Opinion
No. C 02-1270 MMC (PR)
February 26, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, a California prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. Because the petition did not contain any claims, it was dismissed with leave to file an amended petition setting forth petitioner's claims, Petitioner filed a timely amended petition. The Court found that, liberally construed, petitioner's amended petition stated a cognizable claim that his right to due process was violated by the admission in evidence of two prior drug offenses. The Court ordered respondent to show cause why the amended petition should not be granted, and respondent filed an answer denying the amended petition, along with a supporting memorandum and exhibits. Petitioner has not filed a traverse.
BACKGROUND
Petitioner was tried in Alameda County Superior Court on charges of possession of heroin with intent to sell. Oakland Police Officer Devin Underwood ("Underwood") testified that on January 10, 2000, he received information that an undercover officer had purchased illegal drugs from two men, later identified as Roman Taylor ("Taylor") and Charles Rose ("Rose"), on the corner of 14th and Peralta Streets in Oakland, California. Underwood and two other officers arrived at the scene within 10 seconds. As he tackled Taylor to the ground and handcuffed him, Underwood saw petitioner, who was approximately five feet away, raise his arms and discard seven "twists," i.e., knotted plastic packets. As the twists flew toward him, Underwood recognized that they contained heroin. Rose, Taylor and petitioner were arrested. Subsequent tests confirmed that the twists contained heroin. At the trial, an expert witness called by the prosecution testified that such twists were commonly sold one or two at a time at the location in question. Additionally, the prosecution introduced evidence of two of petitioner's prior convictions, for possession of cocaine for sale in 1988 and 1993, respectively, as well as the facts underlying those convictions.
Rose fled and was caught by other officers.
The prosecutor had filed a pretrial motion seeking the admission of this evidence. The trial court issued a tentative pretrial ruling allowing the evidence and finalized the ruliing during the course of the prosecution's case-in-chief.
Taylor was called as a defense witness and testified that petitioner had just walked up when the police arrived and that petitioner did not throw anything to the ground. Petitioner testified that he was walking around the corner when the officers told him to get down, and that he complied. He further testified that he never possessed the twists of heroin found at the scene.
The jury convicted petitioner of the charges. On April 28, 2000, the trial judge sentenced him to seven years in state prison. The California Court of Appeal affirmed, finding no error in the admission of the evidence of petitioner's two prior drug convictions. The Supreme Court of California, in a summary opinion, denied the petition for direct review.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000).
B. Legal Claims
Petitioner claims that the admission of evidence regarding two prior convictions for possession of cocaine for sale violated his right to due process. A state court's admission of evidence infringes a defendant's constitutional right to due process if the evidence rendered the trial fundamentally unfair. See Pulley v. Harris, 465 U.S. 37, 41 (1984). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). The admission of evidence, however, only violates due process if there are no permissible inferences that the jury may draw from such evidence. Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).
Here, the trial court admitted the evidence of petitioner's prior convictions pursuant to California Evidence Code § 1101(b). Section 1101(a) precludes the use of evidence of a person's character to prove that person's conduct on a specified occasion. Section 1101(b), however, provides an exception where the evidence is "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake . . .) other than his or her disposition to commit such an act." See Cal. Evid. Code. § 1101. Following a hearing at which the trial court balanced the probative value of such evidence against its prejudicial effect, the trial court admitted evidence that in 1988 petitioner had been convicted of possession of cocaine for sale after he sold two small rocks of cocaine to a police officer and that in 1993 petitioner had been convicted of possession of cocaine for sale after police found that he had stashed 34 balloons of cocaine in a fence post. The trial court admonished the jury that it could consider the evidence only for the limited purpose of determining whether petitioner had the specific intent to sell heroin at the time of the offense in question.
Additional prior convictions were not admitted.
Petitioner claims there was no need to admit this evidence to demonstrate his specific intent to sell heroin because intent was not at issue. Petitioner is incorrect. Concededly, petitioner's primary defense was that he did not possess the heroin, not that he possessed the heroin but only for personal use. Nevertheless, because petitioner was charged with possession with intent to sell, intent was one of the elements the prosecutor was required to prove. The defense did not stipulate that if petitioner possessed the heroin, he possessed it for sale. Indeed, on cross-examination, defense counsel challenged the expert's opinion as to the purpose for which the drugs were possessed and, in closing, argued at considerable length that the evidence of intent to sell was insufficient.
Defense counsel argued, inter alia, there was no evidence petitioner was working with a partner or that he had a larger quantity of drugs at his apartment, both of which the prosecution's expert had testified were common practices of dealers; that no money was found in petitioner's possession; and that petitioner could have been sharing the drugs with another person.
Moreover, the prior crimes were sufficiently similar to the charged offense that the jury could reasonably infer from the prior crimes that petitioner had the intent to sell heroin on the occasion in question. The 1988 sale occurred at a location near that where petitioner was arrested in the instant case, and the 1993 incident occurred at the same street corner where petitioner was arrested in the instant case. From the fact that petitioner was twice convicted of intending to sell drugs at or near the same location where he again was arrested in possession of drugs, a reasonable juror could infer that f petitioner's possession of drugs on the date in question was with the intent to sell. Nor was the evidence of petitioner's prior crimes merely cumulative. Although there was testimony that the quantity possessed was more than that ordinarily purchased for personal use, the amount was not so great as to preclude a reasonable argument to the contrary.
Finally, the trial court's weighing of the relative value and prejudicial effect of the challenged evidence, and instructions limiting the use of that evidence to the issue of intent, assured that the admission of the evidence was neither arbitrary nor unfair. See, e.g.,Houston v. Roe, 177 F.3d 901, 910 n. 6 (9th Cir. 1999) (finding admission of similar prior bad acts to show motive and intent, coupled with limiting instructions, was appropriate); Terrovona v. Kincheloe, 912 F.2d 1176, 1180-81 (9th Cir. 1990) (finding admission of testimony as to prior bad acts did not violate due process where trial court balanced probative value against prejudicial effect and gave jury cautionary instruction).
In sum, intent was one of the elements the prosecutor had to prove; intent reasonably could be inferred from the evidence of prior crimes; and such evidence was not cumulative of other evidence of intent. Under these circumstances, given the limiting instructions provided by the trial court, the admission of evidence of petitioner's prior drug convictions rendered the trial neither unfair nor violative petitioner's right to due process.
CONCLUSION
For the reasons stated, the petition for a writ of habeas corpus is DENIED.
All pending motions are terminated and the clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED.
All pending motions are TERMINATED.