Appendix — Shumsky v. Chein

Supreme Court, U.S.

PILED

O4 219 AUG1 2 2004

N0-__@ ete OF THE CLERK

IN THE

Supreme Court of the Anited States

RICHARD SHUMSKY, Chief Probation Officer,

Los Angeles County,

Petitioner,

Vv.

EDMUND Y. CHEIN,

Respondent.

On Petition For Writ Of Certiorari

To The U.S Court Of Appeals For The Ninth Circuit

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

STEVE COOLEY

District Attorney of Los Angeles County

ROBERT SCHIRN

Head Deputy, Appellate Division

BRENTFORD J. FERREIRA

MATTHEW G. MONFORTON (Counsel of Record)

Deputy District Attorneys

320 West Temple St., Ste. 540

Los Angeles, California 90012

(213) 974-5911

Counsel for Petitioner

$5 APR SS EL OC SEE SETI,

INDEX

Opinions & Orders Page

California Court of Appeal Decision

Affirming Chein’s Conviction A-1

California Supreme Court’s Order Denying

Chein’s Petition For Review A-29

Report & Recommendation Of The Magistrate

Judge Recommending Dismissal of Chein’s

Petition For Wnt of Habeas Corpus A-30

Order Of The District Court Approving

Recommendation & Report A-77

Judgment Of The District Court Dismissing

Chein’s Petition A-78

Panel Opinion Of The Ninth Circuit Affirming

The Judgment Of The District Court A-79

Majority Opinion A-81

Dissenting Opinion A-96

Order of The Ninth Circuit Granting Chein’s

Petition For En Banc Rehearing A-111

En Banc Opinion Of The Ninth Circuit Reversing

The Judgment Of The District Court A-112

Majority Opinion A-113

Dissenting Opinion A-141

A-1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B 113514

(Super. Ct. No. BA076453)

Plaintiff and Respondent,

COURT OF APPEAL

v. -SECOND DIST.

EDMUND Y. CHEIN, FILED

Defendant and Appelllant, | JOSEPH A. LANE Clerk

C.HON

[stamp]

APPEAL from a judgment of the Superior Court of Los

Angeles County, Lance A. Ito, Judge. Affirmed.

Cleary & Sevilla and Charles M. Sevilla for Defendant

and Appellant.

Daniel E. Lungren, Attorney General, George

Williamson, Chief Assistant Attorney General, Carol

Wendelin Pollack, Senior Assistant Attorney General,

Pamela C. Hamanaka, Supervising Deputy Attorney

General, and Roy C. Preminger, Deputy Attorney

General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant, Edmund Y. Chein, appeals from his

convictions for three counts of perjury. (Pen. Code" § 118.7)

Defendant argues: the testimony of Judge Robert Altman -

amounted to a directed verdict and the denial of a fair trial;

prosecutorial misconduct denied him a fair trial; there was

insufficient evidence to support his convictions; the tral

court erred in failing to give a requested jury instruction;

and the trial court's failure to instruct on the "delivery"

element of the perjury offense in count 4 relieved the

prosecution of its burden to prove all elements beyond a

reasonable doubt.

DISCUSSION

A. Factual And Procedural Background

Defendant received a bachelor's degree from the

University of California in 1971. He attended Cornell

University Medical School from 1971 to 1975. Defendant

did not graduate from Cormell. Defendant attended

Southwestern University School of Law, where he received

' All further statutory references are to the Penal Code unless

otherwise indicated.

? Penal Code section 118 provides in pertinent part: “(a) Every

person who, having taken an oath that he or she will testify,

declare, depose, or certify truly before any competent tribunal,

officer, or person, in any of the cases in which the oath may by

law of the State of California be administered, willfully and

contrary to the oath, states as true any material matter which he or

she knows to be false, and every person who testifies, declares,

deposes, or certifies under penalty of perjury in any of the cases

in which the testimony, declarations, depositions, or certification

is permitted by law of the State of California under penalty of

perjury and willfully states as true any material matter which he

or she knows to be false, is guilty of perjury....”

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a juris doctor degree. He received his medical deg'ee in

1980 from the American University of the Caribbean

Medical School. Defendant completed a post- doctoral

medical residency at the University of Southern California

in 1984. This residency program made defendant eligible

to become a board certified specialist in physical medicine

and rehabilitation. Such certification did not included

orthopedic surgery. Defendant assisted in orthopedic

surgery. However, he was not a board certified specialist

in orthopedic surgery. In order to become certified by the

American Board of Orthopedic Surgery (the board): a

physician was required to complete a five-year residency;

the five-year residency was to be ig orthopedic surgery;

and the doctor was required to serve an additional two

years of private practice as an orthopedic surgeon. Only

then could the physician become board certified in the

field of orthopedic surgery.

When the evidence is viewed in a light most

favorable to the judgment (Jackson v. Virginia (1979) 443

U.S. 307, 319; Taylor v. Stainer (9th Cir. 1994) 31 F.3d

907, 908-909; People v. Barnes (1986) 42 Cal.3d 284, 303),

defendant committed perjury while testifying under oath at

a civil trial and in interrogatories answers. Defendant

testified as a witness offering expert testimony in the civil

lawsuit of Frank and Sandra Lopez versus Consolidated

Freightways and Joel A. Frederick, Los Angeles Superior

Court case No. WEC 105580. Defendant was the treating

physician of Mr. and Mrs. Lopez. Mr. and Mrs. Lopez

were claiming injuries from an automobile accident. The

trial was presided over by Judge Robert Altman. Judge

Altman later testified at defendant's perjury trial. Judge

Altman testified as to the materiality element of

defendant's false testimony at the Lopez trial. At the Lopez

trial, defendant testified that he graduated from Cornell

Medical School and that he was certified by the American

Board of Orthopedic and Neurological Surgery. Defendant

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also testified during the Lopez trial that he had only one

office location at the time of trial and on October 9, 1989.

However, when defendant was deposed in another civil

case, he testified that on October 9, 1989, he practiced out

of offices in South Gate, Carson, and Long Beach.

Defendant registered fictitious business name statements

with the Los Angeles County Clerk for seven different

orthopedic or neurological medical groups at various

locations. Other exhibits introduced at trial demonstrated

that defendant misrepresented facts regarding the medical

school he attended and the location of his business office. In

another civil matter, Dirk Kancilia v. Edmund Chein, case

No. LC012300, defendant declared and certified under

penalty of perjury in response to an interrogatory that he

had attended and received a medical degree from the

American University School of Medicine in Florida.

B. Judge Altman's Testimony

Defendant argues reversal is in order because Judge

Altman's testimony: was irrelevant; exceeded the scope of

the issue of materiality; was prejudicially presented as

expert testimony; and was tantamount to a directed verdict.

Further, defendant argues Judge Altman injected gratuitous

comments while subject to cross-examination by defense

counsel. We disagree that any of these arguments permits

reversal.

1. Constitutional claims

To begin with, we agree with the Attorney General

that defendant may not raise any constitutional objections

on appeal concerning Judge Altman's testimony. This is

because defendant never raised them before the trial judge.

The California Supreme Court has repeatedly held that

constitutional objections must be interposed before the trial

judge in order to preserve such contentions for appeal.

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(People v. Williams (1997) 16 Cal.4th 153, 250 [objection

that admission of gang paraphernalia violated defendant's

associational - rights under the First and Fourteenth

Amendments waived when not presented in trial court];

People v. Vera (1997) 15 Cal.4th 269, 274 [defendant

precluded from asserting his claim of an ineffectual jury

waiver for failing to alert the trial court by a timely

objection]; People v. Padilla (1995) 11 Cal.4th 891, 971,

overruled on another point in People v. Hill (1998) 17

Cal.4th 800, 823. fn. 1 [failure to request a particular

instruction where there is no sua sponte duty to instruct

waived due process contention]; People v.-Rodrigues

(1994) 8 Cal.4th 1060, 1116, fn. 20 [the defendant's federal

constitutional due process, fair trial, reliable guilt

determination claims concerning the admissibility of a

videotape waived in a capital case when they were not

interposed in the trial court]; People v. Garceau (1993) 6

Cal.4th 140, 173 [Sixth and Fourteenth Amendment claims

of denial of fair trial and equal protection in connection

with jury selection waived when not presented in trial

court]; People v. Saunders (1993) 5 Cal.4th 580, 590

[defendant's failure to object that he was deprived of his

right to jury trial on prior convictions resulted in forfeiture

of that right]; People v. McPeters (1992) 2 Cal.4th 1148,

1174 [Sixth Amendment discriminatory juror selection

issue waived when not presented in trial court]; People v.

Ashmus (1991) 54 Cal.3d 932, 972-973, fn. 10 [Fifth,

Eighth, and Fourteenth Amendment self-incrimination,

cruel and unusual punishment, and due process claims

respectively waived by failure to interpose them in trial

court].) Defendant's constitutional contentions concerning

the propriety of Judge Altman's testimony have been

waived, forfeited, and procedurally defaulted.

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2. Relevancy

Defendant filed a motion in liming prior to the

commencement of testimony to exclude Judge Altman's

testimony as irrelevant. Relevancy arguments are

evaluated by appellate courts utilizing the deferential

abuse of discretion standard-of review. (People v. Kipp

(1998) 18 Cal.4th 349, 369: People v. Scheid (1997) 16

Cal.4th 1, 13-14.) The record does not reflect the trial

court's specific ruling on the motion. However, there was

inferential evidence of such a ruling. Prior to trial, Judge

Lance [to commented. that there had been a discussion

between the court and counsel off the record where some

rulings were made pursuant to Evidence Code section 402

and tentative rulings regarding depositions and "other

matters." There were also discussions on the record

regarding limiting Judge Altman's testimony to the three

statements made by defendant in the Lopez trial. Judge Ito

stated: "... [T]hen he can give an opinion as to why that

testimony, if false, was material." Defense counsel

acknowledged the relevancy of the judge's testimony:

“Judge Altman is seated here. The Issue of his testimony is

relevant to his [defendant's] credibility, to his expertise

and to the nature and extent of the injuries of the people he

treated or he testified that he treated. That's it.” Finally, in

her opposition to defendants motion for new trial, the

prosecutor acknowledged that the trial court had ruled on

the motion in limine, finding that Judge Altman's

testimony was relevant. The trial court, within the

allowable scope of judicial discretion, could find the

testimony of Judge Altman was relevant to the question of

the materiality of defendant's false statements. (Evid.

Code, § 210; 2 Witkin, Cal. Criminal Law (2d ed. 1988) §

1186, pp. 1366-1368; see People v. Kobrin (1995) 11

Cal.4th 416, 426.)

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3. Opinion testimony

Defendant further argues that Judge Altman should

not have been able to offer an opinion concerning the

materiality of the false statements in the Lopez trial. As the

Supreme Court has repeatedly held, the issue of

admissibility of evidence is not cognizable on appeal if not

raised before the trial judge. (People v. Carpenter (1997)

15 Cal.4th 312, 385; People v. Scott (1997) 15 Cal.4th

1188, 1217-1218; People v. Champion (1995) 9 Cal.4th 879,

918; People v. Clark (1993) 5 Cal.4th 950,988. fn. 13; People

v. Raley (1992) 2 Cal.4th 870, 892.) Defendant's motion in

limine challenged only the relevancy of Judge Altman's

testimony. It did not raise the issue of the propriety of his.

appearance as a witness who presented opinion testimony

based upon special skill, knowledge, training. and

experience. Nothing in the record reflects a further

objection by defendant on this basis. As a result, he has

forfeited or waived the right to raise the issue here

concerning the propriety of the admissibility of Judge

Altman's opinion.

In any event, Judge Altman's testimony as a witness

offering opinion testimony could properly be admitted into

evidence. We examine contentions a particular issue

should not be the subject of opinion testimony utilizing the

deferential abuse of discretion standard of review. (People

v. Mayfield (I 997) 14 Cal.4th 668, 766; People v. Chavez

(1985) 39 Cal.3d 823, 828.) The California Supreme

Court has held that a properly qualified witness may “offer

an opinion on ‘a subject that is sufficiently beyond

common experience that the opinion of an expert would

assist the trier of fact.’” (People v. Mayfield, supra, 14

Cal.4th at p. 766, quoting People v. Cole (1956) 47 Cal.2d

99, 103; People v. Humphrey (1996) 13 Cal.4th 1073,

1095; see also Evid. Code, § 801, subd. (b).) In addition,

the Supreme Court has held: “[A] particular expert is

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sufficiently qualified if ‘the witness has sufficient skill or

experience in the field so that his [or her] testimony would

be likely to assist the jury in the search for the truth.’”

(People v. Mayfield, supra, 14 Cal.4th at p. 766, quoting

Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.) The

Supreme Court has also determined that an opinion

testimony remains admissible even if it deals with the

ultimate issue in the case. (Miller v. Los Angeles County

Flood Control Dist. (1973) 8 Cal.3d 689, 702; People v.

Polk (1964) 61 Cal.2d 217, 233; People v. Olguin (1994)

31 Cal.App.4th 1355, 1371; People v. Doss (1992) 4

Cal.App.4th 1585, 1596; Evid. Code, § 805.) The California

Supreme Court has determined that the issue of materiality

in a perjury case is a mixed question of fact and law to be

resolved by the jury. (People v. Kobrin, supra, 11 Cal.4th

at p. 425; see People v. Feinberg (1997) 51 Cal.App.4th

1566, 1572-1573.) In this case, the issue of materiality was

the proper subject of opinion testimony to add to the jury's

understanding of the issues. Judge Altman had the

expertise and skills required to testify as to what was

material in a civil action for damages, particularly in a

matter over which he presided. Furthermore, materiality

was an issue for which the jury may have had little or no

knowledge. No abuse of discretion occurred in permitting

Judge Altman to offer an opinion on the materiality issue.

4. Directed Verdict

Defendant's additional argument that Judge

Altman's testimony on the materiality issue amounted to a

directed verdict was waived by his failure to raise the

specific claim in the tral court. (People v. Kirkpatrick

(1994) 7 Cal.4th 988, 1014-1015; People v. Garceau,

supra, 6 Cal.4th at p. 203; People v. Sims (1993) 5 Cal.4th

405, 448.) Nonetheless, we agree with the Attorney

General that Judge Altman's testimony did not decide the

issue of materiality for the jury. Furthermore, the jury was

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issue of materiality for the jury. Furthermore, the jury was

instructed: “In order to prove this crime [perjury], each of

the following elements must be proved: [J] ... The false

statement was material....” The jury was also instructed

regarding: the credibility of witnesses; witnesses' willfully

false testimony; weighing conflicting testimony;

sufficiency of testimony of one witness; opinion

testimony; the ability to disregard any such unreasonable

opinion testimony; perjury defined; the definition of under

“penalty of perjury”; and the proof necessary for perjury,

not based solely on the testimony of one witness. The

testimony of Judge Altman did not result in a directed

verdict. (People v. Figueroa (1986) 41 Cal.3d 714, 723-

734; People v. Jarrell (1987) 196 Cal.App.3d 604, 609-

611.)

5. Prejudice of Judge Altman's testimony

Defendant argues that Judge Altman's testimony

was excessively prejudicial. This is especially so because

_ Judge Altman presided over the civil matter in which

defendant was alleged to have committed perjury. We

examine this contention utilizing the deferential abuse of

discretion standard of review. (People v. Jones (1998) 17

Cal.4th 279, 299-304; People v. Rodrigues, supra, 8 Cal.4th

at pp. 1128-1129.) In any event, Evidence Code section

700 provides that every person is qualified to be a-witness,

except those prohibited by statute. Evidence Code section

703.5 provides in part: “NO person presiding at any

judicial ... proceeding, ... shall be competent to testify, in

any subsequent civil proceeding, as to any statement,

conduct, decision, or ruling, occurring at or in conjunction

with the prior proceeding, except as to a statement or

conduct that could ... constitute a crime....” [Emphasis

added.] (See also Hamilton v. Vasquez (1994) 17 F.3d

1149, 1155 [trial judge in criminal case may testify at

federal evidentiary hearing in a related subsequent habeas

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false testimony. Judge Altman was competent to testify

thereto at the resulting criminal trial. No abuse of

discretion occurred.

6. Judge Altman's testimony

Defendant argues that Judge Altman injected

gratuitous prejudicial comments. Defendant argues these

comments deprived him of a fair trial. More specifically,

defendant argues: Judge Altman directly commented on his

opinion that defendant lied in the Lopez case; Judge Altman

added non-responsive commentary regarding defendant's

credibility; and Judge Altman repeatedly exceeded the

allowable scope of his testimony and volunteered prejudicial

commentary. However, in only I instance cited amongst

some 18 examples did defense counsel object to Judge

Altman's testimony. In fact, much of the objectionable

testimony was given by Judge Altman in response to cross-

examination by defense counsel. As the trial court pointed

out at the time defendant moved for mistrial: "[I]t was my

impression that you were asking him some of these

questions to let him run so to speak to establish his personal

embroilment for impeachment purposes and given the

responses that you got from him, many of which appeared to

me to be nonresponsive. But I didn't hear a motion to strike

or for any admonition. [J] I think -- it was my impression that

what you were doing at that time was so that in argument you

can later say, if you recollect. I asked Judge Altman this

question, which the answer to which was yes or no. and yet

he had to volunteer that this was.... [{] I thought you were

asking those questions and eliciting those type of

responses as a tactical decision to show any interest of

bias that that witness might have had." The mistrial motion

was an untimely effort to strike testimony defense counsel

himself has elicited. We agree with the Attorney General that

the issue of the purported impropriety of Judge Altman's

answers has not been preserved because: no statutorily

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answers has not been preserved because: no statutorily

mandated motion to strike was ever interposed (Evid. Code,

§ 353, subd. (a)); the answers were in response to cross-

examination propounded by defense counsel (Ashley vy.

Rivera (1934) 220 Cal. 75, 79 ["Appellant is now in no

positionto complain that prejudice has resulted from his

own act in introducing said statement into the record"):

Hofineister v. Delta Verde Farms (1959) 171 CaLApp.2d

688, 697 ["appellants themselves introduced evidence of the

circumstances surrounding the execution of the instruments

and they cannot now complain of the admission of evidence

which they themselves introduced"); Zarafonitis v. Yellow

Cab Company (1932) 127 Cal.App. 607, 609 ["Where

evidence of facts likely to be prejudicial to a party are

invited.... he is under well-settled principles in no position

to complain ....]; 3 Witkin, Cal. Evidence (3rd ed. 1986) §

2014, p. 1974); the objection to the testimony was

untimely (Evid. Code, § 353, subd. (a); People vy.

Kirkpatrick, supra, 7 Cal.4th at p. 1014 [a party must make

a timely and specific objection when the evidence is offered

..-"]; People v. Pride (1992) 3 Cal.4th 195, 240 ["a prompt

objection and admonition would have cured any harmful

effect ...."]; People v. Corrigan (1957) 48 Cal.2d $51, 555-

556 ["No objection was made to the questions asked of the

witness by the judge, nor did defendant make a motion to

strike the questions or answers. It is settled that a judge's

examination of a witness may not be assigned as error on

appeal where no objection was made when the questioning

occurred. [Citations.]"]; People v. Camacho (1993) 19

Cal.App.4th 1737, 1745 [“Appellants, by waiting until after

the trial court had concluded its questioning and after the

prosecutor had concluded his recross-examination- failed

to timely object to trial court ‘cross-examination.’ (Evid.

Code. § 353 [orig. italics])"); Pineda v. Los Angeles Turf

Club. Inc. (1980) 112 Cal.App.3d 53, 61 [objection near end

of physician's testimony untimely]; Wagner v. Osborn

(1964) 225 Cal.App.2d 36, 44 [“Objections on the

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evidence of the blood sample was already in the record ...

came too late...."]; see Romero v. Volunteer State Life Ins.

Co. (1970) 10 Cal.App.3d 571, 577 [“ ‘Objections on the

foundation of the expert's opinion interposed after

evidence of the blood sample was already in the record not

only came too late, but failed to specify the particular

defect now urged. The objections insofar as admissibility

of the evidence is concerned must be held to have been

waived.’”]; 3 Witkin, Cal. Evidence, supra, § 2013, p.

1973); Wegner, Cal. Practice Guide Civil Trials and

Evidence (1997) § 8:3311, p. 8G-6); and no request for an

admonition was ever made which would have obviated

any harm. (People v. Cox (1991) 53 Cal.3d 618, 682,

citing People v. Green (1980) 27 Cal.3d 1, 27.) Here,

defense counsel utilized Judge Altman's testimony in

closing argument to impeach and diminish its

importance.” Defendant has therefore waived the issue on

> Defense counsel argued in part: "You've got a bigoted

court judge mad as a hatter who came in here and testified

this school was a flea bag in the Caribbean. This is a

perfect case for a jury because when you have someone in

the system, the D.A.'s office or a judge after you, you need

people from the community to decide the case, because

otherwise, you are not going to get a fair shot. . . . And all

of a sudden, the focus comes out on Dr. Chein with an

incredible fallacy that I almost wouldn't know that it was

coming from -- sort of sinister for this case until I saw

Judge Altman unfortunately on cross-examination. Then

you know what this case is all about. It's about a judge

who has an ego. And when I read the transcript of what he

said, the way lie insisted what he heard and he insisted then

and he insisted now that Dr. Chein said something that he

didnt say -- but more importantly, what the prosecutor told

you in her opening statement was that Judge Altman took

the case away from the jury because of Dr. Chein's

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appeal.

C. No Prosecutorial Misconduct Occurred

Defendant argues that alleged instances of

prosecutorial misconduct permeated the -trial to his prejudice

and resulted in the denial of a fair trial as guaranteed by the

state and federal Constitutions. Preliminarily, this contention

of constitutional error was not the basis of an objection in the

trial court and thus is the subject of waiver, forfeiture, and

procedural default. (People v. Williams, supra, 16 Cal.4th at

p. 250; People v. Vera, supra,15 Cal.4th at p. 274; People v.

the case away from the jury because of Dr. Chein's

testimony. [{] What kind of judge is that? Mr. and Mrs.

Lopez had a right to a trial, didn't they? And because a

witness is called that the judge doesn't like his testimony,

he considers the school a flea bag in the Caribbean,

because he makes a mistake, he takes the case away....

And he came in here and tried to do the same thing. [J]

And I stack my client's testimony against Judge Altman's.

And unfortunately, I think Judge Altman slighted his duty

as a judge when he testified in this case and he did the very

kind of things, did he not, that he accuses Dr. Chein of

doing." Defense counsel continued: "Now. Altman was a

partisan. He's obviously sort of the probably [sic] instigator

of this case. So -- it's not like he's being paid money, but

he's got something more at stake, which is his ego. which

apparently is enormous .. . . [{] So he does the very thing

that he doesn't like about Dr. Chein, that Dr. Chein, as a

partisan witness, if given a choice between two answers--

like any other partisan witness . . . basically is paid to be an

advocate...”"Defense counsel gave examples of the judge's

testimony and continued: "So he violated his duty as a

judge. He slighted the U.S. Constitution. He violated the

common understanding of how this case was going to run,

all because he wanted to stick it to Dr. Chein who you'll see

from the transcript he does not like." -

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supra, 8 Cal.4th at p. 1116, fn. 20; People v. Garceau,

supra, 6 Cal.4th at p. 173; People v. Saunders, supra, 5

Cal.4th at p. 590; People v. McPeters, supra, 2 Cal.4th at p.

1174; People v. Walker (1991) 54 Cal.3d 1013, 1023; People

v. Ashmus, supra, 54 Cal.3d at - pp. 972-973, fn. 10; People

v. Yarbrough (1997) 57 Cal.App.4th 469, 477-478.)

In reviewing the principles governing findings of

prosecutorial misconduct the California Supreme Court has

consistently noted: "The applicable federal and state

standards regarding prosecutorial misconduct are well

established. A prosecutor's... untemperate behavior violates

the federal Constitution when it comprises a pattern of

conduct "so egregious that it infects the tral with such

unfairness as to make the conviction a denial of due

process. [Citations.] Conduct by a prosecutor that does not

render a criminal tal fundamentally unfair is prosecutorial

misconduct under state law only if it involves the use of

deceptive or reprehensible methods to attempt to persuade

either the court or the jury. [Citation.] (People v. Hill,

supra, 17°Cal.4th at p. 819, quoting People v. Gionis

(1995) 9 Cal.4th 1196, 1215, People v. Espinoza (1992) 3

Cal.4th 806, 820, and People v. Samayoa (1997) 15

Cal.4th 795, 841, internal quotations omitted; see also

Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643;

People v. Harris (1989) 47 Cal.3d 1047, 1083-1084.)

A reviewing court will generally not review a

claim of prosecutorial misconduct unless an objection and

request for admonishment was raised at trial, or unless an

admonishment would not have cured the harm. (People v.

Gionis, supra, 9 Cal.4th at p. 1215; People v. Price (1991)

1 Cal.4th 324, 447.) The California Supreme Court has

held: ‘The reason for this rule, of course, is that “the trial

court should be given an opportunity to correct the abuse

and thus, if possible, prevent by suitable instruction the

harmful effect upon the minds of the jury.”’” (People v.

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harmful effect upon the minds of the jury.”’” (People v.

Cox, supra, 53 Cal.3d at p. 682, quoting People v. Green,

supra, 27 Cal.3d at p. 27.)

Defendant argues three separate instances of

prosecutorial misconduct occurred. First, during the

prosecutor's opening argument, defense counsel objected

to the prosecutor's references to the issues involved in the

Lopez case.* The trial court sustained three objections and

later admonished the jury to disregard the references. to

"fraud" or “set-up automobile accident” referred to in the

opening argument. Furthermore, the jury was instructed

that the statements of counsel were not evidence. The

United States Supreme Court has determined that juries

have the ability to “approach their task responsibly and to

Sort out discrete issues given to them under proper

instructions by the judge...” (Spencer v. Texas (1967) 385

U.S. 554, 565.) The California Supreme Court has

consistently stated that on appeal it is presumed that the jury

is capable of following the instructions they are given.

(People v. Bonin (1988) 46 Cal.3d 659, 699, overruled on

other grounds in People v. Hill, supra, 17 Cal.4th at p. 823,

fn. 1; People v. Kemp (1961) 55 Cal.2d 458, 477; People v.

* There appeared to be some confusion regarding the trial

court's limitation on the prosecutor's opening argument.

Following its conclusion and prior to the trial court's

admonition to the jury, the prosecutor stated: "You [the court]

expressed to me I needed to phrase everything as being an

issue and not retrying the Lopez case and saying that one thing

happened, and | never declared that anything happened, but

only that these were issues; and I understood your admonition

was, don't retry the Lopez case." The trial court then clarified:

"[T]he issue is Dr. Chein's qualifications to testify in the

matter and the weight that a trier of fact would give to his

testimony, and the fact that it involved the testimony given in a

case that more than one person suspects it was a setup accident

is not directly relevant in this case."

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48 Cal.2d 20, 23.) There is no indication that the

prosecutor used deceptive or reprehensible methods to

attempt to persuade the jury or that the jury failed to follow

the court's admonition and instructions here.

Second, it is argued that the prosecutor ignored the

trial court's order to limit Judge Altman's testimony to the

opinion testimony about why defendant's statement in the

Lopez matter, if false, was material. Defendant refers to

Judge Altman's "multi-pronged character attack on

appellant including references to the ‘bogus' accident in

which appellant treated the victim-plaintiffs ...." Defendant

argues his fair trial rights were irreparably damaged at the

outset of the proceedings in the present case. However, as

noted earlier, most of the testimony to which defendant now

objects to for the first time on appeal was elicited during

the cross-examination of Judge Altman by defense counsel.

Furthermore, in those instances where the testimony to

which defendant now objects was elicited on direct

examination, defense counsel objected only once. More

specifically, when asked by the prosecutor whether the

American Board of Orthopedic and Neurological Surgery

was approved of by the American Medical Association,

Judge Altman responded that it was a "phony board."

Defense counsel objected on the grounds the question

called for a conclusion. The trial court ruled that Judge

Altman could testify regarding whether or not he knew if

the board was recognized by the American Medical

Association. The prosecutor's question was innocuous.

Furthermore, there were no requests for admonitions

regarding that question or any other inquiry posed by the

prosecutor. Therefore, defendant has waived the issue on

appeal. (People v. Gionis, supra, 9 Cal.4th at p. 1215;

People v. Price, supra, 1 Cal.4th at p. 447.)

Even if we reach the merits of the misconduct

claims, we find no impropriety. The Supreme Court has

A-17

claims, we find no impropriety. The Supreme Court has

held: "[A] prosecutor is given wide latitude during

argument. The argument may be vigorous as long as it

amounts to fair comment on the evidence, which can

Include reasonable inferences, or deductions to be drawn

therefrom. [Citations.]... A prosecutor may vigorously

argue his case and is not limited to Chesterfieldian

politeness [citation], and he may use appropriate

epithets.... (People v. Wharton [(1991)] 53 Cal.3d [522.]

567-568 [ ].)” (People v. Hill. supra, 17 Cal.4th at p. 819,

internal quotes omitted. quoting People v. Williams,

supra, 16 Cal.4th at p. 221.) Here the prosecutor

properly responded in rebuttal to defense counsel's

passionate argument in his effort to discredit Judge

Altman's testimony. (See fn. 3 ante.) Finally, we find the

alleged prosecutorial misconduct, even if true, was

harmless in this instance and a different result is not

reasonably probable absent such conduct. (People v.

Hardy (1992) 2 Cal.4th 86, 172-173; People v. Milner

(1988) 45 Cal.3d 227, 245.) As will be discussed below,

there was strong evidence of defendant's guilt as to three

of the counts. The jury was instructed that the statements

of the attorneys was not evidence. The jury found

defendant not guilty of one of the perjury counts.

Finally, the prosecutor repeatedly explained she was not

commenting on the merits of the Lopez case. While the

prosecutor may have exceeded the limitations imposed by

the trial court regarding references to the Lopez trial and

emphasized Judge Altmans disdain for defendant's false

testimony, her comments did not render the instant

proceedings fundamentally unfair and did not amount to

a deceptive or reprehensible method of persuasion.

(Donnelly v. DeChristoforo, supra, 416 U.S. at pp. 642-

643; People v. Gionis, supra, 9 Cal.4th at pp. 1218-1219;

People v. Espinoza, supra, 3 Cal.4th at p. 820.)

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D. Sufficiency of the Evidence

Defendant argues there was insufficient evidence

to support his convictions for perjury. We review the

evidence in alight most favorable to the judgment.

(Jackson v. Virginia, supra, 443 U.S. at p. 319; Taylor v.

Stainer, supra, 31 F.3d at pp. 908-909; People v. Marshall

(1997) 15 Cal.4th 1, 34; People v. Barnes, supra, 42

Cal.3d at p. 303.) Our sole function is to determine if any

rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.

(Jackson v. Virginia, supra, 443 U.S. at p. 319; People v.

Marshall, supra, 15 Cal.4th at p. 34; People v. Ochoa

(1993) 6 Cal.4th 1199, 1206.) The standard of review is

the same in cases where the prosecution relies primarily

on circumstantial evidence. (People v. Bloom (1989) 48

Cal.3d 1194, 12U8; People v. Bean (1988) 46 Cal.3d 919,

932.)

Perjury involves a willful statement, under oath, of

any material matter which the witness knows to be false. (§

118; Cabe v. Superior Court (1998) 63 Cal.App.4th 732,

735: People v. Howard (1993) 17 Cal.App.4th 999. 1004.)

The Courts of Appeal have held: “It is the statement's

tendency to influence the trial which is of importance.

regardless of whether it did in fact have an influential result.”

(People v. Gamble (1970) 8 Cal.App.3d 142, 146; People

v. Darcy (1943) 59 Cal.App.2d 342, 349, overruled on

another point in Murgia v. Municipal Court (1975) 15

Cal.3d 286, 301, fn. 11; § 123.) Section 123 provides: "It is

no defense to a prosecution for perjury that the accused did

not know the materiality of the false statement made by him;

or that it did not, in fact, affect the proceeding in or for which

it was made. It is sufficient that it was material, and might

have been used to affect such proceeding." The Court of

Appeal has held, “False testimony even unrelated to an

issue but which has the tendency to impeach the credibility of

A-19

a witness who testified on a material issue may be

perjurious.” (People v. Gamble, supra, 8 Cal.App.3d at p.

146; see also People v. Barry (1883) 63 Cal. 62, 64.) Perjury

may be committed even though it does not affect the outcome

of the proceedings. (People v. Gillard (1997) 57 Cal.App.4th

136, 158; People v. Gamble, supra, 8 Cal.App.4th at p. 146.)

The relevant evidence was as follows. Defendant

appeared as a witness offering opinion testimony based upon

special skill, knowledge, training, and experience as the

treating physician in the Lopez matter regarding the

injuries suffered by two of his patients in an automobile

accident.. Defendant testified in that case that his medical

specialty following his residency was in orthopedic surgery

and physical medicine. In fact, defendant's residency was in

physical medicine and rehabilitation. Four board certified

specialists in orthopedic surgery testified defendant was not

appropriately trained in that specialty. Further, they testified

defendant could not honestly state his specialty was in

orthopedic surgery. A board certified specialist in physical

medicine and rehabilitation gave similar testimony. Count 1

charged defendant with perjury for his false representation

that he was a specialist in orthopedic surgery. The jury could

reasonably conclude defendant's testimony was material to

the outcome of the Lopez case because it related to his ability

to convince the jury that his testimony was credible regarding

the plaintiffs' alleged injuries. Defendant further testified in

the Lopez case that he had one office location on October 9,

1989, and at the time of his testimony. Testimony and

numerous exhibits revealed that defendant had six or more

office locations from which he practiced medicine. Count

2 charged defendant with perjury as a result of his false

testimony under oath regarding the number of office

locations he had. The jury could reasonably conclude this

false testimony was material to the outcome of the Lopez

trial because it affected the jury's perception of

defendant's qualifications. An adverse inference may be

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drawn from a physician's use of many offices. If a

physician works out of several offices, it may appear that

he handles numerous personal injury or worker's

compensation cases only for purposes of lawsuits. On the

other hand, if he has only one office, the inference may be

drawn that the physician operates an ordinary medical

practice. The foregoing falsehoods had a tendency to

enhance the credibility of defendant. Further, Judge

Altman's testimony constituted substantial evidence as to

both of these matters.

Defendant's conviction in count 4 related to his

answer to a written interrogatory in a lawsuit brought by

Dr. Dirk Kancilia against defendant for fraud, breach of

contract, and a request for an accounting. The

interrogatory requested the name, address, and highest

grade of each school defendant attended as well as dates of

attendance and degree attained. Defendant responded that

he graduated from the "American University School of

Medicine, Florida 1979-1980 MDJ[.]" In fact, defendant

graduated from the American University of the Caribbean

School of Medicine. The jurors could conclude

defendant's interrogatory answer was material to the

outcome of that case because it went to his credibility

both as a party to the lawsuit and as a physician in

business with Dr. Kancilia. Substantial evidence supports

the judgment. The false interrogatory answers, which

could enhance defendant's credibility and stature, might

have been used to affect the proceeding. (§ 123; see

People v. Kobrin, supra, 11 Cal.4th at p. 420.)

E. Defendant's Requested Instruction

Regarding Ambiguous Questions

Defendant argues the trial court should have given

the special instruction on ambiguous questions and answers

as proposed by defense counsel. The instruction read: “It is

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the prosecution's burden to establish beyond a reasonable

doubt that the declarations or answers by the defendant

were in fact false. [{] If you should find that a particular

question is ambiguous -- that is, subject to more than one

interpretation -- and that the defendant truthfully answered

one interpretation of the question, then such answer would

not be false. Similarly, if you should find that the question

was clear but the answer ambiguous, and one interpretation

of the answer would be truthful, then such answer would

not be false. [{] In deciding whether the defendant's answers

are false, the answers must be given their meaning in the

context in which the words were used. If you find that an

answer given by the defendant was literally true, but

unresponsive to the question asked, you may not tind that

answer false. As long as his statement, or an interpretation

of his statement, is narrowly or literally true, there can be no

conviction for perjury. This is so even if you find that the

answer was intentionally misleading.”

A trial court is obliged to instruct, even without a

request, on the general principles of law which relate to the

issues presented by the evidence (§§ 1093, subd. (f), 1127;

People v. Turner (1990) 50 Cal.3d 668, 690; People v.

Grant (1988) 45 Cal.3d 829, 847; People v. Melton (1988)

44 Cal.3d 713, 746; People v. Flannel (1979) 25 Cal.3d

668, 680-681.) When the evidence is minimal and

insubstantial, there is no duty to instruct. (People v. Barton

(1995) 12 Cal.4th 186. 196, fn. 5; People v. Banyan/ (1988)

45 Cal.3d 1189. 1232; People v. Flannel, supra. 25 Cal.3d

at p. 684; People v. Mayberry (1975) 15 Cal.3d 143, 151.)

Defendant argues that the proposed instruction was

necessary to inform the jurors that “an ambiguous question

and/or answer cannot be the basis of a perjury prosecution

because there is no showing of the element of falsity.” He

further argues the questions and answers related to the terms

“specialist;” offices “had” versus “practiced out of,” and the

name and address of his medical school as interpreted were

cai ane

A-22

central to the case. However, we find nothing ambiguous

in either the questions or answers related to the perjurious

conduct here. When asked what-his medical specialty was,

defendant, a physician who had previously testified as a

witness, answered “board certified in December 1988 by

the American Board of Orthopedic and Neurological

Surgery.” Defendant further testified that his medical

specialty was “physical medicine and orthopedic surgery.”

None of this was true. When asked how many office

locations he had at the time he testified in the Lopez case

and on October 9, 1989, defendant answered, "One." As

noted previously herein, the evidence presented at trial

demonstrated that defendant had more than one office

location. The evidence indicated defendant also practiced

out of more than one office location. Finally, the question

in the interrogatory could not have been more clear in

requesting the name and address of each academic

institution defendant attended along with the dates of

attendance, highest grade level, and degree received.

Defendant's answer, on the other hand, was false.

ee

This case is distinguishable from the recent case of

Cabe v. Superior Court, supra. 63 Cal.App.4th at page 740.

In Cabe, when asked on voir dire whether “‘[a]nybody in

your immediate family or yourself have been arrested?’” a

prospective juror responded that one of his sons had been

arrested. He neglected to add that he had also been

arrested. (Ibid. orig. italics.) Relying on Bronston v. United

States (1973) 409 U.S. 352, 355, and Jn re Rosoto (1974)

10 Cal.3d 939, 949, our colleagues in Division Two of this

court determined that because the witness's answer was

partially unresponsive but literally true it could not be the

source of a perjury charge. (Cabe v. Superior Court, supra,

63 Cal.App.4th at pp. 740-743.) Here, other jury

instructions, based in part on the Bronston and Rosoto

cases, adequately informed the jury that they must consider:

as honest mistake and belief in the truth of the answers

A-23

given; the context in which the questions were asked and

answers were given; the fact that an answer which was

literally true though misleading or unresponsive may not

form the basis of a perjury conviction; and the witness

need not volunteer more explicit information unless asked

or required to do so.° The jury's finding of not guilty on

count 3 is demonstrative of the fact that the jury understood

these instructions.® As a result, defendant suffered no

prejudice as a result of the trial court's refusal to give the

proposed instruction. Finally, we find it is not reasonably

probable that a result more favorable to defendant would

: The jury was instructed with CALJIC No. 7.24 as

follows: “Perjury requires that the statement be made willfully by

a person who knows that the statement is being made under oath

or penalty of perjury and who knows or believes that the statement

is false. [§]] A statement made under an honest mistake and in a

belief that it is true is not perjury even though the statement is

false. [{] The word ‘willfully’ simply means a purpose or

willingness to commit the act or make the omission referred to.”

The jury was also instructed with an instruction on

literal truth as follows: “In evaluating the questions and answers

upon which charges of perjury are based, you may consider the

entire context in which the questions are asked and the answers

given, including other questions and answers given during the

testimony. [{]] However a perjury conviction may not be based

upon an answer which is literally true although misleading or

unresponsive. A witness is not required to volunteer more

explicit information unless asked or required to do so.”

: Count 3 charged defendant with perjury regarding his

testimony in the Lopez case that he graduated from Cornell

Medical School. The transcript read: “‘Q. And would you

indicate where you went to medical school, sir? [J] A. I went to

medical school at Cornell University Medical College, New

York. [{] Q. Did you graduate, sir? [{] A. I graduated in 1980.

({] Q. And you got a degree and graduated? [J] A. Yes.’” The

jury apparently found defendant's answer literally true in the

context of the question as asked.

A-24

have been reached absent any error in failing to so instruct.

(People v. Scheid, supra, 16 Cal.4th at p. 21; People v.

Watson (1956) 46 Cal.2d 818, 836.)

F. Instruction To View Defendants Admissions With

Caution

Defendant argues the trial court should not have

instructed the jury to view his admissions with caution

pursuant to CALJIC No. 2.71’ because the his statements

were -read to the jury as recorded in a tal transcript and

as answer to an interrogatory. The Attorney General

concedes, and we agree, that whenever a defendant s

statements are recorded the cautionary part of the

instruction need not be given. (People v. Hines (1964) 61

Cal.2d 164, 173, overruled on other grounds in People v.

Murtishaw (1981) 29 Cal.3d 733, 774-775, fn. 40; People

v. Gardner (1961) 195 Cal.App.2d 829, 832.) However,

we disagree with defendant that the instruction was either

tantamount to telling the jury to view his exculpatory

testimony with caution or that it resulted in prejudice. The

instruction was never utilized in argument to apply to any

exculpatory evidence. Defendant did not testify. The error

was harmless. (Chapman v. California (1967) 386 U.S. 18,

CALJIC No. 2.71 was given as follows: “An admission

is a statement made by the defendant other than at his trial

which does not by itself acknowledge his guilt of the crimes for

which such defendant is on trial, but which statement tends to

prove his guilt when considered with the rest of the evidence.

[{] You are the exclusive judges as to whether the defendant

made an admission, and if so, whether such statement is true in

whole or in part. If you should find that the defendant did not

make the statement, you must reject it. If you find that it is true

in whole or in part, you may consider that pan which you find to

be true. [¥] [Evidence of an oral admission of the defendant

should be viewed with caution.]”

A-25

22; People v. Watson, supra, 46 Cal.2d at pp. 836-837.)

Whether considered individually or for their cumulative

effect, any of the errors alleged did not affect the truth-

finding process or accrue to defendant's detriment. (People

v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo

(1993) 6 Cal.4th 585, 637.)

G. Delivery Element of Count Four

Defendant argues the court's failure to instruct the

jury on the element of delivery of the perjury charge

related to the declaration in count 4 is federal

constitutional error, which should be reversed.® We

disagree that reversal is in order. Count 4 was based upon

defendant's answer to an interrogatory in the Kancilia case,

requesting the name and address of academic institutions,

including dates attended and degree attained. Defendant

was a party in the Kancilia case. Defendant argues he did

not concede delivery and it was not a mere “peripheral

issue.” He argues the trial evidence on the delivery issue

was “weak based on the ‘custom and practice’ of the civil

attorney's office which sent the declaration to Dr.

Kancilia's attorney.” Defendant relies upon People v.

Griffith (1998) 65 Cal.App.4th 581, 587, which held the

mere making of a declaration is insufficient to constitute

perjury. The declaration must be delivered to someone

with the intent that it be published as true. (Jd. at p. 587.)

However, we disagree with defendant's conclusion

that the failure to instruct on the element of delivery of the

declaration is reversible per se in this case. The

: Section 124 provides in pertinent part: “The making

of a deposition,... is deemed to be complete... from the

time when it is delivered by the accused to any other

person, with the intent that it be uttered or published as

true.”

A-26

instructional error here was a trial rather than a structural

error. (California v. Roy (1996) 519 U.S. 2, [117 S.Ct. 337,

338-339]; Pope v. Illinois (1987) 481 U.S. 497, 503-504,

fn. 7; People v. Flood (1998) 18 Cal.4th 470, 503.) Hence

we apply the Chapman v. California, supra, 386 U.S. at

pages 22-23 standard of reversible error. The United States

Supreme Court has repeatedly noted that in conducting

Chapman harmless error analysis, we must evaluate the

“entire record....’’(Rose v. Clark (1986) 478 U.S. 570,

583; Delaware v. Van Arsdall (1986) 475 U.S. 673, 681.)

The initial step in Chapman analysis for a reviewing court is

as follows, “‘First, it must ask what evidence the jury

actually considered in reaching its verdict.’ (Yates v. Evatt

[(1991)} 500 U.S. [391,] 404 [].)... [A] reviewing court

‘must then weigh the probative force of that evidence as

against the probative force of the [erroneous instruction]

standing alone.’ (/bid.) In analyzing the prejudicial effect

of a constitutional instructional error, we may consider the

fact that the evidence and proof of guilt concerning the

omitted element is overwhelming, uncontradicted, or

dispositive. (Rose v. Clark, supra, 478 U.S. at p. 583 [];

Burger v. Kemp [(1987)] 483 U.S. [776,] 782-783, fn. 5

[].) Further, in conducting federal constitutional review,

the United States Supreme Court has held, ‘An omission,

or an incomplete instruction, is less likely to be prejudicial

than a misstatement of the law.’ (Henderson v. Kibbe

(1977) 431 U.S. 145, 155 [].) Finally, in Pope v. Illinois,

supra, 481 U.S. at page 503, footnote 6 [], the United

States Supreme Court indicated its prior holding in Rose /v.

Clark, supra, 478 U.S. at page 503] required on appeal a

review of the record be made to determine whether ‘the

facts - found by the jury were such that it is clear beyond a

reasonable doubt that if the jury had never heard the

impermissible instruction its verdict would have been the

same.’” (People v. Avila (1995) 35 Cal.App.4th 642,

662-663, fn. omitted; see Dickey v. Lewis (9th Cir. 1988)

A-27

859 F.2d 1365, 1370; McKenzie vy. Risley (9th Cir. 1988)

842 F.2d 1525, 1530.)

There was no material dispute in the evidence

concerning whether the false interrogatory answers were

delivered. Mark Weubben, the attorney for Dr. Kancilia,

testified for the prosecution. Mr. Weubben testified as to

the service of the Judicial Council form interrogatories,

which were an exhibit during the trial. Mr. Weubben also

identified the answers to the interrogatories which contained

false information which- were likewise received as an

exhibit during the trial of the present case. Attached to the

- interrogatory answers is a verification under penalty of

perjury signed by defendant. The following testimony was

offered by Mr. Weubben: “Q At-some point in time, did

you receive in the mail the responses to those

interrogatories? [{] A Eventually, yes, I did.” Mr.

Weubben physically brought the interrogatory answers-

which had been served upon him to court with him. There

was no evidence introduced that the interrogatory answers

containing inaccurate information were not served.

Moreover, defense counsel's lengthy argument to the jurors

did not dispute that the interrogatory answers were in fact

served as testified to by Mr. Weubben. Under these

circumstances, the purported error was harmless beyond a

reasonable doubt. (U S. v. Rogers (11™ Cir. 1996) 94 F.3d

1519, 1526-1527; People v. Flood, supra, 18 Cal.4th at pp.

504-505.)

A-28

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P.J

We Concur:

Armstrong, J. Godoy Perez, J.

A-29

Second Appellate District, Division Five, No. B113514

S075587

IN THE SUPREME COURT OF CALIFORNIA

SUPREME COURT

FILED

THE PEOPLE, Respondent MAR 9 1999

V. Robert Wandruff Clerk

DEPUTY

[Stamp]

EDMUND Y. CHEIN, APPELLANT

Appellant’s petition for review DENIED

GEORGE

Chief Justice

A-30

Filed

Clerk, U.S. District Court

MAY 23 2001

CENTERAL DISTRICT OF CALIFORNIA

BY MC DEPUTY

[Stamp]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

EDMUND Y. CHIEN ) Case No. CV 99-05296 (AN)

)

Petitioner, )

) REPORT AND

v. ) RECOMMENDATION OF

) UNITED STATES

RICHARD SHUMSKY, ) MAGISTRATE JUDGE

)

)

)

Respondent.

This Report and Recommendation is submitted to the

Honorable Audrey B. Collins, United States District Judge,

pursuant to 28 U.S.C. 4 636 and General Order 194 of the

United States District Court for the Central District of

California. For the reasons set forth below, the Magistrate

Judge recommends that the Petition for Wnt of Habeas

Corpus be denied and that this action be dismissed with

prejudice.

ee Serre

ee eEeeeEeEeEeEeEEE

A-31

I. BACKGROUND

A. Underlying Conviction

On December 23, 1996, petitioner Edmund Y. Chein

was convicted in Los Angeles Superior Court on three

counts of perjury in violation of California Penal Code §

118. [Clerk's Transcript [“C.T.”) at 772-80.] That

conviction arose from testimony petitioner gave in two civil

cases in 1590 and 1992. [Id ]

The first case was Lopez v. Consolidated

Freightways, Los Angeles County Superior Court Case No.

WEC 105580 (“the Lopez case”), presided over by the

Honorable Robert Altman. [C.T. at 774-80.] In that case,

Frank and Sandra Lopez had been injured when their

automobile was rear-ended by a vehicle driven by Joel

Frederick. [Reporter's Transcript ("R.T.") at 527.] Mr. and

Yrs. Lopez sued Frederick and his employer, Consolidated

~~ Freightways, for their injuries. [Id.] Petitioner was the

treating physician for the plaintiffs and testified on their

behalf. [R.T. at 533.] During the course of his testimony on

behalf of the Lopez plaintiffs, petitioner made two false

Statements. First, he testified that he was a specialist in

orthopedic surgery. [R.T. at 538-40, 46-47.1 Second,

petitioner testified that he practiced out of only one office.

[R.T. at 551-555.]

The second case in which petitioner allegedly

committed perjury was Kancilia v. Chein , Los Angeles

County Superior Court Case No. LC012300 ("the

K_anciilia case"). [C.T. at 772, 779-80.] In that

case, petitioner was being sued by his former partner, Dirk

Kancilia, after the dissolution of their partnership, for an

accounting of funds. [R.T. at 1024-26.] During the course of

that litigation, petitioner was served with a set of

interrogatories which asked him to identify, inter alia, the

A-32

name and address of each school he had attended.[R.T. at

1030.] As part of his response, petitioner gave the following

false answer: “American University School of Medicine,

Florida, 1979-1980, M.D.” [R.T. at 1031.]

Petitioner was convicted by jury of committing these

three acts of perjury. [C.T. at 772-801] He was sentenced to

3 years of supervised probation, 30 days in custody to be

served on weekends, 1,000 hours of community service, and

a $1,000 fine. [C.T. at 960.] The California Court of Appeal

affirmed the conviction on November 20, 1998.

[Respondent's Record E.] On March 9, 1999, the California

Supreme Court denied a petition for direct review. [Id.]

B. Present Petition

On May 19, 1599, petitioner filed, through counsel, a

Petition for Writ of Habeas Corpus by a Person in State

Custody pursuant to 28 U.S.C. § 2254. He seeks to challenge

his conviction on five grounds.

The first claim stems from the fact that the

prosecution's primary witness regarding the testimony

petitioner gave in the Lopez case was Judge Altman, the

jurist who presided. Petitioner argues that such testimony by

a sitting judicial officer was inappropriate and violative of

due process. [Petition at 6-10.] In Ground Two, petitioner

claims that the prosecutor committed misconduct through

statements she made during opening and closing arguments

and by the testimony she elicited from Judge Altman.

[Petition at 10-17.] In Ground Three, petitioner contends that

the evidence of perjury was insufficient to sustain the

conviction. [Petition at 17-21.] In Ground Four, petitioner

asserts he was denied due process when the trial court refused

to give a requested defense instruction informing the jury that

ambiguous questions or answers cannot form the basis for a

perjury conviction. [Petition at 21-22.] Finally, petitioner

SS

A-33

claims that the court erred by instructing the jury that

petitioner's testimony should be viewed with caution.

[Petition at 22.]

The Petition is supported by a set of Points and

Authorities (“Petition P&A”) filed concurrently with the

Petition. Respondent has filed his Return to Petition

(“Return”) and a supporting Points and Authorities in

Opposition to Petition ("Return P&A"). Respondent argues

that petitioner's various claims are unexhausted, procedurally

defaulted, do not state federal claims, and fail on their merits

even assuming they are federal claims. Petitioner has filed a

Traverse to Respondent's Return (“Traverse”), supported by a

set of Points and Authorities (“Traverse P&A”). The matter

now stands submitted.

Il. DISCUSSION

A. Standard of Review

The federal habeas statute prescribes the degree of

deference that must be accorded in federal habeas

proceedings to state court decisions which previously

addressed pending habeas claims, providing as follows:

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

A-34

(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 proceedings.

28 U.S.C. § 2254(d).

A state court decision is "contrary to" clearly

established federal law if the state court applies a rule that

contradicts the governing law set forth by the Supreme Court

or-if the state court confronts a set of facts that are materially

indistinguishable from those in a decision of the Supreme .

Court and nevertheless arrives at a different result. Williams

v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d

389 (2000). A state court decision involves an "unreasonable

application of" clearly established federal law if the state

court identifies the correct governing legal principle from the

decisions of the Supreme Court but unreasonably applies that

principle to the facts of the case. Id. at 407-08.

However, to find an unreasonable application of

Supreme Court precedent, a federal habeas court may not

conclude merely that the petitioner has the better of two

reasonable legal arguments. Van Tran v. Lindsey, 212 F.3d

1143, 1153-54 (9" Cir.), cert. denied, 121 S.Ct. 340 (2000).

Rather, the reviewing court must find that "clear error"

occurred. Id. That is, the court must be left with a firm

conviction that one answer, the one rejected by the state

court, was correct and the other, the application of federal

law that the state court adopted, was erroneous. Id.

Under the terms of the statute, the key to tnggering

this standard of review is a previous "adjudicat[ion] on the

merits in State court proceedings." Therefore, this Court must

apply §2254(d)'s deferential standard of review to the extent

petitioner's claims were addressed and disposed of on the

merits by the state courts.

A-35

B. Ground One: Testimony of Judge Altman

Petitioner first claims that the admission of Judge

Altman's testimony violated due process. [Petition at 6-10.]

Respondent argues that this claim is unexhausted,

procedurally defaulted, does not state a federal claim, and

fails on its merits in any event. [Return at 3-13; Return P&A

at 17-21.]

1. Exhaustion/Procedural Default

Exhaustion and procedural default are related but

distinct doctrines within federal habeas corpus jurisprudence.

Batchelor v. Cupp, 693 F.2d 859, 861 (9th Cir. 1982), cert.

denied, 463 U.S. 1212, 103 S.Ct. 3547, 77 L.Ed.2d 1395

(1983). Under the exhaustion doctrine, a state prisoner must

first give the highest state court an opportunity to rule on the

merits of his claims before he presents them to a federal

court. Id. at 862. Procedural default, by contrast, asks not

whether a prisoner has exhausted his claims but whether he

has done so properly, fairly presenting his claims to the state

courts and giving them a genuine opportunity to reach the

merits of his contentions. O'Sullivan v. Boerckel, 526 U.S.

838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Batchelor

693 F.2d at 862.

Both doctrines stem from the same basic principle of

federalism that federal courts should accord due respect to

the role of state courts in enforcing constitutional rights.

Batchelor, 693 F.2d at 861-62. However, procedural default

protects the integrity of the exhaustion rule. O'Sullivan, 526

U.S. at 848. Without the procedural default doctrine, a

petitioner could evade the exhaustion requirement by, for

example, letting the time run on his state remedies. Id. Thus,

under the procedural default rule, when a petitioner has failed

to comply with reasonable state procedures in presenting a

federal claim to the state courts, and the state courts have

A-36

declined to reach the merits of the claim as a result of this

failure, the federal courts, as a matter of comity, must decline

to reach the merits of the claim as well. Jackson v. Cupp, 693

F.2d 867, 869 (9th Cir. 1982).

In this case, respondent argues that petitioner did not

exhaust his claim regarding Judge Altman's testimony

because he presented this claim to the California courts as a

state law claim rather than a federal due process claim.

[Return at 4; Return P&A at 18-19.] However, as petitioner

contends [Traverse at 3-7; Traverse P&A at 11-14], the

record belies this assertion. Petitioner presented his claim to

both the California Court of Appeal and the California

Supreme Court as a federal due process claim. [Respondent's

Record D at 1; Respondent's Record F at 6-8.] Indeed, the

Court of Appeal. expressly recognized that petitioner was

raising a federal claim. [Respondent's 161 Record E, Part 1,

at 4-5.] A federal court must find that exhaustion has been

satisfied where a petitioner has presented his claim to the

highest state court. Jackson, 693 F.2d at 669. Petitioner has

done so here.

However, respondent argues in the alternative that

even if petitioner's claim is exhausted, it has been

procedurally defaulted. [Return at 4; Return P&A at 19.] This

argument is more persuasive. As discussed above, under the

doctrine of procedural default, when a state court denies a

challenge to a criminal conviction for failure to comply with

a state procedural rule, a federal court is precluded from

reviewing the claim in the context of a subsequent federal

habeas proceeding. Ylst v. Nunnemaker, 501 U.S. 797, 801,

111 S.Ct. 2590, 28 115 L.Ed.2d 706 (1991). In order for

procedural default to apply, the state court's denial of the

claim must rest on a state law ground that is independent of

the federal question and adequate to support the judgment.

Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546,

115 L.Ed.2d 640 (1991). For a state law ground to be

Aiinlacienic siete MET:

A-37

"independent," it must not be interwoven with federal law.

La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). For

a state law ground to be "adequate," it must be strictly or

regularly followed and consistently applied. Id.

In order to determine whether a procedural default

has occurred, this Court must examine the basis of the

relevant state court judgment. Coleman. 501 U.S. at 739. As

noted, petitioner raised before the California Court of Appeal

his due process challenge to the admission of Judge Altman's

testimony. [Respondent's Record D at 1.] In its Opinion

denying petitioner's appeal, the Court of Appeal ruled that

petitioner could not raise any constitutional objections

concerning Judge Altman's testimony because any

“constitutional contentions concerning the propriety of Judge

Altman's testimony have been waived, forfeited, and

procedurally defaulted." [Respondent's Record E, Fart 1, at 4-

5.] This finding is clear on its face, indicating a procedural

default of petitioner's claim.

Petitioner subsequently raised his constitutional

claim in his Petition for Review to the California Supreme

Court. [Respondent's Record F at 6-8.] The state high court

denied the Petition without discussion Or citation.

[Respondent's Record E, Part 2.] Where there

has been one reasoned state court judgment rejecting a

federal claim, later unexplained orders upholding that

judgment or rejecting the same claim are presumed to rest

upon the same ground. Yist, 501 U.S. at 803. Therefore, the

California Supreme Court, in effect, affirmed the ruling of

the Court of Appeal, and petitioner's due process challenge to

Judge Altman's testimony was found procedurally defaulted

by the California appellate courts.

However, petitioner makes a number of arguments in

Opposition to a finding of procedural default. First, petitioner

contends that the particular procedural bar asserted by the

A-38

State court was not independent and adequate. [Petition P&A

at 17-19; Traverse at 7.] In its Opinion, the Court of Appeal

ruled "that defendant may not raise any constitutional

objections on appeal concerning Judge Altman's testimony. . .

because defendant never raised them before the trial judge."

[Respondent's Record E, Part 1, at 4.] The court noted that, in

California, "constitutional objections must be interposed

before the trial judge in order to preserve such contentions for

appeal." [Id.] The court found that petitioner had not done so

and, on that basis, ruled that his constitutional challenge to

Judge Altman's testimony had been waived. [Id. at 4-5.]

The procedural rule invoked by the Court of Appeal

clearly is "independent" in that it is not interwoven with

federal law, and indeed petitioner does not contest its

independence. Rather, petitioner argues that the rule is not

"adequate" because it is not strictly or regularly followed and

consistently applied by the California state courts. [Petition

P&A at 17-19; Traverse at 7.] This argument simply is not

supported by the case law.

The California courts regularly follow and

consistently apply the rule that a constitutional objection to

the admission of testimony mast be raised at trial. See People

v. Barnett, 17 Cal.4th 1044, 1119 n.54, 74 Cal.Rptr.2d 121,

cert. denied, 525 U.S. 1044, 119 S.Ct. 598, 142 L.Ed.2d 539

(1998); People v. Jackson, 13 Cal.4th 1164, 1214 n.6, 56

Cal.Rptr.2d 49 (1596), cert. denied, 520 U.S. 1216, 117 S.Ct.

1705, 137 L.Ed.2d 830 (1997); People v. Rodrigues, 8 —

Cal.4th 1060, 1116 n.20, 36 Cal.Rptr.2d 235 (1994), cert.

denied, 516 U.S. 851, 116 S.Ct. 147, 133 L.Ed.2d 93 (1995);

People v. Ashmus, 54 Cal.3d 932, 972 n.10, 2 Cal.Rptr.2d

112 (1991), cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121

L.Ed.2d 79 (1992); People v. Benson, 52 Cal.3d 754, 788,

276 Cal.Rptr. 827 (1990), cert. denied, 502 U.S. 924, 112

S.Ct. 336, 116 L.Ed.2d 277 (1991). Furthermore, the Ninth

Circuit has recognized that California's "contemporaneous

ee

A-39

objection" rule for challenging the admission of testimony is

an independent and adequate ground which will support a

procedural default. Bonin v. Calderon, 59 F.3d 815,842-43

(9th Cir. 1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 718,

133 L.Ed.2d 671 (1996).

Petitioner next argues that even if the rule invoked

was independent and adequate, it was misapplied in this case

because defense counsel did in fact make constitutional

objections to Judge Altman's testimony. [Petition P&A at 15-

17; Traverse P&A at 14-17.] This argument fails for two

reasons.

First, as the federal courts have uniformly held, we

are bound to respect a state court's finding of procedural

default under its own laws. See Harris v. Reed, 489 U.S. 255,

264 n.10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Agan v.

Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997), cert. denied,

523 U.S. 1023, 118 S.Ct. 1305, 140 L.Ed.2d 470(1998);

Ashe v. Styles, 39 F.3d 80, 85 (4th Cir. 1994); Bobo v. Kolb

969 F.2d 391, 399 (7th Cir. 1992); Tacho v. Martinez, 862

F.2d 1376, 1379 n.3 (9th Cir. 1988). Federal courts do not sit

to correct errors made by state courts in the interpretation and

application of state law. Bobo, 969 F.2d at 399. State courts

are the final arbiters of state law, and federal courts may not

second-guess them on such ratters. Agan, 119 F.3d at 1549.

Furthermore, even assuming this Court was

empowered to review the accuracy of the state courts’ finding

of procedural default in this case, that finding would have to

be upheld. Petitioner's challenge to Judge Altman's testimony

is that the admission of this testimony violated petitioner's

rights under the Due Process Clause of the United States

Constitution. [Petition at 6.] The California Court of Appeal

specifically found that this precise claim was not asserted at

trial. [Respondent's Record E, Part 1, at 4-5.] That finding of

fact is presumed to be correct unless petitioner rebuts the

A-40

presumption by clear and convincing evidence. 28 U.S.C. §

2254(e) (1). Petitioner cannot do so here.

Petitioner's federal due process claim, expressly

framed as such, simply was never raised in the trial court,

despite petitioner's vociferous arguments to the contrary.

Petitioner contends, for example, that defense counsel

challenged Judge Altman's testimony by motion in limine

prior to trial. [Petition PRA at 16; Traverse P&A at 15.]

However, the motion in limine argued that Judge Altman's

testimony was irrelevant and prejudicial under the California

Evidence Code — it made no mention of due process. [C.T.

at 816-26.] The California courts do not recognize state law

violations as being necessarily violations of federal

constitutional due process. Ashmus, 54 Cal.3d at 985 n.15. In

particular, the state courts treat evidentiary challenges under

the Evidence Code as separate and distinct from

constitutional evidentiary challenges. People v. Lucas, 12

Cal.4th 415, 462, 48 Cal.Rptr.2d 525 (1995), cert. denied,

519 U.S. 838, 117 S.Ct. 114, 136 L.Ed.2d 66 (1996).

Petitioner next argues that trial counsel made a

motion for mistrial at the conclusion of Judge Altmans

testimony. [Petition P&A at 16; Traverse P&A at 16-17.] In

particular, petitioner points out that defense counsel

challenged Judge Altman's testimony on the grounds that it

amounted to "judicial misconduct," that it was "prejudicial,"

and that it was "so egregious that it denies the defendant a

fair trial. So it's plain error." [Petition P&A at 16, citing to

R.T. at 646, 650, 654.] Again, no mention was made of

petitioner's due process rights under the Constitution.

In order to alert a state court to the federal

nature of a given claim, at the very least a petitioner must

refer to a specific federal constitutional guarantee in

connection with that claim. Gray v. Netherland, 518 U.S.

152, 162-63, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996).

A-41

Petitioner's counsel has made it eminently clear that he

disagrees with this rule in the extreme, characterizing it as a

requirement that trial counsel utter "a precisely worded

incantation in the form of a prolix objection" [Petition at 4

n.4], and likening it to a formulation of the notorious

chancery courts in Charles Dickens's Bleak House [Traverse

P&A at 1-2]. Counsel's disgust notwithstanding, this rule is

the. law. If a defendant wishes to claim that the evidentiary

ruling of a trial court denied him the due process of law

guaranteed. by the Fourteenth Amendment, he must

expressly characterize his claim as such in the state court.

Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 130

L.Ed.2d 865 (1995). Petitioner failed to do so here.

Petitioner also relies on the fact that trial counsel filed

a motion for new trial in which he argued that Judge Altman's

tesimony “effectively depriv[ed] the defendant of the U.S.

Constitutional night to a jury trial," and resulted in an "unfair

trial." [Petition P&A at 16-17, citing C.T. at 899, 910.] It is

unlikely that such arguments effectively preserved an

evidentiary challenge for appeal. See People v. Williams, 16

Cal.4th 153, 254, 66 Cal.Rptr.2d 123 (1997) (new trial

motion does not preserve issue where contemporaneous

objection is required), cert. denied, 522 U.S. 1150, 118 S.Ct.

1169, 140 L.Ed.2d 179 (1998); Lucas, 12 Cal.4th at 462

(evidentiary challenge raised in new trial motion “came too

late"). In any event, such arguments did not expressly invoke

the Due Process Clause of the Fourteenth Amendment.

Based on the record, petitioner cannot rebut with clear

and convincing evidence the finding of the California Court

of Appeal that he did not properly challenge Judge Altman's

testimony in the trial court on federal due process grounds.

Accordingly, this Court must find that petitioner's claim has

been procedurally defaulted.

A-42

Petitioner's final argument in _ opposition § to

enforcement of the procedural default is that his claim, even

if procedurally defaulted, should be heard under the cause

and prejudice exception. [Petition P&A at 19-20.] A

petitioner can obtain federal review of a procedurally

defaulted claim if he can show "cause and prejudice."

Coleman, 501 U.S. at 750. "Cause" is a legitimate excuse for

the default. Magby v. Wawrzaszek 741 F.2d 240, 244 (9th

Cir. 1984). "Prejudice" is actual harm resulting from the

alleged constitutional violation. Id.

In this case, petitioner claims that the cause for his

default was ineffective assistance of counsel — that is, trial

counsel rendered deficient performance by failing to raise a

constitutional objection to Judge Altman's testimony.

[Petition P&A at 19-20.] Trial counsel's failure to preserve a

claim for review in state court will suffice for cause where

the failure was so serious a lapse as to amount to ineffective

assistance of counsel in violation of the Sixth Amendment.

Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587,

146 L.Ed.2d 518 (2000). However, the exhaustion doctrine

"retuires that a claim of ineffective assistance be presented to

the state courts as an independent claim before it may be used

to establish cause for a procedural default." Murray v.

Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d

297 (1986) (emphasis added). Petitioner did not exhaust his

ineffective assistance claim in this case.

Petitioner protests that he did raise his ineffective

assistance claim to both the Court of Appeal and the

California Supreme Court. [Traverse at 6-7.] However,

petitioner raised ineffective assistance before the Court of

Appeal only in his Reply Brief in a short, two-sentence aside

buried among his arguments challenging Judge Altman's

testimony. [Respondent's Record D at 20.] The issue received

similar treatment in the Petition for Review to the California

Supreme Court. [Respondent's Record F at 8.]

A-43

In neither brief was there any discussion or argument

in support of the ineffective assistance claim. Issues which

are only perfunctorily asserted without supporting argument

are not properly raised in the California appellate courts and

will not be addressed. Rodrigues, 8 Cal.4th at 1116 n.20;:

Ashmus, 54 Cal.3d at 985 n.15. In any event, petitioner

clearly did not raise his ineffective assistance argument to the

State courts as an independent claim. As such, the claim is

unexhausted and petitioner cannot rely upon it as cause for

his procedural default.

y & Merits of Petitioner’s Claim

Even assuming petitioner's challenge to Judge

Altman's testimony was not procedurally defaulted, the claim

would have to be denied on its merits. Despite respondent's

assertion to the contrary [Return at 3-4; Return P&A at 17-

18], this is a federal law claim. Petitioner clearly identifies

his claim as arising under the United States Constitution

[Petition at 6], and the federal courts do review challenges to

State court evidentiary rulings under a constitutional rubric.

See, e.g., Kealohapauole v. Shimoda, 800 F.2d 1463, 1465-

66 (9th Cir. 1966), cert. denied, 479 U.S. 1068, 107 S.Ct.

958, 93 L.Ed.2d 1006 (1987). However, even treated as a

federal law challenge, petitioner's claim fails.

A petitioner for federal habeas relief may challenge

an evidentiary ruling only on the grounds that it created an

absence of fundamental fairness which fatally infected the

trial. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9™ Cir.

1996). That is, the petitioner must show that the evidentiary

ruling rendered the trial so fundamentally unfair as to violate

due process. Windham v Merkle, 163 F.3d 1092, 1103 (9%

Cir. 1998). The admission of evidence violates due process

only when there are no permissible inferences the jury may

draw from the evidence. Id. The petitioner bears the burden

of overcoming the presumption that the evidentiary ruling

A-44

was correct and not violative of due process. Ortiz-Sandoval

81 F.3d at 897. Petitioner has not met his burden here.

Most of the arguments raised and authorities cited by

petitioner are simply irrelevant to this analysis. For example,

petitioner goes to great lengths to cite authority for the

proposition that it is structural, per-se-reversible error for a

case to be tried before a jurist who is not impartial. [Petition

P&A at 3-6.] Petitioner believes that having Judge Altman

testify for the prosecution was tantamount to having his case

presided over by a judicial officer with an interest in the case

and, indeed, virtually resulted in a directed verdict of guilty.

[Id.] This is the basis for petitioner's additional argument in

Ground One that Judge Altman's testimony, besides violating

the Due Process Clause, also violated petitioner's Sixth

Amendment night to a trial by jury. [Petition at 6, 10.]

This is simply a poor analogy. The fact of the matter

is that Judge Altman was not the presiding judge — he was a

witness. It was clear to the jury that his function was to give

testimony just like any other witness, and the tial court

instructed the jury to evaluate his credibility just like any

other witness. [R.T. at 1276-83.] Therefore, any claim that

Judge Altman's testimony created a structural defect in the

proceedings or somehow eliminated the role of the jury fails.

Judge Altman's testimony does not give rise to such a claim.

Similarly, petitioner raises a series of arguments

invoking the limitations under stats law on the ability of

judges to testify as witnesses. [Petition P&A at 6-12.] In

particular, petitioner places great reliance on Menrmitt v.

Reserve Insurance Co., 34 Cal.App.3d 858, 110 Cal.Rpt.

511 (1973), in which the California Court of Appeal held

that, under California state law, it is improper for a judge to

testify as an expert witness for one side in a civil trial

regarding matters that took place before him in his judicial

capacity. [Petition P&A at 6-7; Traverse P&A at 18.]

A-45

It should be noted that petitioner has misapplied state

law, as Merritt is distinguishable on the grounds that it was a

civil case. In fact, the California state courts have pointedly

declined to extend the rule of Merritt to criminal cases. See

People _v. Fatone, 165 Cal.App.3d 1164, 1183-84, 211

Cal.Rptr. 288 (1985). In any event, failure to comply with a

state's rules of evidence is neither a necessary nor sufficient

basis for granting federal habeas relief. Jammal v. Van de

Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Indeed, the

presence or absence of a state law violation is irrelevant. Id.

at 919-20. This Court may consider only whether the

admission of Judge Altman's testimony violated federal

constitutional norms. Id. at 919.

It is clear that the very fact that Judge Altman testified,

in and of itself, does not violate due process as there is no

constitutional proscription on judges testifying in criminal

matters. As one court has noted, "[t]he interests of justice

would be served poorly indeed by such a rule, and... no court

has even come close to adopting such a position." United

States v. Frankenthal, 582 F.2d 1102, 1108 (7th Cir. 1978).

Thus, the constitutional question turns on whether the

substance of Judge Altman's testimony was a proper matter

for the jury's consideration.

Petitioner, citing from the record, has compiled an

extensive list of statements made by Judge Altman which

petitioner characterizes as unfairly prejudicial. [Petition at 7-

10; Petition P&A at 12-14; Traverse at 1 1-17.] Many of these

statements were wholly innocuous, as they were merely

descriptive of the proceedings in the Lopez case. For

example, petitioner complains that Judge Altman made the

following remarks:

e That he "removed the case from the jury."

[R.T. at 576.]

A-46

e That defense counsel in the Lopez case "was

trying to show that Dr. Chein was not the kind

of person that he was portraying himself to the

jury, that he did not have credibility and

shouldn't be believed... [and] that the doctor

didn't have any real experience in orthopedic

surgery and the jury shouldn't necessarily

accept what he had to say." [R.T. at 548-49. ]

e That defense counsel in the Lopez case "was

using the deposition in this other case to try to

impeach Dr. Chein to show that Dr. Chein was

not telling the truth when he said he had one

location." That defense counsel was "using’a

prior statement of Dr. Chein to try to show

that his current statement was a lie." [R.T. at

557-58.]

e That defense counsel in the Lopez case "was

trying to point out how he had misled the

jury." [R.T. at 572.] That defense counsel

"asked these questions to try to show that this

was a lie." [R.T. at 575.]

e That "later on on cross-examination when he

was caught, he indicated that he hadn't done

any surgery." [R.T. at 601.]

Petitioner further complains about the following

statements by Judge Altman, which petitioner characterizes

as gratuitous expressions of opinion:

e "I was definitely upset. There's no question I

was upset about — when I found out what was

going on... I was upset about what I thought

was going on, yes." [R.T. at 625.]

A-47

That petitioner's testimony in the Lopez case

"offended" him. [R.T. at 626.]

In responding to a hypothetical question about

whether a witness tells the truth any less on

cross-examination than on direct, Judge

Altman responded, "Well, he's not supposed

to. But obviously when a witness realizes that

he's been caught because somebody has

information which completely contradicts

what the witness has said, the witness tends to

start to waffle, to change, whatever. It's hard

to keep to a story when the wrong evidence is

there that you've lied." [R.T. at 581-82.]

In responding to a question as to whether he

referred the perjury case to the District

Attorney because of his personal feelings,

Judge Altman responded, "Absolutely not. If

you want me to indicate why I referred it to

the D. A., I will be happy to tell you at great

length." [R.T. at 596.]

When defense counsel] objected to a long,

ongoing answer by Judge Altman as being a

narrative, Judge Altman responded, "I'll finish

it," and proceeded to conclude his answer in

three more sentences. [R.T. at 544.]

When asked if he had any question whether

petitioner had properly obtained a particular

medical _ certification, Judge Altman

responded, "Do I? Yeah, I really do. Do I have

any question as to how he obtained it? Did he

get a piece of paper? Yes. Do I have any

question as to what he did to get the piece of

A-48

paper? Yeah, I've got questions." [R.T. at

594.]

e When asked if it was illegal to belong to a

particular certifying organization, Judge

Altman responded, "I don't know the answer,

if it's illegal or not. I can tell you about it

again if you want to know." [R.T. at 627.]

e Judge Altman described the board which

certified petitioner as a "phony board." [R.T.

at 545.]

e When asked about the significance of a doctor

having multiple offices, Judge Altman

responded, "[A]t some point, the argument is

or the image is that the doctor runs a PI mill

and that the doctor isn't [sic] just in medicine

just making money and that the doctor is

handling all personal injuries and workmen's

compensation and then churning cases through

the courtroom. That's the image that the

lawyer was trying to bring out as to Dr. Chein.

That's why the number of locations is material

to the qualifications of the doctor." [R.T. at

555-56. ]

Assuming that such statements could be deemed

prejudicial, prejudice, in and of itself, does not violate due

process. The critical inquiry is whether the statements in

question rendered the entire trial fundamentally unfair, and

clearly these statements did not.

In any event, petitioner's claim is not that individual

statements made by Judge Altman should have been culled

out and removed from the jury's consideration. Rather, his

claim is that Judge Altman's testimony, taken as a whole, was

A-49

inadmissible. Therefore, petitioner must show that Judge

Altman's testimony, in its totality, gave rise to no permissible

inferences. Jammal, 926 F.2d at 520. He has made no such

showing here and, indeed, cannot.

Judge Altman's testimony was highly relevant in this

case in order to prove the elements of the offense. Under

California law, in order to prove perjury, the prosecution

must show that the defendant made a willful statement under

math of a material matter which the defendant knew to be

false. People _v. Trotter, 71 Cal.App.4th 436, 439, 83

Cal.Rptr.2d 753 (1999). In this case, Judge Altman, as the

presiding judge in the Lopez case, was well suited to testify

as to what petitioner said under oath and why those

statements were material; and, indeed, that was precisely the

substance of Judge Altman's testimony.

In his testimony, Judge Altman first described the

background of the Lopez case in order to place petitioner's

testimony in context. [R.T. at 527-30.] Judge Altman then

specifically described the testimony petitioner gave.[R.T. at

531-33, 537-40, 546-47, 548, 549-50, 551-555.] Judge

Altman confirmed that petitioner gave his testimony under

oath. [R.T. at 535-36.] Finally, Judge Altman explained why

petitioner's testimony was material. [R.T. at 533-34, 540-46,

547-48, 548-49, 550, 555-59.]

Evidence does not violate due process where it is

relevant to some fact of consequence and gives rise to some

permissible inference. Windham, 163 F.3d at 1104. Here,

Judge Altman's testimony was highly relevant to proving the

elements of the offense, giving rise to the inference that

petitioner had given materially false statements under oath.

As such, there was no due process violation in the admission

of Judge Altman's testimony.

A-50

| On Ground Two: Prosecutorial Misconduct

Petitioner next claims that the prosecutor committed

unconstitutional misconduct during the course of the trial.

Specifically, petitioner complains that the prosecutor implied,

through statements made in front of the jury, that the Lopez

case was in fact an insurance scam. [Petition at 10-17;

Petition P&A at 23-29.] As with Ground One, respondent

argues that this claim is unexhausted, procedurally defaulted,

does not state a federal claim, and fails on its merits in any

event. [Return at 13-17; Return P&A at 21-25.]

Re Exhaustion/Procedural Default

Respondent argues that petitioner did not exhaust his

claim of prosecutorial misconduct because he presented this

claim to the California courts as a state law claim rather than

a federal due process claim. [Return at 13-14; Return P&A

at 22.] However, as petitioner contends [Traverse at 17-18;

Traverse P&A at 19-20], this argument fails. Petitioner

presented his claim to both the California Court of Appeal

and the California Supreme Court as a federal due process

claim. [Respondent's Record D at 1; Respondent's Record F

at 15.] Indeed, the Court of Appeal expressly recognized that

petitioner was raising a federal claim. [Respondent's Record

E, Part 1, at 12.] Petitioner has presented his claim to the

highest state court and, as such, has exhausted his claim of

prosecutorial misconduct.

Respondent argues in the alternative that petitioner's

claim is procedurally defaulted. [Return at 14; Return P&A at

22-23.] The record supports this argument. In its Opinion

denying the prosecutorial misconduct claim, the Court of

Appeal ruled that this contention of constitutional error was

not the basis of an objection in the trial court and thus is the

subject of waiver, forfeiture, and procedural default."

[Respondent's Record E, Part 1, at 12.]

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This finding, which clearly indicates a procedural

default, is based on an independent and adequate state law

ground. The rule in California is that the appellate courts will

not entertain a claim of prosecutorial misconduct unless the

claim has been preserved by means of a contemporaneous

objection at trial. People v. Price, 1 Cal.4th 324, 447, 3

Cal.Rptr.2d 106 (1991), cert. denied, 506 U.S. 851, 113 S.Ct.

152, 121 L.Ed.2d 102 (1992). This rule is independent in that

it is not interwoven with federal law. Furthermore, the

contemporaneous objection requirement is adequate as it is

regularly followed and consistently applied. See People v.

Coddington, 23 Cal.4th 529, 595, 97 Cal.Rptr.2d 528 (2000)

(collecting cases), cert. denied, 121 S.Ct. 1199 (2001).

It is true, as petitioner asserts [Petition P&A at 23],

that the Court of Appeal, after finding a waiver, went on to

address the merits of the federal prosecutorial misconduct

claim in an alternative holding. [Respondent's Record E, Part

1, at 15-16.] However, this does not negate the default. The

adequate and independent state ground doctrine requires a

federal court to honor a state holding that is a sufficient basis

for the judgment even where the state court also relies on

federal law in an alternative holding. Harris, 489 U.S. at 264

n.10. Thus, the Court of Appeal found that the federal

prosecutorial misconduct claim was procedurally defaulted.

This finding was affirmed by the California Supreme Court

in its silent denial of petitioner's application for review.

[Respondent's Record E, Part 2.]

In opposition to the enforcement of the procedural

default, petitioner argues that the Court of Appeal's finding

of waiver was erroneous because his trial counsel did in fact

rais¢ constitutional objections to the prosecutor's conduct,

both through oral objections during trial and through a new

tral motion after the verdict. [Petition P&A at 23; Traverse

P&A at 20-32.] However, the Court of Appeal's finding of

procedural default was a ruling of state law which this Court

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must respect. Harris, 489 U.S. at 264 n.10; Agan, 119 F.3d at

1549; Ashe, 39 F.3d at 85; Bobo, 969 F.2d at 399; Tacho,

862 F.2d at 1379 n.3.

Furthermore, a review of the record supports the

Court of Appeal's ruling. Petitioner's trial counsel never

expressly premised his objections to the prosecutor's conduct

on federal constitutional grounds. ([R.T. at 441, 442, 450,

468, 473, 477-84, 1246, 1303, 1238-43; C.T. at 896-911.]

Accordingly, petitioner cannot rebut the state court's factual

finding — that there was no constitutional objection at trial

— with clear and convincing evidence.-28 U.S.C. § 2254(e)

(1).

Petitioner also argues that, even assuming his claim

was procedurally defaulted, this Court should entertain the

claim under the "cause and prejudice" exception.

Specifically, petitioner asserts, as with Ground One, that if

his trial attorney failed to preserve the constitutional claim by

raising proper objections, then such failure constitutes

ineffective assistance of counsel. [Traverse P&A at 32-33.]

However, such an argument is unexhausted as petitioner did

not raise an ineffective assistance claim in conjunction with

his prosecutorial misconduct claim, in even a cursory

fashion, at any time during the California state appellate

proceedings. [Respondent's Record B at 37-48; Respondent's

Record D at 22-27; Respondent's Record F at 15-20.]

In addition, petitioner asserts that his claim should be

heard via the "miscarriage of justice" exception. [Traverse

P&A at 33.] Besides the "cause and prejudice" exception, a

petitioner may secure review of a procedurally defaulted

claim if he can show that his conviction resulted in a

fundamental miscarriage of justice. Coleman, 501 U.S. at

750.

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However, the miscarriage of justice exception applies

only to the "extraordinary instances when a constitutional

violation probably has caused the conviction of one innocent

of the crime." McCleskey v. Zant, 499 U.S. 467, 494, 111

S.Ct. 1454, 113 L.Ed.2d 517 (1991). Thus, the exception is

concerned with actual, as opposed to /egal, innocence.

Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489,

150 L.Ed.2d 728 (1998). To be credible, a claim of actual

innocence must be supported by new, reliable evidence —

such as exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence — that was

not presented at tnal. Schlup v. Delo, 513 U.S. 298, 324, 115

S.Ct. 851, 130 L.Ed.2d 808 (1995). Petitioner offers no

such evidence here. Accordingly, his claim of prosecutorial

misconduct has been procedurally defaulted, and there are no

exceptions permitting review.

2. Merits of Petitioner’s Claim

Even assuming petitioner's claim of prosecutorial

misconduct was not procedurally defaulted, the claim would

have to be denied on its merits. Despite respondent's

assertion to the contrary [Return at 13; Return P&A at 21-

22], this is federal law claim. Petitioner clearly identifies his

claim as arising under the Due Process Clause [Petition at

10], and the federal courts do review claims of prosecutorial

misconduct under a constitutional standard. See, e.g., Nguyen

v. Lindsey, 232 F.3d 1236, 1240-41 (9th Cir. 2000).

However, even treated as a federal law challenge, petitioner's

claim fails.

The prosecutorial misconduct claim revolves around

certain statements made by the prosecutor at trial. Based on

the record in this case, it appears that one of the contentions

of the defense in the Lopez case was that the Lopez plaintiffs'

claims of injury were fraudulent and that the entire case was

an insurance scam. [R.T. at 441-42.] At a number of points

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during opening and closing statements, the prosecutor started

to allude to the fact that fraud was an issue in the Lopez tal.

[R.T. at 437, 440-41, 442, 450, 1245, 1246, 1248.] For the

most part, each time the prosecutor made such a reference,

defense counsel objected and the court sustained the

objection. [R.T. at 437, 441, 442, 450, 1246.] However,

petitioner now asserts that the prosecutor's repeated attempts

to interject the issue of fraud into this trial amounted to

unconstitutional prosecutorial misconduct.

A prosecutor has a duty to refrain from using

improper methods to procure a conviction. U.S. v. Hill, 953 -

F.2d 452, 458 (9 Cir. 1991). The prosecutor's job is not just

to win, but to win fairly, staying within the rules. U.S. v.

Kojayan, 8 F.3d 1315, 1323 (9" Cir. 1993). Where a

prosecutor obtains a conviction by over-stepping those rules,

the conviction is subject to challenge based on prosecutonal

misconduct. Id. However, to warrant relief, the

misconduct must have been so egregious as to have infected

the trial fatally, rendering it fundamentally unfair and

denying the petitioner due process. Duckett v. Godinez, 67

F.3d 734, 743 (9™ Cir. 1995), cert. denied, 517 U.S. 1158,

116 S.Ct. 1549, 134 L.Ed.2d 651 (1996).

The Court should note that petitioner's claim relies, in

part, on the assertion that the prosecutor elicited from Judge

Altman inadmissible testimony to the effect that the Lopez

plaintiffs' claims were fraudulent. [Petition at 14; Petition

P&A at 26.] However, petitioner provides no citations to the

record in support of this allegation, and an independent

review of the record indicates that in fact there are none.

Indeed, the only time Judge Altman alluded to the fact that

fraud was an issue in the Lopez case was in response to

questioning by petitioner's counsel on cross-examunation.

[R.T. at 589-90.] The prosecutor never elicited any such

testimony. Thus, petitioner's claim must rely on these few,

isolated incidents in opening and closing arguments when the

A-55

prosecutor alluded to the fraud issue in the Lopez trial. Those

statements do not support a finding of prosecutorial

misconduct.

Improper comments by the prosecutor in the presence

of the jury may constitute prosecutorial misconduct. Darden

v. Wainwright, 477 U.S. 168, 179-80, 106 S.Ct. 2464, 91

L.Ed.2d 144 (1986). However, in order for a habeas

petitioner to be entitled to relief, it is not enough that the

prosecutor's remarks were undesirable or even universally

condemned. Id. at 181. The standard of review for

prosecutorial misconduct in federal habeas cases is the

narrow one of due process, not the broad exercise of

supervisory power. Drayden v. White, 232 F.3d 704, 713 (9th

Cir. 2000), cert. denied, 121 S.Ct. 1630 (2001). Thus, the

determinative inquiry is whether the prosecutor's remarks so

infected the trial with unfairness as to make the resulting

conviction a denial of due process. Darden, 477 U.S. at 181.

In determining that question, it is appropriate to

consider whether the jury received any limiting instructions

or other guidance from the court. Furman v. Wood, 190 F.3d

1002, 1006 (9th Cir. 1999). Here the jury received a great

deal of guidance from the court. To begin with, nearly every

time the prosecutor mentioned the issue of fraud in

connection with the Lopez tral, defense counsel objected and

the court sustained the objection with an admonishment to

counsel. [R.T. at 437, 441, 442, 450, 1246.] Coupled with its

general instruction to the jury to disregard stricken matters

[R.T. at 431, 1272], these admonishments of counsel

effectively neutralized any damage the prosecutor's

statements might have done. United States v. Weitzenhoff,

35 F.3d 1275, 1291 (Sth Cir. 1993), cert. denied, 513 U.S.

1128, 115 S.Ct. 939, 130 L.Ed.2d 884 (1995).

A-56

The court also gave the following curative instruction,

limiting the jury's consideration of the prosecutor's comments

regarding fraud:

Also, yesterday, during the course of the

opening statements, you heard mention of the

words "fraud" and "set-up automobile

accident,” and this case does not involve your

contemplation of any of these issues and you

are to disregard and treat as though you had

never heard any mention of any of those

items.

[R.T. at 491.] Such curative instructions, as with prompt

admonishments of counsel, are also deemed to negate any

prejudice created by improper statements by the prosecutor.

Weitzenhoff, 35 F.3d at 1291.

In addition, this Court must consider whether the

trial court instructed the jury to decide the case solely on the

basis of the evidence rather than on counsel's argument.

Furman, 199 F.3d at 1006. Such instructions were given in

this case. [R.T. at 428, 430, 435, 1269, 1271, 1272.] This

Court must presume that the jury followed these

instructions, thereby mitigating the feet of any misconduct.

Drayden, 232 F.3d at 713.

Besides intervention by the trial judge, this Court

must also consider whether the evidence against petitioner

was strong. Furman, 150 F.3d at 1006. As will be discussed

at greater length below, the evidence of guilt in this case was

indeed strong. The statements given by petitioner under oath

were demonstrably false and clearly material to the

proceedings in which they were given. The strength of this

evidence substantially reduced the likelihood that the jury's

decision was influenced by the statements of the prosecutor.

Darden 477 US. at 182.

A-57

Finally, the Court should note that it must view

petitioner's claim of prosecutorial misconduct in the context

of the entire trial. Weitzenhoff, 35 F.3d at 1291. In this

regard, it is particularly relevant that petitioner's own

counsel elicited from Judge Altman the following testimony

to the effect that the Lopez plaintiffs were suspected of

perpetuating a fraud:

Q: So now, in the Lopez case, there

was no actual surgery that took place, is there?

A: Future surgery was recommended

by Dr. Chein

Q: Right. So the dispute was between

an orthopedic doctor, Dr. Chein, and an

orthopedic surgeon as to whether or not this

person needed surgery, right?

A: There was dispute as to whether the

actual condition ever existed, whether it was a

real condition or completely false condition. It

was never disputed as to need for surgery. The

defense position was the man had no injuries.

Q: Well, that was the issues that was

presented, isn’t that right?

A: That was —

Q: The defense took the position there

was never any injury, right?

A: No injury.

A-58

Q: And doctor — and the plaintiffs

took the position there ~vas injury that called

for surgery, right?

A: Yes.

Q: So that was the dispute, nght?

A: The dispute was more basic. Now,

you are oversimplifying it. There’s a question

when someone has an injury as to whether or

not the proper treatment is surgery or

something else. The defense position was that

this was completely made-up situation, that

there was no injury whatsoever, that there was

not even a consideration of surgery.

[R.T. at 589-90.] Therefore, any statements by the prosecutor

mentioning fraud cannot be deemed prejudicial given that

petitioner's counsel himself interjected the issue into the

proceedings through his questioning of Judge Altman.

Based on the foregoing, there can be no finding that

the prosecutor's comments rendered petitioner's trial so

fundamentally unfair as to deny him due process.

Accordingly, petitioner's claim of prosecutorial misconduct

must fail.

D. Ground Three: Sufficiency of Evidence

Petitioner's third contention is that the evidence

against him was insufficient to sustain the conviction on the

three perjury counts. [Petition at 17-21.] Respondent

concedes that this is a federal claim which has been

exhausted and has not been procedurally defaulted. [Return

P&A at 26.] Therefore, the only issue with respect to this

claim is whether it succeeds on its merits. It does not.

A-59

This claim was squarely raised before the California

courts as a federal law claim [Respondent's Record B at 48-

64; Respondent's Record F at 20-28], and the Court of

Appeal addressed the claim on federal law grounds rather

than an independent and adequate state law ground.

[Respondent's Record E, Part 1, at 16-18.] As such, the

standard of review delineated above applies and this Court

may not grant relief unless the state court's decision was

contrary to federal law, involved an unreasonable application

of federal, or was based on an unreasonable determination of

the facts. 28 U.S.C. 5 2254(d).

The Court of Appeal affirmed petitioner's conviction

on all three counts of perjury, denying petitioner's claim of

insufficiency of the evidence. [Respondent's Record E, Part

1, at 16-18.] With respect to each count of perjury, the court

found that petitioner had given testimony, under oath, which

clearly was demonstrated to be false. [Id.] The court further

found with respect to each count that petitioner's false

testimony was material to the outcome of the proceedings.

[Id.] Accordingly, the court concluded that “[{s]ubstantial

evidence supports the judgment.” [Id. at 18.] This finding

comports with federal law.

Federal law governing constitutional claims of

insufficiency of the evidence has been clearly established by

the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979). There the Court held that

in a challenge to a state criminal conviction brought under 28

U.S.C. § 2254, "the applicant is entitled to habeas corpus

relief if it is found that upon the record evidence adduced at

the trial no rational trier of fact could have found proof of

guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324.

The court's task is not to determine whether it believes that

the evidence at the trial established guilt beyond a reasonable

doubt. Id. at 318-19. Furthermore, the court must respect the

province of the jury to determine the credibility of witnesses,

A-60

resolve conflicts in the testimony, weigh the evidence, and to

draw reasonable inferences from proven facts. Id. at 319. In

addition, the court is not required to affirmatively rule cut

every hypothesis except that of guilt. Id. at 326. The role of

the habeas court is simply to determine whether, . after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

Id. at 319.

The Jackson standard must be applied with explicit

reference to the substantive elements of the criminal offense

as defined by state law. Id. at 324 n.16. Under California law,

in order to prove perjury, the prosecution must show that the

defendant made a willful statement under oath of a material

matter which the defendant knew to be false. Trotter, 71

Cal.App.4th at 439. A falsehood is “material” if it could

probably have influenced the outcome of the proceedings.

People v. Pierce, 66 Cal.2d 53, 61, 56 Cal.Rptr. 817 (1967). It

is no defense that the false statement did not in fact affect the

proceedings — it is sufficient that it might have affected the

proceedings. CAL. PENAL CODE § 123. Furthermore, a

statement need not be directly related to a central claim in the

case in order to be material. People v. Gamble, 8 Cal.App.3d

142, 146, 87 Cal.Rptr. 333 (1970). Testimony which impacts

the credibility of a witness may be material. Id. Substantial

evidence supports the elements of perjury in this case.

1. The “Specialty” Count

The basis for the first count of perjury of which

' petitioner was convicted was the following testimony given

in the Lopez case:

Q: And briefly, if you would explain to

the jury what the difference is between an

internship and a residency.

A-61

A: when one graduates from medical

school, they cannot obtain a license to practice

unless they have one year of internship in a

hospital. And after one finishes the one year of

internship, then they are entitled to get the

California State license. When one gets that

license, he's called a general practitioner or

family practitioner. He can practice medicine

but with no specialty. If a doctor wants to

specialize in a field, then they have to spend

another four to five years, depending on the

specialty, in a program called residency, in a

medical residency or specialty training

program. Then he goes out and practices as a

specialist.

Q: And did you receive your license to

practice medicine?

A: Yes.

Q: You received your specialty

qualifications?

A: Yes.

Q: What field was that specialty, sir?

A: Board certified in December 1988

by the American Board of Orthopedic and

Neurological Surgery.

Q: Then when the residency ends, am I

correct in layman's terms you are a regular

doctor, right?

A-62

A: No. You are a specialist.

Q: You were a specialist following

that —

A: Training period.

Q: — training period? And your

specialty, what would be the correct

designation?

A: Physical medicine and orthopedic

surgery.

[R.T. at 538-40, 546-47; C.T. at 775-76.]

This testimony was given under oath. [R.T. at 531-32,

535-36.] Furthermore, evidence produced at tial

demonstrated clearly that this testimony was false to the

extent petitioner identified himself as a specialist in

orthopedic surgery.

In order to designate himself as a "specialist," a

doctor must complete a particular residency which is geared

toward that specialty. [R.T. at 765,522.] Indeed,

petitioner himself indicated, in his testimony at the Lopez

trial, that in order to be called a "specialist" in a certain field

a doctor must spend four to five years in a residency program

for that particular specialty. [R.T. at 539.] Thus, in order for a

doctor to be called a "specialist" in orthopedic surgery, he

must complete a four or five year orthopedic surgery

residency program. [R.T. at 751-52, 771-73, 781, 783, 818.]

Evidence adduced at trial clearly demonstrated that

petitioner does not have a specialty in orthopedic surgery. He

did not do a residency in orthopedic surgery.[R.T. at 789,

A-63

595.] Rather, he did his residency in physical medicine and

rehabilitation. [Respondent's Record A at 41-42; R.T. at 776,

815, 222.) A doctor who completes a residency in physical

medicine and rehabilitation is not entitled to call himself a

specialist in orthopedic surgery. [R.T. at 749-50, 783-84, 789,

797, 817, 858-60.] Three independent orthopedic surgeons,

after reviewing petitioner's credentials, testified that

petitioner is not a specialist in orthopedic surgery. [R.T. at

788- E9, 793-94, 891, 995.] In addition, Dr. Rene Cailliet,

the chairman of the Department of Physical Medicine and

Rehabilitation at the University of Southern California

Medir..1 School and the professor who directly supervised

petit .uwer's residency, testified that petitioner does not have

the proper training to call himself a specialist in orthopedic

surgery. [R.T. at 822, 838.]

Petitioner's misrepresentation that he had a specialty

in orthopedic surgery was material to the proceedings. In the

Lopez case, the plaintiffs were alleging that they suffered

from severe orthopedic conditions — thoracic outlet syndrome

and carpal tunnel syndrome — as a result of the accident and

that they required surgery. [R.T. at 543.] The severity of

these orthopedic conditions was highly contested during the

Lopez trial. [R.T. at 534, 589-90.] Petitioner testified on

behalf of the Lopez plaintiffs in support of their contention

that they suffered from ongoing injuries sustained in the

accident. [R.T. at 530, 533-34.] The defense in the Lopez

case countered petitioner's testimony with their own expert,

who was in fact certified in orthopedic surgery. The

competing testimony of the medical! experts was critical to

the jury's determination of damages. [R.T. at 534.] The jury's

assessment of each expert's credibility depended, in part, on

the doctor's credentials. [R.T. at 540-43, 560.] By

misrepresenting himself as a "specialist" in orthopedic

surgery, petitioner gave himself undue credibility in the eyes

A-64

of the jury in assessing the orthopedic condition of the Lopez

plaintiffs. [R.T. at 542-43, 547.]

Therefore, petitioner's testimony was given under oath, was

false and was material. Petitioner does not challenge that his

testimony was willful. Furthermore, by the very nature of the

testimony — petitioner's own specialty in medicine — there

is no question that petitioner knew the testimony to be false.

Petitioner does argue that his testimony was protected by the

First Amendment. [Petition P&A at 32-33.] However, there

is no constitutionally-protected nght to commit perjury.

United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57

L.Ed.2d 582 (1978). All of the elements of perjury were

amply supported with respect to the "specialty" count.

2. The “Offices” Count

The basis for the second count of perjury of which

petitioner was convicted was the following testimony given

in the Lopez case:

Q: Doctor, how many office locations

do you have now?

A: One

Q: How many did you have on

October 9th, 1989?

A: One.

[R.T. at 551; C.T. at 774.3]

_ This testimony was given under oath. [R.T. at 531-32,

535-36.] Furthermore, evidence produced at tral

demonstrated clearly that this testimony was false. As

various business records show, at the time of his testimony in

the Lopez case, petitioner in fact had offices in Van Nuys

A-65

[Respondent's Record A at 5, 16-22, 27-31; R.T. at 706-73],

Beverly Hills [Respondent's Record A at 10-11, 23, 25, 35,

37; R.T. at 708], Carson [Respondent's Record A at 12-15,

33, 44, 47, 65, 84, 86-93], and Southgate [Respondent's

Record A at 51, 54, 58]. In addition, petitioner had filed

fictitious business statements with the Los Angeles County

Clerk's Department for offices identified as the "Long Beach

Orthopedic Medical Group," the "Valley Orthopedic and

Neurological Medical Group,” the "Glendale Orthopedic and

Neurological Medical Group," the "Mission Hills Orthopedic

and Neurological Medical Group," and the "San Bernardino

Orthopedic and Neurological Medical Group." [R.T. at 707-

08.] Indeed, petitioner himself testified in a deposition prior

to the Lopez tal that he practiced out of offices in Beverly

Hills, Southgate, Carson, and Long Beach. [R.T. at 553-54.]

Petitioner's misrepresentation that he had only one

_ Office location was material to the proceedings. As Judge

Altman testified:

The question of how many offices a

doctor owns or runs is relevant to the kind of

practice that that doctor has. A doctor can

certainly have one office in Beverly Hills, a

doctor can have another office and maybe he's

busy- But at some point, the argument is or

the image is that the doctor runs a PI mill and

that the doctor isn't [sic] just in medicine just

making money and that the doctor is handling

all personal injuries and workmen's

compensation and then churning cases through

the courtroom.

[R-T. at 555-56.] Therefore, the number of offices petitioner

had was material to the jury's assessment of his credibility as

a doctor and medical expert.

ines:

ee

A-66

Petitioner's false testimony was given under

oath and was material. Again, petitioner's willfulness in

testifying and his knowledge of his testimony's falsity cannot

reasonably be disputed. The elements of perjury were

supported with respect to the "offices" count.

x The Interrogatory Count

The basis for the third count of perjury of which

petitioner was convicted was petitioner's answer to an

interrogatory in the Kancilia case. The particular

interrogatory in question directed petitioner to provide the

following information: ,

(a) the name and ADDRESS of

each school or other academic or vocational

institution you have attended beginning with

high school;

(b) the dates you attended;

(c) the highest grade level you

have completed;

(d) _ the degree received;

[C.T. at 772 Respondent's Record A at 96.] As part of his

‘response to this interrogatory, petitioner gave the following

answer:

7 American University of Medicine, Florida

1979-1980, M.D.

[C.T. at 772; Respondent's Record A at 107.]

The answer was given under oath. [Respondent's

Record A at 110.] Furthermore, petitioner's answer was

false. He did not receive his medical degree from the

"American University of Medicine, Florida." Rather, he

received his degree from the American University of the

A-67

Caribbean School of Medicine in Montserrat, West Indies.

[Respondent's Record A at 39, 113.]

Petitioner's false answer to the interrogatory was

material to the proceedings. The response led the other side

in the Kancilia case to believe that petitioner had attended a

university in Florida between 1979 and 1980 and that he

received his medical degree from such institution. [R.T. at

1031.] This was a significant distinction. Foreign medical

schools, particularly those located in third world countries,

are not highly regarded relative to American medical schools.

[R.T. at 861-62.] The medical school at the American

University of the Caribbean, in particular, does not have a

good reputation within the medical community. [R.T. at 860-

63.]

The background and professional credentials of

petitioner were relevant in the Kancilia case. Dr. Kancilia

was concerned that petitioner's background and professional

experience would negatively impact his own practice or

otherwise affect his business relationship with petitioner.

[R.T. at 1030-31, 1032, 1063.] By averring that he received

his medical degree from the "American University of

Medicine, Florida," and concealing that he in fact received

his degree from a school in the West Indies, petitioner

painted a more flattering portrait of his educational

background. [R.T. at 1062.] Furthermore, petitioner's failure

to answer the question correctly affected his credibility. [R.T.

at 1032, 1055, 1058, 1061, 1068.]

Thus, petitioner gave a false, material answer under

oath in his response to the interrogatory. Petitioner does not

contest that he answered the interrogatory willfully, nor does

he contend that he did not know that his answer — the medical

school where he received his degree — was false. Instead,

petitioner argues that the trial court failed to instruct the jury

on the element of delivery. [Petition P&A at 36-37.]

A-68

In a perjury prosecution where the perjury is

committed in a document, an element of the offense is that

the document be delivered by the defendant to another person

with the intent that it be uttered or published as true. CAL.

PENAL CODE § 124; People v Griffini, 65 Cal.App.4th 581, ©

76 Cal.Rptr.2d 590 (1998). In this case, the trial court did not

instruct the jury to find that petitioner "delivered" his

interrogatory answers. [See R.T. at 1291-92.] The Court of

Appeal conceded that no such instruction was given and

found that this was error on the part of the trial court.

[Respondent's Record E, Part 1, at 23.] However, the court

held that this error was harmless. [Id. at 23-25.] This holding

was not contrary to federal law.

The omission of an element of a crime from a jury

instruction is harmless error when the omitted element was

uncontested and supported by overwhelming evidence.

United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th

Cir. 2000). In this case, there was no dispute in the evidence

concerning whether the false interrogatory answer was

delivered. Mark Wuebben, counsel for Dr. Kancilia testified

that he received petitioner's responses to the interrogatories

by mail and, in fact, the responses themselves contain a proof

of service. [R.T. at 1028; Respondent's Record A at 111.] Mr.

Weubben physically brought the interrogatory responses he

received in the mail with him to court. [R.T. at 1028.] There

was no evidence introduced at trial that the interrogatory

responses were not in fact delivered, and defense counsel

never argued that the responses were not delivered. Hence, it

was harmless error for the tral court not to give an

instruction on delivery.

Based on the foregoing, there was ample evidence

produced at trial supporting each element of perjury for all

three counts of conviction. Thus, this Court cannot conclude

that no rational trier of fact could have found proof of guilt

beyond a reasonable doubt. The decision of the California

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State courts was not contrary to, or an unreasonable

application of, clearly established federal law; nor was it

based on an unreasonable determination of the facts in light

of the evidence presented at trial.

E. Grounds Four & Five: Instructional Errors

Finally, petitioner asserts that the trial court

misinstructed the jury in two respects. In Ground Four,

petitioner claims that the trial court erroneously failed to give

a requested defense instruction informing the jury that

ambiguous questions or answers cannot form the basis for a

perjury prosecution. [Petition at 21-22.] In Ground Five,

petitioner argues that the trial court erroneously instructed the

jury that petitioner's testimony should be viewed with

caution. [Petition at 22.] Respondent counters that these

claims are unexhausted, do not state a federal question, and

fail on the merits.

Respondent argues that the instructional claims are

unexhausted because petitioner presented these claims to the

California courts as state law claims rather than federal

claims. [Return at 31, 33; Retum P&A at 32-33, 35-36]

However, as petitioner contends [Traverse at 26-27, 29-30;

Traverse P&A at 38-39, 41-42], the record belles this

assertion. Petitioner cited to federal case law in support of his

instructional error claims before both the Court of Appeal

and the California Supreme Court. [Respondent's Record B at

64-67; Respondent's Record D at 36-37; Respondent's Record

F at 28-30.] Furthermore, as presented to this Court,

petitioner's jury instruction claims are federal law claims.

Petitioner cites to the Due Process Clause as the basis of both

claims, and the federal courts do apply due process analysis

to instructional errors. See, e.g., Patterson v. Gomez, 223

F.3d 959, 362-67 (9th Cir. 2000), cert. denied, 121 S.Ct. 644

(2001). Nevertheless, even treated as exhausted federal

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claims, petitioner's instructional error claims fail on their

merits.

1. Ground Four: Ambiguity Instruction

In Ground Four, petitioner complains that the

following instruction, although requested, was not given:

If you should find that a particular question is

ambiguous — that is, subject to more than one

interpretation -— and that the defendant

truthfully answered one interpretation of the

question, then such answer would not be false.

Similarly, if you should find that the question

was Clear but the answer ambiguous, and one

interpretation of the answer would be truthful,

then such answer would not be false.

[Petition at 21.] The Court of Appeal affirmed the trial court's

rejection of this instruction, finding that there was "nothing

ambiguous in either the questions or answers related to the

perjurious conduct here." [Respondent's Record E, Part 1, at

20.] The court further held that the jury instructions, taken as

a whole, adequately informed the jury of the elements of

perjury. [Id.] This ruling was not contrary to federal law.

A claim that a court erred in omitting an instruction

requires a showing that the error so infected the trial that the

resulting conviction violates due process. Henderson _v.

Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203

(1977). In such cases, the petitioner's burden is especially

heavy, as an omission is less likely to be prejudicial than an

affirmative misstatement of the law. Id. at 155. Furthermore,

in reviewing any alleged instructional error, the Court may

not assess the instruction in artificial isolation, but must view

it in the context of the instructions as a whole and the trial

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court record. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct.

475, 116 L.Ed.2d 385 (1991).

In this case, there is nothing in the record to support

petitioner's contention that either the questions asked of him,

or the answers he gave, were ambiguous. With regard to the

"specialty" count, petitioner was asked during the Lopez trial,

"And your specialty, what would be the correct designation?"

[R.T. at 547.] Petitioner answered directly, "Physical

medicine and orthopedic surgery." [Id.] Similarly, with

regard to the "offices" count, petitioner was asked, "Doctor,

how many office locations do you have now?... How many

did you have on October 9th, 1989?" [R.T. at 551.] To both

questions, petitioner answered, "One." [Id.] Finally, with

regard to the interrogatory count, petitioner was asked to

identify the name and address of the medical school he had

attended. [Respondent's Record A at 96.] In response,

petitioner falsely identified the "American University School

of Medicine" in Florida. [Respondent's Record A at 107.]

None of these questions or answers is even arguably

ambiguous. A defendant is entitled to have his theory of

defense presented in the jury instructions only if it is

supported by law and has some foundation in the evidence.

United States v Mason, 902 F.2d 1434, 1438 (9th Cir. 1990).

Here, nothing in the record supports petitioner's theory of

ambiguity.

Furthermore, a trial court's failure to give an

otherwise proper theory-of-the-defense instruction is not

erroneous if the instructions actually given, taken as a whole,

adequately encompass the defendant's theory. United States

v. Sarno, 73 F.3d 1470, 1485 (9th Cir. 1995), cert. denied,

518 U.S. 1020, 116 S.Ct. 2555, 135 L.Ed.2d 1073 (1996). In

this case, while the trial court did not give petitioner's

proposed ambiguity instruction, it did give the following

instructions on perjury generally:

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If the circumstantial evidence as to any

particular count is susceptible of two

reasonable interpretations, one of which points

to the defendant's guilt and the other to his

imnocence, you must adopt that interpretation

which points tothe defendant's innocence

and reject that interpretation which points to

his guilt. |

Perjury requires that the statement be

made willfully by a person who knows that

the statement is being made under oath under

penalty of perjury and who knows or believes

that the statement is false.

A statement made under an honest

mistake and in a belief that it is true is not

perjury even though the statement is false.

In evaluating the questions and

answers upon which charges of perjury are

based, you may consider the entire context in

which the questions are asked and the answers

given, including other questions and answers

given during the testimony. However, a

perjury conviction may not be based upon an

answer which is literally true although

misleading or unresponsive.

A witness is not required to volunteer

more explicit information unless asked or

required to do so.

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The specific intent with which an act is

done may be shown by the circumstances

surrounding the commission of the act.

- However, you may not find the defendant

guilty of the crimes charged unless the proved

circumstances are not only (1) consistent with

the theory that the defendant had the required

specific intent, but (2) cannot be reconciled

with any other rational conclusion.

Also, if the evidence as to any such

specific intent is susceptible of two reasonable

interpretations, one of which points to the

existence of the specific intent and the other to

the absence of the specific intent, you must

adopt that interpretation which points to the

absence of the specific intent.

[R.T. at 1275, 1293-95.]

Taken together, these instructions effectively directed

the jury how to consider any questions or answers that it

found ambiguous. Thus, even assuming that the questions

and/or answers were ambiguous, as petitioner contends, the

jury was adequately instructed to take this into account.

Therefore, petitioner's Ground Four fails.

a Ground Five: Oral Admissions of the

Defendant

In Ground Five, petitioner finds error in the trial

court's giving the following instruction:

Evidence of any oral admission of the

defendant should be viewed with caution.

[Petition at 22.] Petitioner asserts that this instruction

effectively directed the jury to view with suspicion

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explanatory statements he made in his testimony in the Lopez

trial — statements which, if properly considered, would have

undermined any finding that he intended to lie about his

specialty and the number of offices he had. [Petition P&A

at 39-40. ] |

In evaluating this claim, the Court of Appeal found

that the instruction was not necessary. [Respondent's Record

E, Part 1, at 22.] The instruction at issue, based on CALJIC

2.71, is a cautionary instruction which admonishes the jury

regarding its consideration of any incriminating statements

ascribed to the defendant by a witness at trial. People v. Frye,

18 Cal.4th 894, 959, 77 Cal.Rptr.2d 25 (1998), cert. denied,

526 U.S. 1023, 119 S.Ct. 1262, 143 L.Ed.2d 358 (1999). In

other words, the instruction protects a defendant against bias

or imperfect recall when admissions of the defendant are

admitted as unrecorded hearsay. Id. Here, where the

prosecution was based entirely on the recorded testimony of

petitioner in a previous trial, CALJIC 2.71 was not needed.

However, the Court of Appeal found that the instruction was

harmless as it did not direct the jury to view petitioner's

exculpatory testimony with caution. [Respondent's Record E,

Part 1, at 22.] This ruling complied with federal law.

To obtain relief based on a charge given to the jury, a

federal habeas petitioner must establish not merely that the

instruction was undesirable, erroneous, or even universally

condemned, but that it violated some constitutional right.

Cupp v. Naughten, 414 U.S. 141, 146, 95 S.Ct. 396, 38

L.Ed.2d 368 (1973). Thus, as with reviewing an omitted

instruction, the central inquiry is whether a given instruction

so infected the entire trial that the resulting conviction

violated due process. Id. at 147.

To appreciate the harmlessness of the trial court's

giving CALJIC 2.71, it must be viewed in context. The entire

instruction, as read to the jury, provided as follows:

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An admission is a statement made by

the defendant other than at his trial which does

not by itself acknowledge his guilt of the

crimes for which the defendant is on trial, but \

which statement tends to prove his guilt when

considered with the rest of the evidence. YJ

You are the exclusive judges as to

whether the defendant made an admission and,

if so, whether such statement is true in whole

or in part. If you should find that the

defendant did not make the statement, you

must reject it. If you find that it is true in

whole or in part, you may consider that part

which you find to be true.

Evidence of any oral admission of the

defendant should be viewed with caution.

However, no person may be convicted of a

criminal offense unless there is some proof of

each element of the crime independent of any

confession made by him outside of this trial.

[R.T. at 1280.] [Emphasis added. ]

Thus, contrary to petitioner's assertion, the instruction

did not direct the jury to be suspicious of any statements

made by the petitioner. By its own terms, CALJIC 2.71

applies only to those statements which tend to prove the

defendant's guilt. The instruction simply does not encompass

exculpatory statements and could not have been used against

petitioner in the manner he alleges. Accordingly, the trial

court did not violate due process in giving the instruction,

and the decision of the state court was not contrary to, or an

unreasonable application of, clearly established federal law.

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lil RECOMMENDATION

In accordance with the foregoing, IT IS

RECOMMENDED that the Court issue an order: (1)

approving and adopting this Report and Recommendation;

and (2) directing that judgment be entered dismissing the

Petition with prejudice.

Dated: May 22, 2001 [Signature]

ARTHUR NAKAZATO

A-77 Filed

Clerk, U.S. District Court

JUN 26 2001

CENTERAL DISTRICT OF CALIFORNIA

BY MC DEPUTY

[Stamp]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

EDMUND Y. CHIEN ) Case No. CV 99-05296 (AN)

)

Petitioner, )

) ORDER APPROVING AND

v. ) ADOPTING REPORT AND

) RECOMMENDATION

RICHARD SHUMSKY, ) OF UNITED STATES

) MAGISTRATE JUDGE

Respondent. )

Pursuant to 28 U.S.C. § 636, the Court has reviewed

the file, including the Magistrate Judge's Report and

Recommendation, de novo. IT IS ORDERED:

1. The Report and Recommendation is approved

and adopted.

a Judgment shall be _ entered

dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the clerk shall serve a copy

of this Order and the Judgment on all counsel or parties of

record.

DATED: June 25, 2001 [Signature]

AUDREY B. COLLINS

A-78

Filed

Clerk, U.S. District Court

JUN 26 2001

CENTERAL DISTRICT OF CALIFOR

BY MC DEPUTY

[Stamp]

UNITED STATES DISTRICT COURT

CENTERAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

EDMUND Y. CHIEN ) Case No. CV 99-05296 (AN)

)

Petitioner, )

) JUDGEMENT

v. )

)

RICHARD SHUMSKY, ._ )

)

)

Respondent.

IT IS HEREBY ADJUDGED that this action is

dismissed with prejudice for the reasons set forth in the

related Magistrates Judge’s Report and Recommendation.

Dated: June 24, 2001 [Signature]

AUDREY B. COLLINS

UNITED STATES DISTRICT JUDGE

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDMUND Y. CHEIN,

Petitioner-Appellant, No. 01-56320

V. D.C. No.

CV-99-05296-ABC

RICHARD SHUMSKY, Chief

Probation Officer LA County; OPINION

CALIFORNIA STATE ATTORNEY

GENERAL,

Respondent-Appellees.

Appeal from the United States District Court

For the Central District of California

Audrey B. Collins, District Court Judge, Presiding

Argued and Submitted

April 2, 2002 — Pasadena, California

Before: Ferdinand F. Fernandez, Jonnie B. Rawlinson,

Circuit Judges, and Edward F. Shea, District Judge.

Opinion by Judge Rawlinson;

Partial Concurrence and Partial Dissent by Judge Shea.

* The Honorable Edward F. Shea, United States District Judge for the

Eastern District of Washington, sitting by designation.

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COUNSEL

Charles M. Sevilla, Cleary & Sevilla, San Diego, California,

for the petitioner-appellant.

Brentford Ferrera (brief) and Matthew G. Monforton,

Deputy District Attorneys, Los Angeles, California, for the

real party in interest, State of California.

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OPINION

RAWLINSON, Circuit Judge:

Edmund Chein (“Chein”) appeals the district court’s denial

of his habeas petition filed pursuant to 28 U.S.C. § 2254,

challenging his conviction following a jury trial on three

counts of perjury.

Chein asserts that he was deprived of his due process rights

under law when: (1) the judge who presided over one of the

underlying civil trials testified in Chein’s perjury trial; and (2)

the prosecutor repeatedly referred to the facts of the underlying

case in violation of an express ruling by the court. Chein also

contends that there was insufficient evidence to support the

perjury convictions. Because Chein’s due process claims were

procedurally defaulted and there was sufficient evidence to

support a finding of perjury as to one of the statements, we

AFFIRM the district court’s dismissal of Chein’s habeas

petition.

I. Background

Chein faced perjury charges as a result of his testimony in a

personal injury trial and his response to an interrogatory in a

different civil case.

Count 1 of the Information charged Chein with testifying

falsely that “he was a specialist in orthopedic surgery.”

Chein’s specific testimony was this:

Q: Then when the residency ends, am I correct, in

layman’s terms, you’re a regular doctor; right?

A: No. You are a specialist.

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Q: You were a specialist following that —

A: Training period.

Q: —Training period? And your specialty, what

would be the correct designation?

A: Physical medicine and orthopedic surgery.

A: If a doctor wants to specialize in a field, then

they have to spend another four to five years,

depending on a specialty, in a program called

residency in a medical school affiliated hospital. And

upon finishing that residency or specialty training

program then he goes out and practices as a specialist.

Q: And did you receive your specialty

qualifications?

A: Yes.

Q: What field is that specialty, Sir?

A: I’m board certified in December 1988 in — by

the American Board of Orthopedic and Neurological

Surgery.

Count 2 charged that Chein committed perjury when he

testified that “he had one office location on October 9, 1989

and October 30, 1990 to November 2, 1990.” Chein testified

particularly as follows:

Q: Doctor, how many office locations do you

have now?

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A: One.

Q: How many did you have on October the 9th,

1989?

A: One.

These two counts stemmed from a personal injury trial

where Chein testified as a treating physician.

Count 4 of the Information charged that Chein committed

perjury when he testified “that he attended and received a

medical degree from American University School of Medicine

in Florida.”

Chein provided the following response to an interrogatory:

“State:

a) the name and address of each school or other

academic or vocational institution you have attended

beginning with high school;

b) the date you attended;

c) the highest grade level you have completed;

d) the degree received.”

Chein’s response was “American University School of

Medicine, Florida, 1979-1980 M.D.”

The judge who presided over the personal injury civil trial

testified during Chein’s perjury trial. Although Chein filed a

motion in limine prior to trial seeking exclusion of the judge as

a witness, Chein failed to object to the judge’s testimony at

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testimony at trial on the same basis (violation of due process)

that he now asserts on appeal.

Chein also objected to the prosecutor’s delving into the

facts of the underlying personal injury case. Despite the

court’s sustaining of Chein’s objection, the prosecutor made

several references to the facts of the underlying case. Chein

objected to the references on relevancy grounds.

Chein appealed to the California Court of Appeal, which

affirmed his conviction. The. California Supreme Court

denied Chein’s petition for review. Chein then filed the

federal habeas petition that is the subject of this appeal.

Il. Standard of Review

Our review of the district court’s decision to deny habeas

relief is de novo. Melendez v. Pliler, 288 F.3d 1120, 1124 (9®

Cir. 2002). The district court’s factual findings are reviewed

for clear error. Jd. Under the provisions of the Antiterrorism

and Effective Death Penalty Act of 1996, we will “grant

habeas relief to a person in state custody only if the decision

was based upon an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,

or the claimed constitutional error 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.” Jd. (citations omitted).'

' Because the California Supreme Court issued a summary denial of

Chein’s Petition for Review, we review the California Court of Appeal

decision as the last reasoned decision of the state courts. See Shackleford

v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).

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Ill. Discussion

A. Procedural Default

1. Testimony of the civil trial judge

Prior to the perjury trial, Chein filed a motion in limine

objecting to the judge’s appearance as a witness. Chein

challenged admission of the judge’s testimony on the bases of

relevance and prejudice. Chein proferred no due process

objection. In his motion for a new trial, Chein noted that

admission of the trial judge’s testimony resulted in an “unfair

trial.” However, Chein again failed to explicitly interpose a

due process objection.

The California Court of Appeal ruled that Chein’s

constitutional challenge to the judge’s testimony was “waived,

forfeited, and procedurally defaulted” because Chein never

raised constitutional objections before the judge presiding over

Chein’s perjury trial.

[1] In order to find Chein’s claim procedurally defaulted, we

must determine whether an “independent and adequate state

[procedural] ground” exists to support the state’s court

procedural bar. Bennett v. Mueller, 296 F.3d 752, 755 (9® Cir.

2002). To constitute an adequate procedural bar, a state court

procedural rule must be “clear, consistently applied, and well

established at the time of the petitioner’s purported default.”

Melendez v. Pliler, 288 F.3d at 1124 (citation omitted).

[2] We _ have previously ruled that California’s

“contemporaneous objection rule,” which requires objection at

time of trial to preserve an issue for appeal, is an adequate

procedural bar. See Hines v. Enomoto, 658 F.2d 667, 673 (9th

Cir. 1981). Our decision in Melendez v. Pliler is not to the

contrary. In that case, we simply recognized that “there are no

California cases holding that the [contemporaneous objection]

A-86

are no California cases holding that the [contemporaneous

objection] rule is applied consistently in situations in which

an objection is made but the trial court in its discretion

declines to consider it on the merits.” 288 F.3d at 1125

(emphasis in the original). In Chein’s case, the trial court

ruled on the merits of the objections made by Chein.

Unfortunately for Chein, his objections at the time of the

perjury trial did not include the due process challenge

presented on appeal. Chein’s failure to make a

contemporaneous due process objection to the testimony of

the trial judge bars pursuit of the due process challenge on -

appeal. The California Court of Appeal’s ruling to that effect

was not an unreasonable application of clearly established

Supreme Court precedent on procedural default. See Picard

v. Connor, 404 U.S. 270, 275-76 (1971) (finding that

exhaustion of state remedies requires that a petitioner assert

his constitutional claims in state court).

2. Prosecutor’s reference to the facts of the underlying

civil trial

Prior to the start of the perjury tal, the district court

referred to rulings it had made off the record. In seeking to

clarify the court’s prior rulings, Mr. Chein’s counsel stated:

“As I understand the ruling, it basically was that the

totality of the [personal injury] case, we are not going to

retry it here...”

The Court replied:

“T think we’re very clear on that.”

However, the prosecutor almost immediately delved into

the facts of the underlying case:

[Prosecutor]:

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the two occupants of the limousine alleged personal

injuries as a result of being rear-ended by the

Plymouth.

They sued the driver of the Plymouth and the

employer of the driver of the Plymouth . . . In that

personal injury lawsuit, there was testimony on

each side. Every issue was contested. In fact, the

very fact of whether or not the accident occurred

was contested.

[The Court]:

Please confine your remarks to the evidence of the

charges before the court. We’re not going to retry

the civil matter.

The prosecutor continued:

We will present to you evidence that this Defendant

lied because he was an expert witness, in quotes, so

to speak in the personal injury lawsuit that arose ©

from that accident. There were issues, many issues

in that lawsuit, and the [sic] were claiming resulted

from the accident the lawsuit was about. One of the

Plaintiffs testified as the first witness. After he

testified on direct examination, you’re going to

learn from testimony at this proceeding that the

defense attorney cross-examined him —

[Defense Counsel]:

Objection Your Honor. /t’s not relevant to this case.

(Emphasis Added).

A-88

Objection Your Honor. Jt’s not relevant to this

case.

(Emphasis Added).

[The Court]:

Counsel, we’re talking about trying another case.

The issue is, were these statements true, are they

true or not true. If you would confine your

opening statement to that.

[Prosecutor]:

Certainly.

We are going to present to you evidence that there

were other accidents that those plaintiffs were

involved in; . . . that the defense that was being

put on by the defense attorneys was that the entire

accident was a setup, a scam.

[Defense Counsel]:

Your Honor, I’m going to object. This has nothing

to do with this case.

[The Court]:

Sustained. Counsel, the complaint alleges

Statements of qualification, medical training and

background. That’s the issue.

[Prosecutor]:

A-89

Objection, Your Honor. That’s irrelevant.

[The Court]:

Counsel, we’ve already discussed this matter.

We’re not going to go into that area. That is not

going to be relevant in this case.

(Emphasis Added).

Following the completion of opening statements, defense

counsel expressed “concern” about the prosecution’s opening

statement. The court chastised the prosecutor and expressed its

inclination to instruct the jury to “disregard comments that this

case may involve a set-up accident and/or fraud.” The court

agreed with defense counsel that “in labeling the operation as

somehow fraudulent I think [sic] goes beyond the bounds of

what you need to prove . . . the truth of these charges. So it’s

probably not going to be relevant.” (Emphasis Added).

True to his expressed intentions, the court gave the

following curative instructive to the jury when court resumed

the following day:

. . . [Y]esterday, during the course of the

opening statements, you heard mention of the

words “fraud” and “set-up automobile

accident,” and this case does not involve your

contemplation of any of those issues and you

are to disregard and treat as though you had

never heard any mention of any of those

items.

Unfortunately, the prosecutor strayed from the judge’s

ruling yet again. During closing argument, the prosecutor made

the following statement:

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you had never heard any mention of any of

those items.

Unfortunately, the prosecutor strayed from the judge’s

ruling yet again. During closing argument, the prosecutor

made the following statement:

... If every case, every frivolous claim went to a

jury ... And wasn’t that in fact the defense in the

[personal injury] case, that the whole claim is

bogus

[Defense Counsel]:

Objection. I thought we had discussion about

this.

[The Court]:

We’re not trying the [personal injury] case

counsel

Once the jury retired, defense counsel] noted for the

record that “the problem [he] anticipated happened during the

closing argument .. .” The court responded that it

“admonished [the prosecutor] to move on.”

The jury instructions contained the following statements

of law pertinent to this claim:

1) [S]tatements made by the attorneys during the

trial are not evidence;

2) Do not consider for any purpose any offer

of evidence that is rejected by the court.

A-91

[3] As with his objection to the judge’s testimony, Chein

objected to the prosecutor’s comments only on the basis of

relevancy. As a result, Chein’s due process challenge as to the

prosecutorial misconduct assertion also falls victim to

California’s contemporaneous objection requirement. See

Hines, 658 F.2d at 673 (recognizing that a habeas petitioner’s

failure to comply with a state’s “contemporaneous objection”

requirement results in procedural default).

[4] Because Chein’s due process claims were procedurally

defaulted, we AFFIRM the district court’s denial of Chein’s

habeas petition on those grounds.

B. Sufficiency of the Evidence

There is sufficient evidence to support a conviction if,

construing the evidence in the light most favorable to the

prosecution, a reasonable juror could have found the essential

elements of the crime beyond a reasonable doubt. See United

States v. Yoshida, 303 F.3d 1145, 1149 (9th Cir. 2002).

[5] Perjury occurs when an individual provides an answer

to a question under oath, that is literally untrue, and not merely

“misleading by negative implication.” Bronston v. United

States, 409 U.S. 352, 353, 359-60 (1973).

We have recently interpreted Bronston to preclude a

perjury conviction if the allegedly perjurious answer is in

response to a question that is “excessively vague or

fundamentally ambiguous.” United States v. Culliton, 300 F.3d

1139, 1141 (9th Cir. 2002) (citations and internal quotation

marks omitted); see Chia v. Cambra, 281 F.3d 1032, 1037 (9th

Cir. 2002) (stating that Ninth Circuit case law may be

persuasive authority for determining what Supreme Court

precedent is clearly established).

A-92

We have recently interpreted Bronston to preclude a

perjury conviction if the allegedly perjurious answer is in

response to a question that is “excessively vague or

fundamentally ambiguous.” United States v. Culliton, 300

F.3d 1139, 1141 (9th Cir. 2002) (citations and internal

quotation marks omitted); see Chia v. Cambra, 281 F.3d

1032, 1037 (9th Cir. 2002) (stating that Ninth Circuit case

law may be persuasive authority for determining what

Supreme Court precedent is clearly established).

In contrast, “[i]f we determine that the questions were

only arguably ambiguous or not ambiguous at all,” the

perjury determination must be made by the jury. Culliton,

300 F.3d at 1141 (internal quotation marks omitted).

[6] The crime of perjury also contains a materiality

element, the absence of which precludes a finding of perjury.

See People v. Kobrin, 903 P.2d 1027, 1028 (Cal. 1995). With

those strictures in mind, we examine the three counts of

which Chein was convicted.

Count | of the Information charged Chein with testifying

falsely that “he was a specialist in orthopedic surgery.”

It is undisputed that Chein was board certified by the

American Board of Orthopedic and Neurological Surgery.

Although the relative credibility of Chein’s certifying board

was challenged, the fact of Chein’s certification rendered his

statement literally true, thereby precluding a finding of

perjury under Bronston.

Additionally, the prosecution’s witness conceded that

whether Chein could call himself a specialist in orthopedic

surgery was a matter of semantics. Specifically, according to

the prosecution witness, “[i]t would be okay to say, ‘I have

training in orthopedic surgery,’ but it would not be okay to ©

say, ‘I’m a specialist in orthopedic surgery .. .” ” Even

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you have on October 9th, 1989? To both questions, Chein

replied, “One.”

[7] Both questions were unambiguous, or at worst

“arguably ambiguous,” making it appropriate to leave the

perjury determination to the jury. See Culliton, 300 F.3d at

1141 (citations omitted). Additionally, the number of Chein’s

office locations was material to his credibility as a treating

physician in a personal injury case. A physician who operates

out of a number of office locations is subject to the assertion

that he functions as a “personal injury mill” rather than as a

legitimate practitioner. See Louis J. Papa & Anthony Basile,

No-Fault Insurance Fraud: An Overview, 17 Touro L. Rev.

611, 613 (2001) (referring to medical practitioners as potential

participants in the “personal injury mill”).

The evidence offered to prove the falsity of Chein’s testimony

on the number of his office locations was taken from Chein’s

deposition dated October 9, 1989. On that date, Chein gave the

following testimony regarding his office locations: .

Q: Do you practice out of any other location at the

present time?

A: Yes.

Q: What other locations?

A: I have a Southgate location, a Carson location

and a Long Beach location.

[8] Viewing the evidence in the light most favorable to the

prosecution, a reasonable juror could conclude that Chein’s

testimony at trial that he only had one office location was

materially false. See People v. Post, 114 Cal. Rptr. 2d 356,

361, 365 (Cal. Ct. App. 2001) (reviewing the evidence that was

before the jury in order to determine whether a perjury

conviction was supported by sufficient evidence); Kobrin, 903

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Q: What other locations?

A: I have a Southgate location, a Carson

location and a Long Beach location.

[8] Viewing the evidence in the light most favorable to

the prosecution, a reasonable juror could conclude that

Chein’s testimony at trial that he only had one office location

was materially false. See People v. Post, 114 Cal. Rptr. 2d

356, 361, 365 (Cal. Ct. App. 2001) (reviewing the evidence

that was before the jury in order to determine whether a

perjury conviction was supported by sufficient evidence);

Kobrin, 903 P.2d at 1031 (holding that the determination of

materiality in perjury cases is a question of fact to be decided

by the jury).

Count 4 of the Information charged Chein with falsely

responding to an Interrogatory by averring that the medical

school he attended was in Florida, when in fact the medical

schoo] was sited in the Caribbean. Chein responded that the

schools’ mailing address was in Florida and, therefore, his

response was literally true. We need not determine whether

Chein’s statement was literally true, however, because even

if false, the statement lacks materiality. This statement was

made in the context of a contractual dispute between Chein

and an associate regarding accounting practices in connection

with patient files. There is no evidence in the record that the

location of Chein’s medical school was material to any of the

issues in the case. Absent materiality, there is insufficient

evidence to support a perjury conviction. See Kobrin, 903

P.2d at 1028.

IV. Ineffective Assistance of Counsel Claim

We agree with the district court that Chein’s brief

references to ineffective assistance in his Reply Brief to the

California Court of Appeal and Petition for Review to the

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[9] Viewing the evidence in the light most favorable to the

prosecution, there was sufficient evidence to support only the

perjury count set forth in Count 2 of the Indictment, which

charged that Chein testified falsely regarding the number of

office locations he had. Nevertheless, the existence of one

sustainable perjury count renders Chein’s conviction valid. See

United States v. Barron, 172 F.3d 1153, 1160 (9th Cir.1999).”

The state court’s decision affirming Chein’s conviction was not

an unreasonable application of clearly established Supreme

Court precedent. Accordingly, we AFFIRM the district court’s

dismissal of Chein’s habeas petition.

AFFIRMED.

? There was no suggestion in the record or during oral argument that

Chein’s sentence would have been different if he had only been convicted

on one of the perjury counts.

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SHEA, District Judge, Dissenting in part and concurring in

part:

For Defendant Chein’s claims of insufficiency of

evidence to sustain his conviction, I concur with the majority

. that the trial evidence as to Counts | and 4 was insufficient to

support convictions for perjury. However, I dissent from the

majority’s view of the sufficiency of the evidence on Count 2

and would reverse the district court’s denial of Chein’s

petition for a writ of habeas corpus and remand to the district

court with instructions to enter judgment granting a writ of

habeas corpus directing the release from custody of Chein.

This is surely the more desirable result for Dr. Chein but I

find it necessary to also dissent on the following issue which

would result in his being given a new tnal, though one

without a sitting judge testifying as an expert for the

prosecution.

For Defendant Chein’s claims of due process violation —

permitting a sitting Superior Court judge to testify as an

expert for the prosecution in a criminal case and the

misconduct of the prosecutor — I would reverse the finding

of procedural default, and remand to the district court with

instructions to enter a judgment granting a conditional Wnit

of Habeas Corpus directing the release of Chein unless the

State of California begins trial proceedings within 120 days

of the issuance of the mandate.

I. DISCUSSION

It is unnecessary to recite a background of the case as it is

fairly set out in the majority opinion. However, it may help

with an understanding of the history of this case to note that

Dr. Chein was called as a medical expert and treating

physician by the plaintiff in a state court personal injury case.

The judge presiding at that tial was so impressed by the

cross examination of Dr. Chein that he took the case from the

ve

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issue of whether or not to charge Dr. Chein with perjury. CT

356, quoting from the personal injury trial at RT 206. The

record does not provide any information as to whether the

referring judge volunteered to be an expert witness on the issue

of materiality of the targeted testimony or whether the county

prosecutor requested him to do so. Regardless, he was called

by the prosecution and over the objection of the defendant, was

permitted to testify.

This dissent will discuss the two issues in reverse order

beginning with the issue of procedural default.

A. Procedural Default

Moving directly then to the issue of procedural default, to

sustain a finding of procedural default, the waiver of a

constitutional claim must be based on independent and

adequate state law grounds. Specifically, federal courts “will

not review a question of federal law decided by a state court if

the decision of that court rests on a state law ground that is

independent of the federal question and adequate to support the

judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991).

The state law ground is “independent” if it is not interwoven

with federal law. La Crosse v. Kernan, 244 F.3d 702, 704 (9%

Cir. 2001). For the law to be “adequate,” it must be “clear,

consistently applied, and well-established” at the time of the

purported default. Calderon v. U.S. Dist. Ct., 96 F.3d 1126,

1129 (9th Cir. 1996) (citations omitted), cert. denied, 520 U.S.

1204 (1997).

We have held that California’s contemporaneous objection

tule is independent and adequate in some cases. See, é.g.,

Bonin v. Calderon, 59 F.3d 815, 842-83 (9th Cir. 1995)

(sustaining state court’s finding of procedural default where

defendant failed to make any objection at trial). However, the

recent decision in Melendez v. Pliler, 288 F.3d 1120 (9th Cir.

2002), is instructive. “We held more than

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