Opinion
C 02-2066 CRB (PR)
August 4, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Lake of infliction of injury upon a cohabitant, false imprisonment and possession of a dirk or dagger. The jury acquitted him of attempted murder and assault with a deadly weapon, and, on November 3, 2000, the court sentenced him to four years in state prison.
Petitioner appealed, but the California Court of Appeal affirmed the judgment of conviction and the Supreme Court of California denied review. Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on July 11, 2002, the court found that the petition, liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
In February 2000, appellant and Jennifer Frolich began to live together. Frolich used methamphetamine regularly and also used heroin. Around June 12, 2000, Frolich entered a battered women's shelter, and was sober for five days. On June 18, 2000, she resumed living with appellant in his RV. That same day, after an argument, Frolich went to sleep, and woke up to appellant pouring a bottle of shampoo on her face. She tried to go back to sleep, but woke up again, as appellant poured conditioner on her stomach. He then poured wax on her side, causing her pain, and she asked him to stop. She tried to get away, but he followed her, grabbed her hands, and wrenched then behind her back, and tore her clothes. When she tried to get to the door, he held her by her hair, and tried to bring her head down onto the countertop, but she resisted, and he finally let her go.
Around July 16, 2000, appellant asked Frolich to go with him to his family cabin. By this time they each had a restraining order against the other. They traveled together without incident, until a fight started after they ate dinner, and smoked methamphetamine. Frolich, hoping to avoid escalation of appellant's anger, hid from appellant at the campground where they were staying, and lay down on the dirt. Appellant eventually found her, and she went with him. She explained that, "in some ways [she] was hoping that [appellant] would find [her] because [she] like being with him," and she did not have anywhere else to go.
When they arrived at the family cabin, another fight began over whether to sleep in the car, or the cabin. When appellant got out of the car, Frolich stayed in. Appellant jabbed her with his crutches through the car window. When she opened the door, and ordered her out, she knew he was very angry, and would not let her stay in the car. She planned to run straight for the cabin, but appellant blocked her with his crutches. A struggle ensued, and they eventually fell to the ground. Appellant hit Frolich several times on the knee and shin with a flashlight, and she started screaming. He threw dirt on her face, which she inhaled. She could not breathe and had dirt in her eyes.
In the meantime, the police, responding to a 911 call, heard Frolich screaming for help as they arrived. As they ran toward her screams, appellant grabbed her as she lay on the ground, thrust his thumb into her mouth, holding her mouth open, and pinning her to the ground. He told her not to scream, saying: "[L]ook at this" At that same moment the police arrived in time to see Frolich on the ground in a fetal position, screaming and crying, and appellant picking up a large rock and raising it overhead. They pulled their guns and ordered appellant to drop the rock. He complied, and they handcuffed and arrested him. They found an ice pick, or dirk, on the ground, and another in appellant's prosthetic leg.
Appellant testified that he was urging Frolich to get out of the car, because he was tired, when she suddenly catapulted herself out with fists clenched. Throughout the ensuing struggle, he only used enough force to defend himself. At some point, he cut his arm on a rock, and was holding the rock to shield himself and show her what she had done. He put the rock down as soon as the deputies ordered him to do so.People v. Ilyin, No. A093088, slip op. at 1-3 (Cal.Ct.App. Nov. 16, 2001) (Resp't Ex. D).
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).
The writ may not be granted with respect to any claim that was adjudicated 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." Id. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
B. Claims
Petitioner claims that he was deprived of his due process right to a fair trial by the trial court's erroneous admission of a prior uncharged incident and expert testimony on Battered Women's Syndrome. Petitioner also claims that he was deprived of his rights to a jury trial and due process by the trial court's giving of CALJIC No. 17.41.1, which he alleges deprived the jurors of freedom of speech and association guaranteed by the First Amendment.
1. Admission of Evidence
A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process.See Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). Accordingly, a federal court cannot disturb on due process grounds a state court's decision to admit evidence unless the admission of the 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); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986).
In order to obtain habeas relief on the basis of evidentiary error, petitioner must show that the error was one of constitutional dimension and that it was not harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). The court must find that the error had "`a substantial and injurious effect' on the verdict.'" Dillard v. Roe, 244 F.3d 758, 767 n. 7 (9th Cir. 2001) (quoting Brecht, 507 U.S. at 623).
a. Prior Uncharged Incident
Petitioner claims that the trial court deprived him of his right to a fair trial by erroneously admitting under California Evidence Code section 1109 evidence of the uncharged June 18, 2000 incident with Frolich — when he poured shampoo, conditioner and hot wax on Frolich, and tried to bring her head down on the countertop. Petitioner specifically claims that the prior incident was not relevant because it did not involve "domestic violence" under section 1109 and its prejudicial effect outweighed it probative value.
The California Court of Appeal found that the June 18, 2000 incident was properly admitted as "evidence of the defendant's commission of other domestic violence" under California Evidence Code section 1109, and rejected petitioner's due process claim on the grounds that the evidence was probative and not particularly inflammatory. The court explained:
Appellant . . . contends that even if this uncharged act qualifies as an incident of domestic violence or abuse, that the court abused its discretion by failing to exclude it under Evidence Code section 352, in violation of his due process rights to a fair trial. We find no abuse of discretion. The prior incident was probative of appellant's disposition to commit acts of domestic violence and was permissible for that purpose. (Evid. Code, § 1109; People v. Brown (2000) 77 Cal.App.4th 1324, 1333; People v. Poplar (1999) 70 Cal.App.4th 1129, 1139.) Appellant's disposition was not merely a marginal issue because he maintained that he merely defended himself when Frolich became physically aggressive. The prior incident was not particularly inflammatory, especially relative to the facts of the charged offenses, and did not consume an excessive amount of time. (See People v. Poplar, supra, 70 Cal.App.4th 1129, 1139.)People v. Ilyin, No. A093088, slip op. at 4 (Cal.Ct.App. Nov. 16, 2001).
The California Court of Appeal's rejection of petitioner's due process claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d). The Supreme Court "has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith, or that it violates due process to admit other crimes evidence for other purposes without an instruction limiting the jury's consideration of the evidence to such purposes." Garceau v. Woodford, 275 F.3d 769, 774 (9th Cir. 2001), overruled on other grounds by 123 S.Ct. 1389 (2003). In fact, the Court has expressly declined to answer these questions. See Estelle v. McGuire, 502 U.S. 62, 75 n. 5 (1992) ("Because we need not reach the issue, we express no opinion on whether a state law would violate Due Process if it permitted the use of "prior crimes' evidence to show propensity to commit a charged crime."). Petitioner is therefore precluded from federal habeas relief on his claim that the admission of evidence of the June 18, 2000 incident violated his federal due process rights. See. e.g., Holgerson v. Knowles, 309 F.3d 1200, 1203 (9th Cir. 2002) (although Supreme Court has clearly established that retroactive increases in the scope of criminal liability by judicial construction are barred by the Due Process Clause, it has not clearly established that retroactive sentence enhancements by judicial construction also violate due process and therefore federal habeas relief on such a claim may not be had under § 2254); see also Alvarado v. Hill, 252 F.3d 1066, 1068-69 (9th Cir. 2001) (The question under § 2254(d) "is not whether [the conviction] violates due process as that concept might be extrapolated from the decisions of the Supreme Court. Rather, it is whether [the conviction] violates due process under `clearly established' federal law, as already determined by the Court.").
In light of the limiting instruction given in this case, the state courts' rejection of petitioner's due process claim is in fact more in conformity with, rather that in violation of, clearly established Supreme Court precedent. See. e.g., Spencer v. Texas, 385 U.S. 554, 558, 563-64 (1967) (holding that it is not a violation of due process to admit other crimes evidence, for purposes other than to show conduct in conformity therewith, where the jury is given a limiting instruction "that it should not consider the prior conviction as any evidence of the defendant's guilt on the charge on which he was being tried").
Even if the Ninth Circuit's more generous precedent applied here, petitioner's claim would fail. Under Ninth Circuit law, the admission of other crimes evidence violates due process only if there were no permissible inferences the jury could have drawn from the evidence (in other words, no inference other than conduct in conformity therewith).See McKinney v. Rees, 993 F.2d 1378, 1384 (9th Cir. 1993); Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). And even so, the evidence must be of such highly inflammatory or emotionally charged quality as necessarily prevents a fair trial. See McKinney, 993 F.2d at 13 84-85;Jammal, 926 F.2d at 920-21. That was not the case here. The evidence of "domestic violence" on June 18, 2000 impeached petitioner's claim that he acted in self-defense on the day of the later incident at issue and, in view of all other properly admitted evidence, was not so highly inflammatory or emotionally charged as to necessarily prevent a fair trial. See id.
Garceau v. Woodford, a pre-AEDPA case in which the Ninth Circuit found that an instruction permitting the jury to consider priors for purposes of establishing propensity violated due process, is distinguishable because in Garceau the prosecution's case was not strong and the evidence of the prior was emotionally charged. See Garceau, 275 F.3d at 775-76.
At minimum, it was reasonable for the California Court of Appeal to conclude that the admission of evidence of the June 18, 2000 incident did not render petitioner's trial fundamentally unfair in violation of due process, "which means that the state court's determination to that effect must stand." Early v. Packer, 123 S Ct 362, 366 (2002). Petitioner is not entitled to federal habeas relief on this claim.
Petitioner is also precluded from federal habeas relief because, after a careful review of the record and overwhelming evidence against him, it cannot be said that the admission of evidence of the June 18, 2000 incident, even if constitutional error, had a substantial and injurious effect or influence in determining the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
b. Testimony on Battered Women's Syndrome
Petitioner claims that the trial court deprived him of his right to a fair trial by erroneously admitting testimony on Battered Women's Syndrome ("BWS"). Petitioner specifically claims that there was no evidence that Frolich was a battered woman and that the testimony on BWS was therefore "without any relevance to the issues tried" and prejudicial.
The California Court of Appeal found that there was ample evidence in the record from which to infer that Frolich suffered from BWS. Among others things, Frolich had previously checked into a Battered Women's Shelter to escape from petitioner, Frolich and petitioner had restraining orders against each other, and the June 18, 2000 incident qualified as an act of domestic violence. People v. Ilyin, slip op. at 4-5. And as to relevance, the court noted that the fact that Frolich "return[ed] to her alleged abuser, and even testif[ied] that after hiding from him to escape his anger, she hoped he would find her, and she liked to be with him, . . . made the BWS testimony probative of an issue in the case." Id. at 5. The court explained further:
It is true that this case did not involve the common circumstance in which the witness recants her accusations, and BWS testimony is admissible to explain that a victim suffering from BWS may even falsely deny that her abuser attacked her, to protect him, or because she believes she needs him, or out of fear. (Cf. People v. Gadlin, [(2000)] Cal.App.4th 587; People v. Morgan (1997) 58 Cal.App.4th 1210, 1215.) However, appellant maintained that it was Frolich who was violent, and difficult, and appellant and Frolich told two radically different stories about the fight that ended when the police arrived and ordered appellant to drop the rock. Absent testimony regarding BWS the jury might infer from the fact that Frolich kept returning to appellant, that she was not afraid of him, and that her testimony was false. Although it was still free to draw that inference if it credited appellant's testimony, BWS testimony is admissible for the purpose of explaining something beyond the jury's common experience, i.e., why a person might return to a person who has inflicted physical abuse. (See People v. Williams (2000) 78 Cal.App.4th 1118, 1128.) Contrary to appellant's suggestion, the BWS testimony was not offered for the purpose of proving appellant's intentions when he was found holding a rock above Frolich's head, but rather for the recognized proper purpose of providing the jury with an alternative interpretation of Frolich's behavior, that appeared inconsistent with her behavior.Id. at 5-6 (emphasis in original).
The California Court of Appeal's rejection of petitioner's due process claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d). The record shows that there were clearly permissible inferences which could be drawn from the BWS evidence and that the evidence was not "of such quality as necessarily prevents a fair trial." Jammal, 926 F.2d at 920 (9th Cir 1991) (citation and internal quotation marks omitted). In addition, the trial court gave the jury a limiting instruction with respect to the BWS evidence and petitioner had an opportunity to rebut the prosecution's position that Frolich was a battered woman. See Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997) (juries are presumed to follow a court's limiting instructions with respect to the purposes for which evidence is admitted). Petitioner is not entitled to federal habeas relief on his claim that the admission of testimony on BWS denied him a fair trial.
Petitioner is also precluded from federal habeas relief because, after a careful review of the record and overwhelming evidence against him, it cannot be said that the admission of testimony on BWS, even if constitutional error, had a substantial and injurious effect or influence in determining the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
2. CALJIC No. 17.41.1
Petitioner claims that the trial court's giving of CALJIC No. 17.41.1 deprived him of his rights to a jury trial and due process by chilling the jurors' right to free speech and association during deliberations. The instruction provided:
The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate, or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation.
Clerk's Tr. at 188; accord Rep. Tr. at 357; CALJIC No. 17.41.1 (1998 rev.). According to petitioner, the instruction invades the secrecy of jury deliberations and chills free and open debate, especially by jurors who hold a minority view.
The Supreme Court of the United States has not handed down a decision on the constitutionality of CALJIC No. 17.41.1 or a similar jury instruction requiring jurors to report misconduct. Recently, however, the Supreme Court of California reviewed CALJIC No. 17.41.1 and found that it did not violate a defendant's Sixth Amendment right to a jury trial because the constitutional right does not require "absolute and impenetrable secrecy for jury deliberations in the face of an allegation of juror misconduct," or "constitute an absolute bar to jury instructions that might induce jurors to reveal some element of their deliberations." People v. Engleman, 28 Cal.4th 436, 443 (2002). The state high court nonetheless exercised its supervisory power and directed that CALJIC No. 17.41.1 not be given in future trials due to the potential to lead members of the jury to "shed the secrecy of deliberations" and to "draw the court unnecessarily into delicate and potentially coercive exploration of the subject matter of deliberations." Id. at 447.
The California Court of Appeal rejected petitioner's claim while the validity of CALJIC No. 17.41.1 was still pending in the Supreme Court of California. It held that, even if it was error to give CALJIC No. 17.41.1, the error was harmless. People v. Ilyin, No. A093088, slip op. at 6 (Cal.Ct.App. Nov. 16, 2001). "Appellant has made no showing of prejudice. There were no holdout jurors, no jury deadlock, and no reports that a juror was refusing to deliberate or follow the law. The jury reached a unanimous verdict on all four counts in under three hours."Id.
In order to be entitled to federal habeas corpus relief, petitioner must show that CALJIC No. 17.41.1 by itself so infected the entire trial that the resulting conviction violated due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). He has not done so. He has not shown that there is a "reasonable likelihood" that the jury applied the instruction in a manner that violated the Constitution. See id. And in the absence of any Supreme Court precedent to the contrary, it simply cannot be said that the mere giving of CALJIC No. 17.41.1 was a violation of "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1).
Nor is there any reason to believe that the giving of CALJIC No. 17.41.1 here had a substantial and injurious effect on determining the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). As the state appellate court noted, there is no indication of holdouts jurors, deadlocks, or reports of juror misconduct that might raise suspicions that the jury instruction stifled free and fair deliberation.See People v. Ilyin, slip op. at 6. Petitioner is not entitled to federal habeas relief on his jury instruction claim.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.