy committed the crimes
that he is charged with on April 12 and then three days later that he did this
12
other shooting for which he has been found guilty at a jury trial. The other
13 shooting has a number of similarities. . . . [¶] A jury has found beyond a
reasonable doubt that Mr. Peavy committed the April 15 incident. . . . (¶)
14
That is one of the factors, I think, that goes into the probative value side of the
15 equation. That’s common sense. . . . [¶] Next, I think that [the prosecutor]
has proffered intent and motive for committing the crime. The motive seems
16
inextricably tied in with the gang culture. [The prosecutor] also suggests
17 identity. And, frankly, I had thought common plan or scheme, even though I
realize [the prosecutor] didn’t really brief that. [Defense counsel] briefed it
18
in opposition.”
19
The court concluded that under Evidence Code section 352, the
20
probative value of the April 15 shooting was “exceptionally high. And I think
21 that it goes to, frankly, the intent with which the act on [April] 12th, our
charged counts, were committed. I think it is exceptionally strong in terms of
22
the gang motive for committing these crimes. And, frankly, I am mindful that
23 just under [Evidence Code section 1101, subdivision (b)], the degree of
similarity required for identity is the highest degree of similarity. But I think
24
this passes muster for identity as well.”
25
Defense counsel again opposed the admission of evidence about the
26
April 15 shooting before the trial judge, Judge Fraser, who rejected those
27 arguments, ruling: “[H]ere, we have similar acts. And the idea is you have
similar acts with similar intent. And obviously, murder has an intent
28
1 especially in a gang context, where you can use the gang membership at times
to show a motive for a particular murder or a motive for a particular shooting.”
2
Judge Fraser continued: “[W]e have more than enough to show plan. We have
3 more than enough to show intent. And we have more than enough to show
motive. [¶] The next part of this obviously is - so we have the materiality,
4
first prong. Clearly, it’s relevant. And it’s something that would help the
5 jurors do their job.” Judge Fraser concluded that under Evidence Code section
352, evidence of the April 15 shooting was substantially probative and not
6
prejudicial to Peavy. He further concluded that the jury would not be misled
7 because the charged crimes and the April 15 shooting were separate incidents.
8
At trial, just before B.T. testified about the April 15 shooting, the court
9 gave the jury the following limiting instruction: “The People will present
evidence that the defendant committed another offense that was not charged
10
in this case. You may consider this evidence only if you thought [it] proved
11 by a preponderance of the evidence that the defendant in fact committed the
uncharged offense. [¶] Proof by preponderance of the evidence is a different
12
burden of proof than proof beyond a reasonable doubt. A fact is proved by a
13 preponderance of the evidence if you conclude that it is more likely than not
that the fact is true. If the People have not met this burden, you must disregard
14
this evidence entirely. [¶] If you decide the defendant committed the
15 uncharged offense, you may but are not required to consider that evidence for
the limited purpose of deciding whether or not, (a), identity, or the defendant
16
was the person who committed the offense alleged in this case or, intent, the
17 defendant acted with the intent to commit murder in this case or, motive,
defendant had a motive to commit the offense alleged in this case or, common
18
plan, the defendant had a plan or scheme to commit the offense alleged in this
19 offense. [¶] In evaluating this evidence, consider the similarity or lack of
similarity between the uncharged offense and the charged offense. Do not
20
consider this evidence for any other purpose. Do not conclude from this
21 evidence the defendant has a bad character or is predisposed to commit
crimes. [¶] If you conclude the defendant committed the uncharged offense,
22
that conclusion is only one factor to consider along with all the other evidence.
23 It is not sufficient by itself to prove the defendant is guilty of the crime
charged in this case. The People must prove each charge - each charge or
24
allegation beyond a reasonable doubt.”
25
During final instructions, the court instructed the jury with CALCRIM
26
No. 303: “During the trial, certain evidence was admitted for a limited
27 purpose. You may consider that evidence only for that purpose and for no
other.”
28
1 B. Applicable Law
2
Evidence Code section 1101, subdivision (a) “prohibits admission of
3 evidence of a person’s character, including evidence of character in the form
of specific instances of uncharged misconduct, to prove the conduct of that
4
person on a specified occasion.” (People v. Ewoldt (1994) 7 Cal.4th 380, 393
5 (Ewoldt).) Thus, evidence of other crimes or bad acts is inadmissible when it
is offered to show that a defendant had the criminal disposition or propensity
6
to commit the crime charged. (Evid. Code, § 1101, subd. (a).) Evidence Code
7 section 1101, subdivision (b) “clarifies, however, that this rule does not
prohibit admission of evidence of uncharged misconduct when such evidence
8
is relevant to establish some fact other than the person’s character or
9 disposition.” (Ewoldt, supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically,
Evidence Code section 1101, subdivision (b) provides that nothing in that
10
section “prohibits the admission of evidence that a person committed a crime,
11 civil wrong, or other act when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake
12
or accident . . .) other than his or her disposition to commit such an act.”
13
The admissibility of evidence under Evidence Code section 1101,
14
subdivision (b) depends on the degree of similarity between the uncharged act
15 and the charged offense. (People v Zepeda (2001) 87 Cal.App.4th 1183, 1210
(Zepeda), citing Ewoldt, supra, 7 Cal.4th at p. 402.) The California Supreme
16
Court has explained that for evidence of uncharged acts to be admissible under
17 Evidence Code section 1101, subdivision (b) to prove such facts as motive,
intent, identity, or common design or plan, the charged offenses and
18
uncharged acts must be “sufficiently similar to support a rational inference”
19 of these material facts. (People v. Kipp (1998) 18 Cal.4th 349, 369.) “The
least degree of similarity (between the uncharged act and the charged offense)
20
is required in order to prove intent.” (Ewoldt, supra, 7 Cal.4th at p. 402.) To
21 be admissible to prove intent, the uncharged misconduct need only be
“sufficiently similar (to the charged offense) to support the inference that the
22
defendant ‘“probably harbor(ed) the same (or similar) intent in each
23 instance.”’” (Ibid.; see People v. Memro (1995) 11 Cal.4th 786, 864-865
(evidence of defendant’s uncharged conduct of possessing sexually explicit
24
photographs of young males admissible as probative to show intent to sexually
25 molest young boy).)
26
If the trial court determines that uncharged misconduct is admissible
27 under Evidence Code section 1101, subdivision (b), it must then determine
whether the probative value of the evidence is “‘substantially outweighed by
28
1 undue prejudice, of confusing the issues, or of misleading the jury.’” (Ewoldt,
supra, 7 Cal.4th at p. 404; Evid. Code, § 352.) “The principal factor affecting
2
the probative value of an uncharged act is its similarity to the charged offense.
3 Other factors affecting the probative value include the extent to which the
source of the evidence is independent of the charged offense, and the amount
4
of time between the uncharged acts and the charged offense. The factors
5 affecting the prejudicial effect of uncharged acts include whether the
uncharged acts resulted in criminal convictions and whether the evidence of
6
uncharged acts is stronger or more inflammatory than the evidence of the
7 charged offenses.” (Zepeda, supra, 87 Cal.App.4th at p. 1211.) “The
probative value of the evidence is enhanced if it emanates from a source
8
independent of evidence of the charged offense.” (People v. Tran (2011) 51
9 Cal.4th 1040, 1047.) “On the other hand, the prejudicial effect of the evidence
is increased if the uncharged acts did not result in a criminal conviction. This
10
is because the jury might be inclined to punish the defendant for the uncharged
11 acts regardless of whether it considers the defendant guilty of the charged
offense and because the absence of a conviction increases the likelihood of
12
confusing the issues, in that the jury will have to determine whether the
13 uncharged acts occurred.” (Ibid.) “The potential for prejudice is decreased
. . . when testimony describing the defendant’s uncharged acts is no stronger
14
or more inflammatory than the testimony concerning the charged offense.”
15 (Ibid.)
16
“The prejudice which exclusion of evidence under Evidence Code
17 section 352 is designed to avoid is not the prejudice or damage to a defense
that naturally flows from relevant, highly probative evidence. ‘(A)ll evidence
18
which tends to prove guilt is prejudicial or damaging to the defendant’s case.
19 The stronger the evidence, the more it is “prejudicial.” The “prejudice”
referred to in Evidence Code section 352 applies to evidence which uniquely
20
tends to evoke an emotional bias against the defendant as an individual and
21 which has very little effect on the issues. In applying (Evidence Code) section
352, “prejudicial” is not synonymous with “damaging.”’” (People v. Karis
22
(1988) 46 Cal.3d 612, 638.)
23
We review the trial court’s rulings under Evidence Code sections 1101
24
and 352 for an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610,
25 637.) We will not disturb the trial court’s exercise of discretion except upon
a showing that it “exercised its discretion in an arbitrary, capricious, or
26
patently absurd manner that resulted in a manifest miscarriage of justice.”
27 (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
28
1 C. Analysis
2
We conclude the two judges who ruled on this issue did not abuse their
3 discretion or violate Peavy’s federal constitutional due process right to a fair
trial by admitting under Evidence Code section 1101, subdivision (b) the
4
evidence that Peavy committed the April 15 shooting. That evidence was
5 material and highly probative on the issues of his intent and motive with
respect both to the substantive charges of murder and attempted murder and
6
the gang and firearm allegations.
7
As already discussed, the least degree of similarity between an
8
uncharged act and a charged offense is required in order to prove intent, and
9 - to be admissible to prove intent - the uncharged misconduct need only be
sufficiently similar to the charged offense to support the inference that the
10
defendant probably harbored the same or similar intent in each instance.
11 (Ewoldt, supra, 7 Cal.4th at p. 402; see People v. Memro, supra, 11 Cal.4th at
pp. 864-865.) Although motive normally is not an element of any crime,
12
evidence of motive is always relevant because it “‘makes the crime
13 understandable and renders the inferences regarding defendant’s intent more
reasonable.’” (People v. Riccardi (2012) 54 Cal.4th 758, 815, abrogated on
14
another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
15
Here, during both the charged crimes and the April 15 shooting, Peavy
16
acted similarly: either late night or early morning, he was in a vehicle that
17 approached individuals on the street; he got out of the vehicle; he made a gang
reference to the individuals, and, unprovoked, fired shots at them. Here, as in
18
Zepeda, supra, 87 Cal.App.4th 1183, the evidence of Peavy’s other gang-
19 related assault with a firearm in response to minimal or nonexistent
confrontation, provocation, or challenge to Peavy’s gang was relevant and
20
admissible to prove his motive and intention to engage in hostile action against
21 a perceived rival gang member for no reason other than to benefit or promote
his gang and his own gang reputation, and to “‘follow the dictates of the gang
22
. . . to pursue gang policy.’” (Id. at p. 1211.) The similarity requirement is
23 met because the evidence showed the April 15 shooting incident occurred a
few days after the charged crimes, and it was gang-related and sufficiently
24
similar to the charged crimes to support the inference that Peavy probably
25 harbored the same or similar intent, and in each instance acted with a similar
motivation. (See Ewoldt, supra, 7 Cal.4th at p. 402.) [Footnote: To the extent
26
Peavy argues the court erred by admitting evidence of the April 15 shooting
27 on the question of identity, any error was harmless in light of the fact that the
evidence was plainly admissible on motive and intent.]
28
1 Under Evidence Code section 352, testimony regarding the April 15
shooting was substantially more probative than prejudicial. Peavy had been
2
convicted of the April 15 shooting in separate proceedings, and the source of
3 information regarding it was independent of the source regarding the charged
offense. The court concluded the testimony would not confuse the jury or
4
consume undue time. Moreover, we point out the court’s limiting instruction
5 further minimized any prejudice to Peavy. Also, contrary to Peavy’s
contention that the video made the evidence of the April 15 shooting more
6
prejudicial than the charged crime, we point out that the charged crime
7 evidence was more serious because it involved a death, while the uncharged
crime did not.
8
9 (ECF No. 19-21 at 5-13.)
10 Claims based on state evidentiary rulings are not cognizable on federal habeas unless
11 the admission or exclusion of the evidence was so prejudicial it rendered a trial
12 fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 70-73 (1991); Ortiz-Sandoval v.
13 Gomez, 81 F.3d 891, 897 (9th Cir. 1996). “Only if there are no permissible inferences the
14 jury may draw from the evidence can its admission violate due process. Even then, the
15 evidence must ‘be of such quality as necessarily prevents a fair trial.’” Jammal v. Van de
16 Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (quoting Kealohapauole v. Shimoda, 800 F.2d
17 1463, 1465 (9th Cir. 1986)).
18 The determination by the trial judge that the proffered testimony was relevant and
19 not prejudicial under state law is entitled to deference in this Court. See Bradshaw v.
20 Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s interpretation
21 of state law, including one announced on direct appeal of the challenged conviction, binds
22 a federal court sitting in habeas corpus.”) Nevertheless, “[t]he issue for us, always, is
23 whether the state proceedings satisfied due process; the presence or absence of a state law
24 violation is largely beside the point.” Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th
25 Cir. 1991) (“While adherence to state evidentiary rules suggests that the trial was
26 conducted in a procedurally fair manner, it is certainly possible to have a fair trial even
27 when state standards are violated; conversely, state procedural and evidentiary rules may
28 countenance processes that do not comport with fundamental fairness.”); see also
1 Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) (holding that a federal habeas
2 court must defer to the state court’s construction of state law unless it is “untenable or
3 amounts to a subterfuge to avoid federal review of a constitutional violation.”)
4 Respondent correctly argues Petitioner cannot rely on that foregoing federal law in
5 this instance. The Ninth Circuit has held that because the United States Supreme Court in
6 Estelle v. McGuire specifically reserved ruling on the issue regarding whether introduction
7 of propensity evidence in a state criminal trial could violate federal due process, and has
8 denied certiorari at least four times on the issue since, there is no “clearly established
9 federal law” applying to such a claim, thereby precluding habeas relief where 28 U.S.C.
10 § 2254(d)(1) applies. Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006). Although
11 the jury was instructed not to consider the April 15 shooting as evidence Petitioner “has a
12 bad character or is predisposed to commit crimes,” the state court adjudication of this claim
13 cannot be contrary to or an unreasonable application of clearly established federal law
14 regarding introduction of prejudicial evidence other than propensity evidence. See Holley
15 v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (recognizing that although the
16 admission of irrelevant and prejudicial evidence rendered the trial fundamentally unfair
17 under Ninth Circuit precedent, federal habeas relief was unavailable under 28 U.S.C.
18 § 2254(d)(1) because the Supreme Court “has not yet made a clear ruling that admission
19 of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient
20 to warrant issuance of the writ.”); Wright v. Van Patten, 552 U.S. 120, 125-26 (2008)
21 (holding that a state court could not have unreasonably applied federal law if no clear
22 Supreme Court precedent exists).
23 Although Petitioner cannot satisfy 28 U.S.C. § 2254(d)(1) because there is no clearly
24 established federal law applicable to claim one, he may still obtain federal habeas relief if
25 he can demonstrate the state court adjudication of his claim involved an unreasonable
26 determination of the facts within the meaning of 28 U.S.C. § 2254(d)(2). However, he has
27 not identified an objectively unreasonable factual determination by the state court with
28 respect to claim one. See Miller-El, 537 U.S. at 340 (holding that to satisfy § 2254(d)(2),
1 a petitioner must show that the factual findings upon which the state court’s adjudication
2 of his claims rest are objectively unreasonable).
3 Finally, even assuming Petitioner could satisfy or avoid the operation of 28 U.S.C.
4 § 2254(d)(1) or (2), he would still be required to demonstrate a federal constitutional
5 violation occurred by showing his trial was rendered fundamentally unfair by the
6 introduction of evidence of his involvement in the other shooting. Fry, 551 U.S. at 119-
7 22; Frantz, 533 F.3d at 735-36; McGuire, 502 U.S. at 70-73. To do so he would have to
8 show “there are no permissible inferences the jury may draw from the evidence.” Jammal,
9 926 F.2d at 920. “Even then, the evidence must be of such a quality as necessarily prevents
10 a fair trial,” which requires a showing that it is of the type the jury could use for an improper
11 purpose. Id. (quoting Kealohapauole, 800 F.2d at 1465).
12 As pointed out by the state appellate court, Petitioner was not prejudiced by the
13 introduction of the highly material and relevant evidence because it: (1) came from a source
14 independent of the evidence and witnesses at trial; (2) carried the assurance of accuracy
15 provided by a jury trial; (3) was introduced with repeated instructions to the jury to consider
16 it for the limited purpose of establishing identity, motive or intent; (4) involved a non-fatal
17 shooting of a victim with one shot in the foot, a less serious offense than the fatal shooting
18 Petitioner was on trial for where the victim was shot at least six times, including in the
19 stomach, back, thighs and shins (ECF No. 19-11 at 121-27); and (5) was highly relevant
20 due to the similarities between the two offenses, including that Petitioner approached
21 individuals in a vehicle late night or early morning, got out of his vehicle, made a gang
22 reference to the individuals, and, unprovoked, fired shots at them. The evidence introduced
23 at trial showed that: (1) Petitioner’s DNA was found on shell casings recovered at the April
24 12 murder scene (id. at 145-47); (2) shell casings recovered at the scene of both shootings
25 were fired from the gun found in Petitioner’s bedroom and matched an unspent shell casing
26 found in his bedroom (ECF No. 19-13 at 18-27); (3) the sweatshirt worn by the shooter on
27 April 15 as seen on videotape of the shooting was found in Petitioner’s bedroom containing
28 gunshot residue and his DNA (ECF No. 19-11 at 71-76, 157-58; ECF No. 19-12 at 126-
1 27); and (4) he was driving the vehicle used in the April 15 shooting when he was arrested,
2 which was rented by his girlfriend (ECF No. 19-12 at 168-69). The defense countered with
3 testimony from Petitioner’s girlfriend that she allowed other gang members to drive her
4 car, as well as expert testimony that similar shell casings were found at the scene of a gang
5 shooting a month earlier committed by Petitioner’s friend and fellow gang member and
6 that gang members share weapons and ammunition. (ECF No. 19-14 at 65-68, 83-89.)
7 Based on the numerous connections between the two shootings, the jury could have
8 drawn permissible inferences regarding identity, intent, and motive. That itself precludes
9 a finding of fundamental unfairness. Jammal, 926 F.2d at 920. Even if that hurdle could
10 be overcome, in light of the jury instruction that the prior offense be used for the limited
11 purpose of establishing identity, motive or intent, it was not the type of evidence the jury
12 could have used for an improper purpose. See McKinney v. Rees, 993 F.2d 1378, 1384 (9th
13 Cir. 1993) (noting that character evidence is the type of evidence from which no
14 permissible inference may be drawn); Dowling v. United States, 493 U.S. 342, 353-54
15 (1990) (holding that introduction of prior criminal acts did not violate federal due process
16 where trial court properly weighed probative value against prejudice, and reiterating that
17 the category of infractions which violate “fundamental unfairness” has been defined “very
18 narrowly.”)
19 Accordingly, federal habeas relief is denied as to claim one because the state court
20 adjudication is neither contrary to, nor involves an unreasonable application of clearly
21 established federal law and is not based on an unreasonable determination of the facts in
22 light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d)(1)-(2).
23 Even assuming Petitioner could satisfy those standards, federal habeas relief is unavailable
24 because the introduction of evidence of his prior shooting offense did not render his trial
25 fundamentally unfair so as to violate federal due process.
26 / / /
27 / / /
28 / / /
1 C. Claim Two
2 Petitioner alleges in claim two that the denial of his unequivocal Faretta motion as
3 untimely without an inquiry or findings concerning how the request would have disrupted
4 or delayed the proceedings, or whether a continuance should have been granted to allow
5 him to develop his ineffective assistance of counsel claims, violated his federal
6 constitutional right to self-representation. (ECF No. 13 at 13, 54-62.)
7 Respondent answers that the state court adjudication of this claim, on the basis that
8 the trial judge correctly determined the motion was untimely, is neither contrary to nor an
9 unreasonable application of clearly established federal law which provides that a Faretta
10 motion is timely if made weeks before trial. (ECF No. 18-1 at 6-7.) Respondent also
11 contends that even if an error occurred it was harmless because Petitioner sought to raise
12 issues irrelevant to sentencing. (Id. at 7-8.) Petitioner replies that the state court
13 adjudication of claim two is contrary to or an unreasonable application of federal law which
14 requires certain findings must be made and placed on the record when denying a Faretta
15 motion. (ECF No. 23 at 17-18.)
16 As with claim one, the Court will look though the silent denial of this claim by the
17 state supreme court to the appellate court opinion, which stated:
18 Peavy contends the court erroneously denied his Faretta motion, thus
depriving him of his right to self-representation. Peavy contends his request
19
for self-representation was unequivocal and the court “made no finding
20 concerning how [his] presentencing self-representation request would have
disrupted the proceedings at that stage of the case.”
21
22 He further argues that while he did not specifically say so at the motion
hearing, his statements reflected that he was arguing for a new trial on the
23
grounds of ineffective assistance of counsel.
24
A. Background
25
26 On September 6, 2016, the day scheduled for sentencing, Peavy
requested to represent himself. [Footnote: Specifically, Peavy told the court:
27
“I’d present a motion to go pro per on September 6, 2016. Or soon after
28 petition [sic], Emanual Peavy will move to the court [sic] dismiss his attorney,
1 your Honor, for the motion will be made on grounds causing [sic] for calling
for dismissal of defendant’s appointed counsel as expressed in Faretta v.
2
California. [¶] It is the defendant’s constitutional right of self-representation
3 and may waive the right to counsel in a criminal case, Faretta v. California.”]
The court cleared the courtroom and asked Peavy, “What do you want? This
4
is a [hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden)]. So
5 [it] essentially means you want to fire your lawyer.” Peavy agreed and
explained that his trial counsel “didn’t mitigate at all. So I have no
6
recommendation letters or anything. My family couldn’t contact [defense
7 counsel].”
8
The court explained the sentence was mandated by law and the court
9 did not have much discretion in sentencing him: “The only thing I really have
discretion at is a triad on the attempt murder [five, seven, or nine years]. Other
10
than that, really there’s nothing.” Peavy responded that he understood that,
11 adding: “But there's a lot of things that I want to get together and show you.
[¶] I mean, it’s a – it’s ineffective counsel, for one, leading, impeachment. I
12
don’t know if it’s probably corruption. There’s a lot going on in the trial.”
13 The court replied: “I actually was very impressed with [defense counsel]. He
focused on what needed to be focused on. And the defense of essentially that
14
gangs pass the guns around, that made a lot of sense to me. You know, in a
15 sense, it’s a whodunit. You got DNA. So you’ve got to explain away the
DNA somehow because in the modern world, DNA trumps everything. It just
16
does.” After listening to Peavy’s additional complaints about his defense
17 counsel, the court denied the Marsden motion. Peavy told the court: “It’s not
a Marsden. I’m wishing to go pro per. I mean, I’m going to get whatever I
18
get anyways.” In response, the court separately denied that Faretta motion as
19 untimely. Peavy proceeded to complain to the court about his defense
counsel’s trial performance. The court told him: “I’m not here [to] relitigate
20
your trial.” Immediately after that proceeding, the court sentenced Peavy to
21 the same term recommended by the probation officer.
22
B. Applicable Law
23
Under the Sixth Amendment of the United States Constitution,
24
defendants have a right to represent themselves in criminal trials. (Faretta,
25 supra, 422 U.S. at p. 819.) “On appeal, a reviewing court independently
examines the entire record to determine whether the defendant knowingly and
26
intelligently invoked his right to self-representation.” (People v. Doolin
27 (2009) 45 Cal.4th 390, 453.) A legitimate concern of the trial court is whether
defendant’s request is untimely and would needlessly delay trial. (Id. at p.
28
1 court’s discretion. (Ibid., citing People v. Mayfield (1997) 14 Cal.4th 668,
810.) “Much as a request to represent oneself at trial must be made a
2
reasonable time before trial commences, the request for self-representation at
3 sentencing must be made within a reasonable time prior to commencement of
the sentencing hearing.” (People v. Miller (2007) 153 Cal.App.4th 1015,
4
1024.)
5
C. Analysis
6
7 Peavy brought his motion just before the sentencing hearing began;
therefore, it was untimely. Although the court did not elaborate on its reasons
8
for the denial beyond stating it was untimely, we conclude that on this record
9 no more explanation was needed. Peavy had indicated that he needed to
gather records to support his arguments about trial counsel’s purported errors
10
made at trial. Peavy presumably would have needed a continuance for that
11 purpose. The court could have reasonably decided that such delay in
sentencing would have served no purpose. As the court stated, the sentencing
12
hearing was not the venue for relitigating defense counsel’s trial performance.
13 We conclude the court did not abuse its discretion in denying Peavy’s
untimely motion.
14
15 (ECF No. 19-21 at 13-16.)
16 Clearly established federal law provides that in order to properly invoke the right to
17 self-representation encompassed in Faretta, a criminal defendant’s request must be
18 knowing, intelligent, unequivocal, timely, and not made for the purpose of delay. United
19 States v. Maness, 566 F.3d 894, 896 (9th Cir. 2009). The only guidance provided by the
20 Supreme Court regarding timeliness of a Faretta motion provides that a motion made
21 “weeks before trial” is timely. See Stenson v. Lambert, 504 F.3d 873, 884-85 (9th Cir.
22 2007) (noting that Faretta “indicates only that a motion for self-representation made
23 ‘weeks before trial’ is timely.”) The Ninth Circuit has held that “[b]ecause the Supreme
24 Court has not clearly established when a Faretta request is untimely, other courts are free
25 to do so as long as their standards comport with the Supreme Court’s holding that a request
26 ‘weeks before trial’ is timely.” Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005).
27 As quoted above, the appellate court noted that California law provides that a request for
28 self-representation at sentencing must be made at a reasonable time prior to the sentencing
1 hearing. (ECF No. 19-21 at 16.) The state appellate court adjudication of claim two on
2 the basis that Petitioner’s post-trial Faretta motion was untimely is not contrary to or an
3 unreasonable application of clearly established federal law regarding timeliness. Id.
4 Petitioner contends the trial judge violated clearly established federal law requiring
5 a record be made of an inquiry into whether an untimely motion would delay or disrupt the
6 proceedings, and that the trial court should have construed his motion as a motion for a
7 new trial based on ineffective assistance of counsel. Faretta provides that in order to
8 “knowingly and intelligently” relinquish the benefits of representation by counsel, a
9 defendant “should be made aware of the dangers and disadvantages of self-representation,
10 so that the record will establish that ‘he knows what he is doing and his choice is made
11 with open eyes.’” Lopez v. Thompson, 202 F.3d 1110, 1117 (9th Cir. 2000) (quoting
12 Faretta, 422 U.S. 835). Petitioner does not contend there is an insufficient record that he
13 was provided with sufficient information at his Faretta hearing for him to make the choice
14 of relinquishing counsel knowingly and intelligently. In fact, his pre-trial Faretta motion
15 was granted and he represented himself briefly prior to trial before counsel was re-
16 appointed at his request, and he made three Marsden motions prior to trial and two during
17 trial. (ECF No. 19-1 at 170, 185-86, 190, 192, 199, 209, 222.)
18 Rather, Petitioner contends the record should reflect that the trial judge considered
19 whether the proceedings would be unduly disrupted before finding the motion was
20 untimely and should have considered giving him a continuance to develop his claims of
21 ineffective assistance of counsel. The Ninth Circuit has held, in the context of a petitioner
22 convicted in state court seeking federal habeas relief, that: “Neither the Constitution nor
23 Faretta compels the district court to engage in a specific colloquy with the defendant.
24 Because we cannot impose a procedural framework on state courts unless compelled by
25 the Constitution, we need not address whether the suggested colloquy was followed here.”
26 Lopez, 202 F.3d at 1117 (citing Smith v. Phillips, 455 U.S. 209, 221 (1982) (“Federal courts
27 hold no supervisory authority over state judicial proceedings and may intervene only to
28 correct wrongs of constitutional dimension.”)). Petitioner has failed to identify any clearly
1 established federal law which required the trial judge to inquire into or make a record of
2 the reasons for denying his clearly untimely post-trial Faretta motion or allowing him a
3 continuance to develop his ineffective assistance of counsel claims, which the trial judge
4 in any case addressed by complementing defense counsel’s representation. Id.; see e.g.
5 Whaley v. Thompson, 2000 WL 84364, at *3 (9th Cir. 2000) (unpublished memorandum)
6 (holding with respect to contention that state trial judge failed to make inquiry during
7 Faretta colloquy regarding defendant’s dissatisfaction with his attorney, “[o]ur Circuit has
8 not imposed such a rule, and it is not commanded by clearly established Federal law, as
9 determined by the Supreme Court of the United States, as required under federal habeas
10 law.”), citing 28 U.S.C. § 2254(d)(1). Finding no Faretta error, the Court will not address
11 Respondent’s contention that any error is harmless because it did not affect sentencing.
12 See Frantz, 533 F.3d at 734 (holding that Faretta error is structural and not susceptible to
13 harmless error analysis) (citing McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)).
14 Finally, although Petitioner agreed with his trial counsel and the trial judge at his
15 Faretta hearing that his sentence was mostly mandated by state law with very little
16 discretion (see ECF No. 19-19 at 3-4), the state appellate court noted, he “argues that while
17 he did not specifically say so at the motion hearing, his statements reflected that he was
18 arguing for a new trial on the grounds of ineffective assistance of counsel.” (ECF No. 19-
19 21 at 13.) The state court did not treat this contention as a separate claim, and Petitioner
20 did not raise it as a separate claim in state court or in his Second Amended Petition here.
21 Even if he had, or does, the decision whether to grant a motion for a new trial is controlled
22 by California law. See Cal. Evidence Code § 1181. Petitioner has not alleged a violation
23 of federal law or the federal constitution resulting from the failure of the trial judge to
24 construe his post-trial Faretta motion as a motion for a new trial.
25 Federal habeas relief is denied as to claim two because the state court adjudication
26 is neither contrary to, nor involves an unreasonable application of clearly established
27 federal law and is not based on an unreasonable determination of the facts in light of the
28 evidence presented in the state court proceedings. 28 U.S.C. § 2254(d)(1)-(2).
1 D. Claim Three
2 In the third and final claim of the Second Amended Petition, Petitioner claims that
3 the introduction of a partially unintelligible audio recording resulted in a fundamentally
4 unfair trial because: (1) it is impossible to know what the jury heard due to the poor quality
5 of the recording and they may have relied on the transcript provided by the prosecutor to
6 find an adopted admission which did not occur, (2) even if an adopted admission was made
7 it was more prejudicial than probative, and (3) the poor sound quality rendered meaningful
8 appellate review impossible. (ECF No. 13 at 13, 63-65.) Petitioner is referring to a
9 surreptitious recording of a conversation between him and his co-defendant in a jail cell
10 where he told his co-defendant their DNA had been found on shell casings at the crime
11 scene, prompting his co-defendant to say: “No doubt we fucked up, homie,” to which
12 Petitioner did not respond. (ECF No. 19-5 at 29.) The trial judge allowed the evidence to
13 be introduced as an adoptive admission over defense counsel’s objection that it was not
14 clear what prompted the co-defendant to make the quoted statement, or whether or not
15 Petitioner responded, since the vast majority of the recording of their whispered
16 conversation was inaudible and the jury might be misled by the lack of clear recording,
17 particularly if the prosecution was allowed to prepare a transcript based on their
18 interpretation as to what was said. (Id. at 30-37.)
19 When the recording was played for the jury they were given a transcript, which the
20 trial judge noted is required by state law (ECF No. 19-12 at 28-37), which is in the record.
21 (ECF No. 19-2 at 39-51.) Defense counsel objected that the transcript was unauthenticated,
22 and the trial judge responded by instructing the jury: “The transcript is there to aid you; all
23 right? The evidence is actually the tape itself. So if there’s a conflict between the audio
24 and the transcript, go with the audio; okay?” (ECF No. 19-12 at 30-31.) Defense counsel
25 argued in closing that because the statement was made in the context of the two men being
26 arrested and sitting together in a jail cell they were likely talking about messing up their
27 lives in general, not specifically about their DNA being found on the shell casings. (ECF
28 No. 19-15 at 38-39.)
1 Respondent answers that Petitioner has not presented this claim to any state court.
2 Respondent adds that although it is likely procedurally defaulted here and in the state court
3 by his failure to raise it on direct appeal, state court remedies remain available within the
4 meaning of the federal exhaustion doctrine. This is because the state supreme court has
5 discretion to reach the merits of the claim even if Petitioner were to present it at this late
6 date. (ECF No. 18-1 at 5-6.) Respondent argues the claim should be denied
7 notwithstanding the failure to exhaust because it is plainly meritless since the jury could
8 have drawn a permissible inference of consciousness of guilt from evidence Petitioner was
9 aware he and his co-defendant had made a mistake leaving shell casings containing their
10 DNA at the crime scene, thereby acknowledging involvement in the shooting. (Id. at 6.)
11 On February 21, 2020, before the Answer was filed, Petitioner filed an untitled
12 document in which he states he did not exhaust state court remedies with respect to claim
13 three, is “expressing to the courts to withdraw” the claim, and concludes: “So I would like
14 to go up the ladder on state remedies so I would like to withdraw [the claim].” (ECF No.
15 17 at 1.) There has been no ruling on Petitioner’s request.
16 The Court is required to liberally construe Petitioner’s pro se submissions both here
17 and in the state court, especially as to which claims are presented. Zichko v. Idaho, 247
18 F.3d 1015, 1020 (9th Cir. 2001). To the extent Petitioner’s document could be liberally
19 construed as a request to withdraw claim three from the Second Amended Petition and stay
20 this action while he returns to state court to exhaust, he would be required to show the
21 claim is not “plainly meritless.” Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017) (quoting
22 Rhines v. Weber, 544 U.S. 269, 277 (2005)). A claim is plainly meritless where “it is
23 perfectly clear that the petitioner has no hope of prevailing.” Id. (quoting Cassett v.
24 Stewart, 406 F.3d 614, 624 (9th Cir. 2005)). That same standard applies to whether this
25 Court can deny an unexhausted claim on the merits. See 28 U.S.C. § 2254(b)(2) (“An
26 application for a writ of habeas corpus may be denied on the merits, notwithstanding the
27 failure of the applicant to exhaust the remedies available in the courts of the state.”);
28 Cassett, 406 F.3d at 623-24 (holding that a claim may be denied under 28 U.S.C.
1 § 2254(b)(2) only where “it is perfectly clear that the petitioner has no hope of prevailing,”
2 as “[a] contrary rule would deprive state courts of the opportunity to address a colorable
3 federal claim in the first instance and grant relief if they believe it is warranted.”)
4 As discussed with respect to claim one, for Petitioner to prevail on a claim alleging
5 the improper admission of evidence at his trial he must show its admission rendered his
6 trial fundamentally unfair. See Holley, 568 F.3d at 1101 (“The admission of evidence does
7 not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in
8 violation of due process.”) Evidence does not render a trial fundamentally unfair unless
9 “there are no permissible inferences the jury may draw from the evidence.” Jammal, 926
10 F.2d at 920. “Even then, the evidence must be of such a quality as necessarily prevents a
11 fair trial,” which requires a showing that it is of the type the jury could use for an improper
12 purpose. Id. (quoting Kealohapauole, 800 F.2d. at 1465).
13 Petitioner does not dispute that the jury could have drawn a permissible inference
14 that he was involved in the shooting if in fact he failed to respond when his co-defendant
15 said they had messed up, and if in fact his co-defendant’s statement was made in response
16 to Petitioner informing him their DNA was found on shell casings at the scene. Rather, he
17 argues the recording of their conversation was of such a poor quality that the jury might
18 have relied on the prosecution’s transcript rather than the recording itself to find he did not
19 respond to his co-defendant’s statement or find it was Petitioner’s statement that their DNA
20 was on the shell casings which prompted his co-defendant to make the statement about
21 messing up. However, the jury was instructed that the recording, not the transcript, was
22 the evidence available for them to consider, if they wished to consider it at all, and that any
23 discrepancies between the two were to be resolved in favor of the recording. (ECF No. 19-
24 12 at 30-31.) They were also instructed that Petitioner could not be convicted based on his
25 out-of-court statements alone. (ECF No. 19-14 at 127.) The jury is presumed to have
26 followed the instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000). In addition,
27 defense counsel argued in closing that the statement: “No doubt we fucked up, homie” was
28 made in the context of the two men having been arrested and sitting in a jail cell having
1 messed up their lives generally, not specifically about their DNA being found on the shell
2 casings. (ECF No. 19-15 at 38-39.)
3 Petitioner’s argument would require a finding the jury did not follow the simple and
4 straightforward instruction that the recording was the evidence of the conversation and not
5 the transcript, and that any discrepancy between the two were to be resolved in favor of the
6 recording. See Richardson v. Marsh, 481 U.S. 200, 206 (1987) (applying “the almost
7 invariable assumption of the law that jurors follow their instructions.”) That presumption
8 can be rebutted where Petitioner shows “the risk that the jury will not, or cannot, follow
9 instructions is so great, and the consequences of failure so vital to the defendant, that the
10 practical and human limitations of the jury system cannot be ignored.” Bruton v. United
11 States, 391 U.S. 123, 135 (1968) (finding that “powerfully incriminating extrajudicial
12 statements of a codefendant” with “inevitably suspect” credibility were devasting to the
13 defense). Petitioner has not, and cannot, make such a showing here. The risk the jury
14 could not or would not follow their instruction is low, as the instruction was simple and
15 straightforward. The consequence of their failure to do so, which is the possibility they
16 would consider evidence not heard in the recording that Petitioner silently adopted his co-
17 defendant’s admission they messed up by allowing their DNA to be found at the scene,
18 was not vital to the defense. The jury already had before them overwhelming evidence of
19 Petitioner’s involvement in the shooting for which he was on trial, including his DNA on
20 shell casings found at the scene which had been fired from the gun found in his bedroom.
21 In addition, the defense dealt with the evidence of the adopted admission by arguing it was
22 not about having left DNA at the scene but about messing up their lives in general, and
23 with evidence that similar shell casings were found at the scene of a gang shooting a month
24 earlier committed by Petitioner’s friend and fellow gang member, and that gang members
25 share weapons and ammunition.
26 Furthermore, even if the evidence rose to the level of a federal due process violation,
27 any error would be harmless unless it had a substantial and injurious effect or influence on
28 the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Williams v. Stewart, 441
1 F.3d 1030, 1039 (9th Cir. 2006) (applying Brecht harmless error test to due process claim
2 based on introduction of suggestive pretrial identification). The evidence that Petitioner
3 adopted his co-defendant’s admission they had messed up because shell casings were found
4 at the scene with their DNA was overshadowed by the fact that Petitioner’s DNA was
5 actually found on the shell casings at the scene fired from the firearm recovered from his
6 bedroom, and by the evidence he used the same gun three days later to commit a gang
7 shooting under nearly identical circumstances. Any error in the admission of the evidence
8 is clearly harmless.
9 Finally, although unclear, the third claim in the Second Amended Petition appears
10 to allege meaningful appellate review is impossible because the audio recording is
11 unintelligible. (ECF No. 16 at 63.) Although the States have no federal constitutional
12 obligation to provide appellate review of criminal proceedings, once such review is
13 provided, a record insufficient to permit adequate and efficient appellate review can
14 infringe upon federal constitutional rights. See Griffin v. Illinois, 351 U.S. 12, 18-20 (1956)
15 (holding that denial of free trial transcripts to indigent defendants violated due process and
16 equal protection); Parker v. Dugger, 498 U.S. 308, 321 (1991) (stating that the court has
17 “emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the
18 death penalty is not imposed arbitrarily or irrationally.”) The trial judge here stated that
19 the California Rules of Court require a transcript be prepared so the record on appeal would
20 contain a written record of the recording played in court as a convenience to the appellate
21 court since the court reporter does not transcribe such recordings, but acknowledged the
22 recording would be available to the appellate court if necessary. (ECF No. 19-12 at 36.)
23 Because the recording and transcript were available to the appellate court, Petitioner’s
24 contention that his federal constitutional rights were violated because the audibility of the
25 recording was so poor it made meaningful appellate review impossible does not present a
26 colorable federal claim.
27 Accordingly, habeas relief is denied with respect to claim three in the Second
28 Amended Petition for failure to present a colorable federal claim irrespective of any failure
1 || to exhaust state court remedies and irrespective of whether Petitioner intended to apply for
2 ||a stay of this action while he returned to state court to exhaust.
3 E. Certificate of Appealability
4 [T]he only question [in determining whether to grant a Certificate of Appealability]
5 ||is whether the applicant has shown that jurists of reason could disagree with the district
6 |/court’s resolution of his constitutional claims or that jurists could conclude the issues
7 presented are adequate to deserve encouragement to proceed further.” Buck v. Davis, 580
8 __, 137 S.Ct. 759, 773 (2017). A Certificate of Appealability is not appropriate
9 || under that standard as to any claim in the Second Amended Petition.
10 ||IV. CONCLUSION
11 For the foregoing reasons, IT IS HEREBY ORDERED that Judgment be entered
12 || DENYING the Second Amended Petition for a Writ of Habeas Corpus and DENYING a
13 || Certificate of Appealability.
14
15 ||} DATED: August 17, 2020
16 [Mthe CJu - (gl
17 HON. MICHAEL M. ANELLO
United States District Judge
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